Volume 105 — Federal Reporter

<p>3. Circuit Courts op Appeals — Jurisdiction op Constitutional Questions Optional.</p> <p>In any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States the circuit courts of appeals ma.y either (1) decline to take jurisdiction, or '(2), whore other questions are involved, take jurisdiction, and certify the constitutional question to the supreme court, or (3) take jurisdiction, and decide the whole ease in the first instance. 26 Stat. 826, c, 517; Carter v. Roberts, 20 Sup. Ct. 713, 177 U. S. 500, 44 L. Ed. 861.</p> <p>& Same.</p> <p>Whore a dismissal of an appeal would cause a delay of years in the decision of a case of considerable importance which involves a constitutional question, the circuit court of appeals takes jurisdiction, and decides the whole case in the first instance.</p> <p>3. Municipality — Use op Water System and Streets by Private Parties —Transmission op Electricity.</p> <p>In September, 1898, a city passed an ordinance granting to J. and his assigns the right for a term of 25 years to use the water and water system of the city to produce power to generate electricity, and the right to lay conduits, to erect poles, to string wires, and to maintain and operate them in its streets during this term, on condition that the grantees would return the water to the system undiminished in flow, and without pollution; that they would do nothing to impair the efficiency of the water system; that they would complete the driving of a tunnel through a spur of a mountain for the city for the purpose of enlarging its water system and its supply of water; that they would carry its telegraph and telephone wires in their conduits and on their poles, and would furnish the city with a certain amount of electric power and certain electric lights free of cost, and with others at a fixed price during the term of the grant, and that at the end of the term, they would vest in the city the ownership of a certain pipe line and any electrical plant they had then constructed to supply the electric lights. Held, that under the general power to manage and control the property of the city, to light its streets and public places, to manage its water system, and to control and regulate the use of its streets, the city council of the city had lawful authority to pass this ordinance.</p> <p>4 Same — Acceptance of Ordinance — Repeal.</p> <p>After the ordinance of September, 1S9S, had been accepted, and after the grantees had proceeded in the performance of their part of the contract for five months, the city council, in February, 1899, passed an ordinance which, by its terms, repealed the ordinance of September, 1898. Held, the repealing ordinance violated section 10, art. 1, of the constitution, which prohibits the passage of a law impairing the obligation of contracts, and the fourteenth amendment to the constitution, which forbids the takifig of property without due process of law.</p> <p>5. Same — Constitutional Law.</p> <p>An ordinance of a city passed under the legislative authority of a state is a law of that state, within the meaning of that term in the constitution and statutes of the United States.</p> <p>6. Same — Grant for Private Use.</p> <p>A grant by a city of rights and privileges in its streets, parks, public grounds, or water system for private use, — that is to say, a grant from which neither the city, its citizens, nor the public deceive any consideration or derive any benefit, — is beyond the powers of the municipality, and void.</p> <p>7. Same — Grant for Public Purposes.</p> <p>A city has authority, under its general powers, to grant to private parties for public purposes reasonable rights and privileges in its water system, its streets, its public grounds, and its other public utilities, provided that such grant and its exercise do not materially impair the usefulness of these utilities for the public purposes for which they were acquired or dedicated.</p> <p>8. Same.</p> <p>The ordinance of September, 1898, was not for purely private use, but for the public purposes of procuring an enlargement of the water system of the city, ■ of obtaining the use of electric lights for the municipality, and of securing conduits and poles to carry its wires.</p> <p>9. Same — Private Electric Light Plants.</p> <p>The Colorado statute (3 Mills’ Ann. St. p. 1144) which provides that the city councils of cities in that state shall'have power to erect waterworks, gas works, or electric light works, or to authorize their erection by others, only when such works shall be erected or authorized pursuant to a favorable vote of the taxpayers of the cities, applies only to works erected by the cities themselves or by others under contracts with or for the cities. It has no application to such works erected by private parties for their own use.</p> <p>10. Same — Powers.</p> <p>A city has two classes of powers, the one legislative, public, governmental, in 'the exercise of which it acts as a sovereign and governs its. people, the other proprietary, quasi private, business, conferred upon it for the private advantage of its inhabitants and itself.</p> <p>11. Same — Exercise of Its Business Powers.</p> <p>In contracting for the enlargement of its water system, for electric lights for municipal use, and for the use of conduits and poles to carry its wires, a municipality is exercising its proprietary or business powers, is subject to the same rules of law that govern the agreements of private corporations, and its contracts bind its successive sets of officers.</p> <p>12. Same — Control of Public Utilities.</p> <p>The water system and the other public utilities of a city are held by the municipality and its officers in trust- for the public purposes for which they were acquired and dedicated. The city and its officers may not renounce this trust, disable themselves from discharging it, or so divert or impair the public utilities that they become inadequate to accomplish the public purposes for which they were created.</p> <p>13. Same^Utilities Created for Public Purposes.</p> <p>A city and its officers have the authority, and it is their duty,- to apply the surplus power and use of public utilities for the benefit of the munic> ipality and its citizens, provided sneli application does not materially impair their nsel'nlness for the public purposes for which they were created.</p> <p>14. Same. •</p> <p>A city council has authority, under its general powers, to lease to private parties the use of the water flowing through its water system to enable them to generate power to create electricity, where such lease does not impair the usefulness of the water or the system for the municipal purposes for which they were obtained by the city.</p> <p>15. Contracts — Delay in Performance — Forfeiture — Enforcement in Equity.</p> <p>A court of equity will not enforce a forfeiture of the rights and privileges of tho grantees in a contract for tlieir failure to complete their performance of it in time, where the party seeking the forfeiture was guilty of the first breach of the agreement, and failed to pay installments due under it while the work was In progress until compelled to do so by judgments of the courts, and had persistently endeavored 1o revoke and annul the grant, while the grantees were vigorously prosecuting their part of the work under it, which they had, within the time limited by the agreement, substantially performed, although they had not completely finished it.</p> <p>(Syllabus by the Court.)</p>

In Equity. Suit to enjoin the sale oí property on execution.

<p>1. Fraudulent Conveyances — Consideration—Parent and Child.</p> <p>An agreement by a father to pay ids son wages after his majority, when made before the services are rendered, will support a conveyance of properly in payment of such wages after they have been earned, as against other creditors of the father.</p> <p>2, Same — Legality of Preference.</p> <p>Unless prohibited by statute, a debtor may give a preference to a member of bis family to whom he is justly indebted, by conveying property to him. although he is insolvent, and suits hy other creditors are pending against him, of which the grantee has knowledge.</p>

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

<p>Constitutional Law — Equal Protection on Laws — Statute Allowing Damages and Attorney’s Fees against Insurance Companies.</p> <p>Rev. St. Mo. 1899, § 8012, providing that “in any action against any insurance company to recover the amount of any loss under a policy,” if it appear from the evidence that such company has vexatiously refused to pay such loss, the court or jury may allow the plaintiff damages, not exceeding 10 per cent, on the amount of the loss, and a reasonable attorney’s fee. is in violation of the fourteenth constitutional amendment, as denying to insurance companies the equal protection of the laws by subjecting them to penalties which are not imposed on their adversaries or upon other litigants. The business of insurance is not'of such character as to render insurance contracts, or actions thereon, proper subjects for discriminative legislation, under the police powers of the state; nor is the fact that payment must have been “vexatiously refused,” to subject the defendant to the penalty, material, since no corresponding penalty is incurred by the plaintiff in case the suit is vexatiously brought.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Tliomas Persons, now dead, was the father of the parlies to lliis suit. Prior to his death he was the holder and owner of a note and mortgage for $1,800, executed by one Harvey E. Keene and wife. In 1892 he gave to his son Phineas P. Persons a general power of attorney to act for him concerning all the properly and business he might have in the states of Minnesota and North Dakota. In 1897, Thomas, the father, assigned the mortgage in question by a written bill of sale to his son Simon E. Persons. The complaint alleges that after the assignment of the mortgage to Simon, and with full knowledge of that assignment, Phineas I’., acting under cover of the authority conferred on him hy the power of attorney executed by his father to him in 1892, collected the money due on the mortgage, and refused to account to Simon E. therefor. This action was brought at law to recover that money. The answer admits the execution of the Keene mortgage to Thomas Persons, and the assignment thereof by him to his son Simon, but alleges the assignment was made in trust for certain alleged purposes set, out in the answer; and tlie answer also alleges that Thomas, the father, afterwards annulled and abrogated the assignment. Simon E., the defendant in error and plaintiff below, testified that (lie assignment of the mortgage to him by his father was absolute and unconditional, and made upon a valuable consideration, and imposed no trust on him whatever for any purpose, and that it was never annulled or revoked by his father. On the other hand, Phineas P., the plaintiff in error and defendant below, testified .to the contrary, and that the assignment of the mortgage was made conditionally, and upon -certain trusts, and, moreover, that it was afterwards annulled and revoked by the father. Under the charge of the court, to which no exception was taken, the jury found the issues in favor of the defendant in error, Simon E., and the defendant below removed the case into this court by writ of error.</p>

Action of Ejectment. The defendants Albert O. Holmes and Susan L. Holmes, his wife, have tiled separate answers, each claiming- the land in controversy.

<p>1, Trial — Instructions JOmuoiukd in General Charoe.</p> <p>It is not error íor a trial court to refuse to give instructions to the jury in the language of counsel, where the substance oí these instructions is embodied in its general charge to the jury.</p> <p>3. Same.</p> <p>Where a general charge correctly states the law oí a case, but does not eliminate and set forth the crucial issues which the jury is to determine, or specifically apply the law to those issues, either parly is entitled, upon request, to additional instructions from the court which clearly and tersely state to the jury the very issues which they must determine from the evidence, and the law specifically applicable to those issues.</p> <p>(Syllabus by the Court.)</p>

<p>In Bankruptcy. On motion by bankrupt to set aside adjudication and dismiss petition.</p>

In Bankruptcy. On exceptions to order of referee directing payment of a certain sum to the trustee, and on certificate of referee.

<p>In Error to the District Court of the United States for the District of South Dakota.</p> <p>The defendant was indicted, under section 8893 of the Revised Statutes of the United Stab's, for depositing in the post office, to ho mailed and delivered, obscene, lewd, and lascivious letters, and letters giving information where, how, and of whom articles and tilings could he obtained for the procuring of an abortion. The first trial of the case was a mistrial. 94 Fed. 356. A second indictment was preferred against the defendant, which was consolidated with the second, fourth, and fifth counts of the first indictment; a demurrer to the other counts of that indictment having been sustained. On the second trial the defendant was convicted on the fifth count of the first indictment, and the first, second, third, and fourth counts of the second indictment, and sentenced to imprisonment at hard labor for two years on the conviction under each of the counts, the sentences to run concurren I ly. The defendant reserved exceptions at the trial, and has removed the case into this court by writ of error.</p>

<p>1. Patents — Construction of Claims — Parer Patents.</p> <p>While the fact that a patented device lias not gone into practical use does not necessarily defeat tiie patent, yet, with reference to construing the claims, it necessitates caution to avoid going beyond what the actual invention clearly shows.</p> <p>2. Same — Suit for Infringement — Accounting.</p> <p>It seems that the court will not appoint a master in a patent cause in equity, where it, is apparent that the damages will be trivial or disproportionate to the expense of taking the accounts.</p> <p>3. Same — Injunction—Laches.</p> <p>The defense of ladies is not ordinarily effective to bar injunctions against infringers who have been seasonably notified of the patentee’s rights, when it appears that the complainant was disabled from carrying on litigation by lack of financial means.</p> <p>4. Same — Infringement—Electrical Apparatus.</p> <p>The Bradford patent, No. 535,158, for a method of, and apparatus for, regulating electric circuits, constated, and held not infringed.</p>

<p>-Patents — Invention—Steam-Pipe Covering.</p> <p>The Shearer patent, No. 456,661, for a steam-pipe covering, composed of alternate layers of plain and corrugated noncombustible material, the longitudinal air spaces formed by the corrugations being closed at the ends of the section by asbestus or similar material, embodies a combination of elements all of which were old in the art, and none of which perform new functions, either separately or in combination, and, in view of prior patents, is void for lack of invention.</p>

<p>Patents — Invention—Uppers for Laced Shoes.</p> <p>The Benjamin patent, No. 552,506, for improvements in uppers for laced shoes, claim 3, which covers the placing of a strip or cushion piece under the projecting bases of the eyelets or hooks, so as to present a smooth surface to the wearer, is void for lack of invention.</p>

<p>1. Pilots — Obligation to Take — Foreign Ports.</p> <p>In Consol. Act N. Y. 1882, § 2119, which requires domestic vessels navigating under a coasting license from the United States to take a licensed pilot on entering or departing from the port of New York, only when such vessels are from a foreign port, whether the words “foreign port” mean a - port within the sovereignty and dominion of a foreign nation, qusere.</p> <p>2. Shipping — License for Coasting Trade — Porto Rican Ports.</p> <p>Section 9 of the Porto Rico act of April 12, 1900 (31 'Stat. 79), which provides for the nationalization of all vessels owned by the inhabitants of Porto Rico, and for their admission to all the benefits of the coasting trade of the United States, and that “the' coasting trade between Porto Rico and the United States shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts of the United States,” extends and makes applicable the privileges and restrictions of the coasting trade of the United States not only to trade, but also to navigation between the ports of Porto Rico and those of the United States; the words “coasting trade” having been used and construed as extending to the navigation by means of which such trade was carried on in the Alaskan act of 1808.</p> <p>3. Pilots — Obligation to Take — Vessels from Porto Rioan Ports Exempted.</p> <p>Rev. St. § 44.44, exempts all steam vessels sailing under license from the United States, and employed in the coastwise trade, from the pilotage laws of the states. Consol. Act N. Y. 1882, § 2119, requiring foreign vessels and vessels from a foreign port to take a licensed .pilot on entering or departing from the harbor of New York, exempts from its provisions domestic steam vessels licensed and engaged in the coasting trade. Held that, under the provisions of either statute, domestic steam vessels, licensed hy the United States since the passage of the Porto ltico act of April 12, 1900, and entering the port of New York from Porto Itican ports, were exempted from the payment of pilotage charges imposed hy the state statute.</p>

<p>Appeal from the District 'Court of the United States for the Southern District of New York.</p> <p>This is an appeal from a decree in favor of libelants awarding damages for failure of respondents, owners of the steamer Strathallan, to deliver cargo laden on board said steamer at the usual and customary place in New York. The great bulk of the cargo was tea.</p>

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

This case was tried in the circuit court on the following agreement, signed and filed September 2,1898: “It is hereby agreed, as a matter of fact, upon the submission of this cause by the undersigned solicitors, respectively, for complainant and defendant and cross complainant and respondent, that all technical matters in respect to pleadings and proceedings shall be waived; that the matters alleged in the cross bill shall be deemed to be facts in issue without the necessity…

<p>In Equity. Suit to annul a contract and to dissolve a combination as illegal under the anti-trust law.</p>

This is a hill filed by Russell A. Alger to procure a rescission of the sale of a large.tract of wild mountain land in Franklin county, Tenn.

For opinion below, see 89 Fed. 295. This appeal involves the right of a «'editor of a mortgagor, a quasi public corporation, to a preference in payment over a prior mortgagee.

<p>1. Judgments — Collateral Attack.</p> <p>In a suit for the partition of lands which were subject to the lien of certain judgments, the court cannot, on distribution of the proceeds of the lands after their sale, inquire into the consideration of the notes on which a senior judgment was rendered, for the purpose of giving a later judgment priority.</p> <p>2. Same — Conclusivenbss—Judgment Entered on Warrant of Attorney.</p> <p>A judgment entered on a warrant of attorney, under the established law of Pennsylvania, until reversed or set aside, has all the qualities and conclusive effect of a judgment on a verdict.</p> <p>8. Same — Impeachment for Fraud — Junior Lienholder.</p> <p>While the holder of a junior judgment may collaterally impeach a senior judgment for fraud against himself, to the extent of defeating the priority of lien, he cannot do so on the ground merely that the judgment was fraudulent as against the defendant.</p> <p>4. Promissory Note — Consideration—Indebtedness of Ancestor.</p> <p>A note given by heirs for a debt of their ancestor, which was enforceable against his estate, although it had ceased to be a lien upon his realty, is not without consideration, so that a judgment rendered thereon can be impeached by the holder of a junior judgment against the makers, in, the absence of fraud or collusion to defeat the rights of such junior creditor.</p> <p>5. Exemption — Waiver.</p> <p>Under the law of Pennsylvania, the right of exemption is a personal privilege, which may be waived; and a waiver of such right in a note under seal, which has passed into judgment, is irrevocable.</p>

<p>National Banes — Assessment on Shareholders — Liability of Pledgee.</p> <p>A pledgee of shares of stock in a national bank, with a power of attorney in blank to transfer the same indorsed thereon and signed by the pledgor, does not become liable as owner for an assessment thereon by causing them to be transferred on the books of the bank to a third person for the purpose of being held by him. as trustee for both parties, and in accordance with the contract of pledge, although the pledgor, did not expressly authorize such transfer.</p>

<p>I. Costs — Trial before Special Master.</p> <p>Where an action at law is referred by agreement to a special ipaster, who tries and determines all questions of both law and fact, the proceeding before him is equivalent to a trial by the court or jury, for the purpose of the taxation of costs, under Rev. St. § 824, and the successful party is entitled to a docket fee of §20; but the testimony of witnesses, given orally before the master for the purpose of such trial only, although taken by a stenographer and returned with his report, does not constitute “depositions takeú and admitted in evidence in a cause,” for each of which a fee of $2.50 may be taxed.</p> <p>3. Same — Witness Fees.</p> <p>The fees of a witness are taxable, where his attendance and examination were required in good faith, although he was not served with a subpcena.</p> <p>3. Same — Service of Subpoenas.</p> <p>A charge by a sheriff for serving subpoenas in an action in a federal court cannot be taxed as costs where it is not shown that he was acting for the marshal.</p>

This case was determined below on a demurrer to the plaintiff’s petition, which was sustained, and a final judgment was entered against the Passaic Print Works, the plaintiff below, it having declined to plead further. The plaintiff’s petition contained the following allegations: That the plaintiff was a corporation organized under the laws of the state of New Jersey, and engaged in the manufacture of prints or calicoes at Passaic, in that state.

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

<p>On Demurrer- to Complaint.</p>

The following general statement of the case is found in the transcript, apparently agreed to by all the counsel representing the various parties in interest: On the 24th day of April, A. L. 1899, J. O. Whitener, bankrupt, filed his petition in bankruptcy. The schedule made by Whitener disclosed no assets.

<p>Deportation oe Chinese — Burden oe Proof — Merchants.</p> <p>The burden rests upon a Chinaman arrested for deportation, as being unlawfully within the United States, to prove that he belongs to one of the privileged classes named in the statute; and when he claims to be a merchant he must show a fixed place of business, and sueh frequent sales of merchandise as entitle him to be considered a merchant, within the ordinary meaning of the term, or an actual and substantial interest in some firm of such merchants.</p>

In Equity. Suit for infringement of patent. On demurrer to bill. The demurrer is aimed at a supposed defective link in the chain of complainants’ title. The letters patent in question were granted May 7, 1895, to the complainant Fred Winkler and Lenhart Winkler. Lenhart Winkler died, intestate, November 10, 1898. He was a resident of Indiana. His widow Mary Winkler and his minor child Edward Winkler were his only heirs at law and next of kin.

<p>Supplemental opinion. For original opinion, see 97 Fed. 813.</p>

<p>1. Jurisdiction of Federal Courts — Citizenship of Parties.</p> <p>A federal court is without jurisdiction of a suit by two plaintiffs, one-of whom is a citizen of a state and the other of a territory, against citizens of another state; and where the facts appear in the record, the objection may be taken at any stage of the proceedings.</p> <p>2., Sami: — Amendment after Trial — Change of Parties.</p> <p>An amendment of the record cannot be allowed after trial to confer' jurisdiction which did not in fact exist at the time the suit was commenced or tried; as by striking from the record in a suit in a federal court the name of a plaintiff, whose citizenship deprived the, court of jurisdiction, upon an assignment of his interest in the cause of action to'his eo-plainliff after the trial.</p>

Action at law against the Great Northern Railway Company and two of its servants, as defendants, to recover damages for having caused the death of the plaintiff’s husband by negligence.

Previous to March 12, 1894, John W. Corwine was the owner of an undivided one-fourth interest in certain tracts of valuable land in Pike and Ross .counties, Ohio, all of which together contained about 4,000 acres. The other undivided three-fourths were owned, one-fourth by his wife, and two-fourths by his children, in fee.

<p>1. Reference — Exceptions to Findings of Referee.</p> <p>Where a cause is, by consent of parties, referred to a master to hear the testimony, and report findings of fact and conclusions of law thereon, exceptions to any part of his report should be submitted in the first instance to the master for his consideration and action, and the court will not consider exceptions taken for the first time after the master has filed his report, and which involve a review of all the evidence taken.</p> <p>2. Specific Performance — Contract for Sale of Stock — Breach.</p> <p>Defendant contracted to sell and deliver to complainants its herd of cattle in Montana at a uniform price per head. Tlio contract stipulated that. 9,000 head should he of a certain class and age, and that for any shortage in that number not delivered before a fixed date defendant should pay complainants $20 per head. A few days before 1he expiration of such time defendant was making a delivery under the contract, and after delivering a part of the number on hand demanded payment therefor before making further delivery. Complainants refused to make sncli payment, except on allowance of the $20 per head for the shortage under the 9,000 delivery, and defendant thereupon refused to make any further delivery. At that time defendant had delivered less than 7,200 head of the 9,000, and did not have the cattle to complete the delivery of the 9,000, nor intend to do so, which fact was known to complainants. Defendant had also assigned the money to be received under the contract to a bank in Missouri, and immediately upon payment such money passed out of its possession or control. Held that, under such circumstances, complainants were justified in their action, and were not guilty of a breach of the contract which precluded them from enforcing- specific performance as to the stock remaining .undelivered.</p> <p>3. Same — Jurisdiction of Equity — Adequate Remedy at Law.</p> <p>A Missouri corporation, doing business in the state of Montana, which has not sufficient assets in that state with which to respond in damages for the breach of a contract for the sale of personal property, may be treated as Insolvent in that state, for the purpose of holding that an action at law for breach of the contract is an inadequate remedy, and of supporting a suit in equity for a specific performance of the contract, as the complainant should not be compelled to resort to a foreign jurisdiction to collect any judgment he might recover.</p>

<p>On Motions for Judgment Non Obstante Veredicto and for a New Trial. - '</p>

<p>Pleading — Variance—Waiver of Objection.</p> <p>Under the liberal provisions of the' Ohio Code which apply to actions at law in the federal courts, where a case has been fairly submitted to the jury upon the evidence introduced without objection, the judgment will not be reversed because such evidence is at variance with the allegations of the pleadings, which might have been amended to conform thereto as of right had seasonable objection been made.</p>

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

<p>Pleading — Action against Municipal Corporation— Sufficiency of Declaration.</p> <p>In an action against a municipal corporation, an allegation in the declaration that a fraudulent oral representation complained of was made by "the defendant” is sufficient, and the plaintiff is not required, either under the common-law rules or the Pennsylvania, procedure act of 1887, to set out the name of the agent through whom it was made.</p>

<p>1. Corporations — Subscriber to Stock — Mistake as to Foreign Laws.</p> <p>The rule that a subscriber to the stock of a corporation of a foreign state is presumed to assent to the laws of such state governing the corporation is not. so rigid as to debar him from relief against the corporation, when no interests of creditors or the public intervene, where l>y reason of the issuance of the stock to him for less than its par value the certificate is void under such laws, of which fact he was ignorant, and he therefore received no consideration for the money paid.</p> <p>2. Same — Issuance op Stock in Violation up Statute — Right of Purchaser.</p> <p>Pub. St. N. H. 1891, e. 149, § 9, which prohibits a corporation from disposing of its stock, with a stated exception, at less than its par value, and chapter 273, § 11, which provides that, if any corporations issue certificates of stock without receiving full payment at the par value of the shares, such certificates shall be void, and the officers who shall take part in such issuance shall be subject to fine and imprisonment, are not to be regarded so much as declaring any general public policy, as establishing regulations governing corporations for the protection of their stockholders and creditors; and, while an action to enforce an executory contract in violation of such provisions cannot be maintained, the penalties which follow their violation where the contract has been executed are only those prescribed by the statute itself. A nonresident who purchases and pays for stock in a corporation of the state at less than its par value, and receives a certificate therefor, in good faith and in ignorance of such provisions, is not precluded by the statute from maintaining an action to recover the money paid, after his certificate has been declared void by the courts.</p> <p>8. Same — Action by Subscriber to Recover Money Paid — Laches.</p> <p>Plaintiff purchased and paid for stock in a corporation of another state, which was issued to him at a price below its par value in violation of the laws of such state, and the certificate was some years afterwards declared void by its courts. Held, that while plaintiff’s ignorance of the statutes, as those of a foreign state, gave him the right to rescind the purchase as having been made under a mistake of fact, if such right was promptly asserted,' he was bound to use reasonable diligence to ascertain the law governing his relations to the corporation, and a delay of eight years before demanding a return of the money paid constituted such laches as would bar him from exercising his option to rescind, and would defeat an action at law for its recovery.</p>

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

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. Appeal from an order of tbe referee directing sale of asset.</p> <p>The following is the opinion of Referee R. A. Gunnison:</p> <p>This matter comes up on the petition of Thomas J. Mangan, Esq., the trustee herein, asking “to be allowed and authorized to make sale by auction” of a certain alleged asset of the bankrupt. Upon this petition an order was made, directing ‘the creditors and all persons in interest to show cause before me on the 16th day of April, 1900, why the prayer of the petitioner should not be granted. On the return day of the order, the bankrupt appeared by attorney and filed an answer to the petition of the trustee, denying certain allegations in said petition. A statement of facts was finally agreed upon. The arguments were heard and briefs filed. ' ■</p> <p>Some years prior to the adjudication of Nelson A. St. John as a bankrupt, Vincent St. John died, leaving a daughter, Julia Cronin, and two sons, Lewis E. St. John and Nelson A. St. John, this bankrupt, him surviving. The will of Vincent St. John, the father of this bankrupt, contained, among other provisions, the following: “Third. I give, bequeath, and devise unto my executors hereinafter named the sum of $10,000 in trust, to be safely invested in either United States bonds, or bonds of the state of New York or of the city of Binghamton, or upon bonds secured by mortgages which are first liens upon improved real estate lying in the state of New York, worth double the amount so invested, besides buildings, bearing lawful interest, payable annually or semiannually; and the interest or income derived from such investment (or such portions of such income as they shall deem necessary for her maintenance and support) they shall pay over semiannually to my daughter, Julia. I also devise and bequeath to my said executors in trust, the sum of $500, which I direct them to apply for the sole use and benefit of my said daughter, Julia, in such manner and at such times as they, in their discretion, may deem proper and necessary. At the decease of my said daughter, leaving a child or children her surviving, I give said sum of $10,000 and any unexpended balance herein bequeathed, for the benefit of my said daughter Julia, to such child or children in equal shares. In case of the decease of -my said daughter, Julia, leaving no child or children, I give and bequeath said sum of $10,000 and said unexpended balance before mentioned, if any, to my two sons, Lewis E. St. John and Nelson A. St. John, share and share alike.”</p> <p>It is contended by the trustee herein that under the last sentence of the third clause of the will of Vincent St. John, deceased, quoted above. Nelson A. St. John, this bankrupt, took an interest in the said $10,000 of his father’s estate, which by section 70, subd. “a,” cl. 5, Bankr. Act 1898, became, on his adjudication as a bankrupt, a part of his estate in bankruptcy, and as such the title thereto passed to the trustee of said estate upon the appointment and qualification of said trustee. In other words, the trustee claims that the bankrupt’s interest under that sentence is an estate alienable under the statutes of the state of New York, whether the interest of said St. John he a vested or a contingent remainder. On the other hand, the bankrupt contends that, under said sentence and clause of his father’s will, whatever Interest may have come to him was not alienable; that his Interest therein is a contingent remainder, dependent upon two contingencies: (1) As to whether his sister, Julia Cronin, the beneficiary under the trust created in said clause, shall leave a child or children surviving on her decease; and (2) upon Ms (the bankrupt’s) surviving his sister, the said Julia Cronin; and that unless she dies without leaving child or children, and before his death, he cannot receive any benefit from such bequest, and that this bequest is such a contingent remainder that it cannot be liable for his debts, and is in no way liable under the bankruptcy laws, and cannot be tdken, sold, or applied towards the payment of the creditors of this bankrupt.</p> <p>Tlie facts in relation to Julia Cronin, this beneficiary, are that she is now living, at the age of 58 years. She is married and has no living children, nor has she ever had a child. On his argument the bankrupt’s attorney laid some stress upon the possible adoption of a child by’Julia Cronin. The question of adoption will he considered later.</p> <p>The sole question to he det ermined in this matter is, had Nelson A. St. John, this bankrupt, at the time of his adjudication in bankruptcy, such an interest in (he $10,000 bequeathed by Vincent St. John, and now held in trust for Julia Cronin, as, under section 70, subd. “a,” cl. 5, of 1lie ac1 of bankruptcy wonld pass to the trustee as an asset of his estate? If the interest of Nelson A. St. John under the will of Vincent St. John is one which prior to the filing of his petition lie could by any means have transferred, or which might have been levied upon and sold under judicial process against him, then it becomes a part of the estate, and upon tile appointment and qualification of a trustee the title thereto a1 once vests in said trustee. In order to determine the nature of the interest of Nelson A. St. John herein, we must resort to the definitions in the statutes of New York state. In the personal properly law of New York state it is provided: “In all oilier respects, limitations of future or contingent interests in personal property shall he subject to the rules prescribed in the first chapter of this act in relation to future estates in lands.” 2 Itev. St. N. Y. (Banks & Bro.) p. 1857, c. 4, tit. 4, § 2.</p> <p>The bankrupt’s first contention, that the interest of Vincent St. John in this matter is a contingent interest, subject to be devested by the decease of Julia Cronin, leaving child or children her surviving, may be, and possibly is, sound. As to whether it is or is not a contingent interest will be discussed hereafter. The bankrupt urges the possibility of the adoption of a child by Julia Cronin, anil that the survival of Julia Cronin by such adopted child would devest the bankrupt of any interest he might have under the law. Such a contingency is at once disppsed of by the statutes of this state, which provide: “But as respects the passing and limitations whether of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor child is not deemed the child of the foster parent so as to defeat the rights of remaindermen.” 5 Rev. St. (Banks & Bro.) p. 823; Laws 1896, c. 272, § (it. The adoption of a child by Julia Cronin would in no way affect the interest of Nelson A. St. John. The only contingency that could affect, his interest would be the survival of a child horn of Julia Cronin.</p> <p>The bankrupt’s second contention, that he must survive Mrs. Cronin before he can receive any benefit from such bequest, is as unsound as is that as to the adoption of a child. The same question was raised in Roosa v. Harrington, reported ill 31 Misc. Rep. at page 529, 65 N. Y. Supp. 601. The provisions of the will in the case above cited were similar, if not identical, with those herein. Latham Cornell died, leaving a will in which lie provides a trust fund for the use of his grandson, Charles W. Cornell, during his natural life, and that, on death of said Charles without issue surviving, the trustees were directed “to pay said principal [i. e. the trust fund] on his death to my said son, William W. Cornell, and my said daughter, Sarah E. Harrington, to be equally divided among them.” It will be noted that the provisions of the two wills are almost identical. The son, William W. Cornell, died intestate, leaving no widow or children; the daughter, Sarah E. Harrington, died, leaving a will and three children. The grandson, Charles W. Cornell, died, leaving no widow or issue. The matter comes up in two actions, — one brought by the trustee for an accounting and distribution of the trust funds in his hands; the second by the widow of the testator, asking for a judicial construction of the will, and for the payment to her of one-third of the personalty. The judge says: “The fundamental question presented for determination under this will is whether the gift to the son, William W. Cornell, and to the daughter, Sarah E. Harrington, upon the termination of the trust estate for the benefit of .Charles W. Cornell, is a gift to take effect in the future, or did it vest in the son and daughter at the death of the testator?” The authorities need not be cited in support of the well-settled general propositions that in the construction of wills the law favors vesting and disfavors intestacy. The same situation would b,e presented here, were Nelson A. St. John and his brother, Lewis E. St. John, to die before their sister, the beneficiary, and the same condition as to the intestacy of Vincent St. John would arise, so that in respect to this matter the opinion in Roosa v. Harrington, above cited, is on all fours. Judge Chester, after carefully considering the Revised Statutes,.as re-enacted in the real property law, holds: “These future estates vested in William W. and Sarah E. at the death of the testator.”</p> <p>The bankrupt also cites in support of his contention that “his interest cannot be liable for his debts, and is in no way liable under the bankruptcy laws, and cannot be taken and sold or applied towards the payment of the creditors of this bankrupt,” the case of In re Hoadley, 3 Am. Bankr. R. 780, 101 Eed. 233, which is the only decision on this question under the present law which I have been able to find. The case is somewhat similar to the one under consideration, but differs from it because the bequest considered therein was uncertain as to the person or persons who are to take. In that case all bequests are to a class yet undetermined; that is, to the heirs. In the case under consideration the persons who would take on the determination of the precedent estate are named. The trustee in the Hoadley Case cites many of the cases cited by the trustee herein, in support of his position, and Judge Brown, in determining the case, says: “In the other case above cited, that is, the case cited by the trustee, the persons to ultimately take were named in the will. There was no uncertainty as to the person, but only as to the event which might defeat their right. They were regarded, therefore, as having a present right or interest in a future, expectant estate, which by the said statute is devisable and alienable.” That is the exact condition of affairs here. The persons who are to take ultimately are named in the will. There is no uncertainty as to them, but only as to the event which may defeat their right. They have, therefore, a present right or interest therein. Judge Brown concludes: “Upon the view, therefore, that the testators here intended no present gift of any estate or interest in expectancy or otherwise to pass to either of the bankrupts, and none until the death of the beneficiaries for life, and then only to persons then living, that until then the trustees under the will held the entire estate, and that until then the bankrupts have no interest capable of being devised or aliened. The report is confirmed. And the application of the trustee in bankruptcy is denied.” I think it will be evident that the decision of Judge Brown is based upon terms of a will entirely different from those in this case. Under the will here considered, the point urged by the trustee is, first, that the interest of Nelson A. St. John vested upon the death of the testator. Under the common law of this state 'and the cases thereunder decided prior to the adoption of the Revised Statutes, there was much uncertainty and confusion upon the subject ■of vested and contingent remainders, and many of the cases cited by the bankrupt are of that kind. It was the purpose of the revision of the statutes of this state to avoid this uncertainty and confusion, and, to that end, vested and contingent remainders were. carefully and explicitly defined. Judge Wood-ruff, in discussing this question, says: “In my opinion, they have defined a vested remainder in terms which do fully avoid much of the uncertainty in which the subject was before involved.” Moore v. Littel, 41 N. T. 60. “The csiates as respects the time of their' enjoyment are divided into estates in possession and into estates in expectancy.” Laws 1890, c. 547, § 25; 5 Kev. St. (Banks & Bro.) p. 3518.</p> <p>The interest of Nelson St. John in this bequest, whatever it may be, is an expectant estate, and, by section 26 of the laws above cited, such estates are divided into future estates and reversions. By section 27, “A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate or on the determination by lapse of time, or otherwise of a precedent estate, created at the same time.” It is plain that St. John’s interest is a future estate, limited to commence in possession ata future time, on the determination by death of the estate of Julia Cronin, and on the contingency that she die without child or children surviving. Section 28: “Where a future estate is dependent on a precedent estate, it may be termed a remainder.” Section 30 holds a remainder vested “where there is a person in being who would have an immediate right to the possession of the property on the determination of all the 'intermediate or precedent estates. It is contingent while 'the person to whom or the event on which it is limited. to take effect remains uncertain.” Nelson St. John is tile person in being who would have an immediate right to the possession of the property on the determination of all the intermediate or precedent estates. That is, if Julia Cronin were to die at this moment, Nelson St. John, this bankrupt, is the person in being who» would have the immediate right to the possession of this property. Judge Woodruff, in Moore v. Littel, above cited, after commenting upon the definitions of vested remainder, continues: “It is now true that if there be a person in being of whom it can be positively averred that, if the estate for life were now to cease, he would have an immediate right of possession, he has a vested remainder, and notwithstanding subsequent events may defeat it, the operation of the statute itself is to make them subsequent conditions.” Again he says: “But here suppose that the one so»le condition, to wit. the determination of the precedent estate, is all that is necessary to entitle a person in esse to take. It is not denied that such person has a vested remainder. Why, then, if tlio precedent estate can only be determined by the death of the life tenant, and by that death the heirship is alike also determined, is not the statute definition in all respects satisfied? It makes the precise ease described, and I deny the right to interpolate qualifications drawn from the refined reasoning of cases or text-books prior to the statute to limit the operation by its plain terms.” Further on, he says: “Without enlarging further, the statute, rejecting technical expressions and phrases heretofore employed, meant, by ‘person,’ just what it expresses, and no more. ‘When there is a person in being,’ means when you can point to a human being, man, woman or child; ‘and who would have an immediate right to the possession of the lands upon the ceasing of a precedent interest,’ means that if you can point to a man, woman, or child who, if the life estate should now cease, would, eo instante et ipso facto», have an immediate right of possession, then the remainder is vested, and by necessary consequence all contingencies which may operate to defeat the right of possession are to operate, and only to operate, as conditions subsequent.” In support of this view, he quotes later Chancellor Walworth in Lawrence v. Bayard, 7 Paige, 75, who says, among other things: “It is the present capacity of the individual to take the remainder in possession, if the particular estate should immediately determine, which vests the remainder in interest, and not the absolute certainty that such remainder will ever in fact become vested in possession in him.” Also, Meade v. Mitchell, 17 N. Y. 210. I quote extensively from the opinion of Judge Wood-ruff, because this is the case establishing the construction of this section of the statute, and has been repeatedly cited and concurred in by the courts of this state. See Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811; Levy v. Levy, 79 Hun, 290, 29 N. Y. Supp. 384: Mullarky v. Sullivan, 68 Hun, 156, 17 N. Y. Supp. 715; Nelson v. Bussell, 135 N. Y. 137, 31 N. E. 1008. This construction seems to me to be a fair and reasonable one. And on the strength of it and the other cases above cited, X have reached the conclusion that the interest of Nelson A. St. John in his father’s bequest is a vested remainder, and it nee essai-üy follows that as such it is alienable, and becomes a part of the bankruptcy estate, the title to which is vested in the trustee.</p> <p>But what if we take the view of the. bankrupt, that it is a contingent remainder? Let us again refer to the statutes of this state. If a contingent remainder, then it is a future expectant estate, under Laws 1896, c. 547, §§ 25-27; but a future expectant estate is “descendible, devisable and alienable in the same manner as an estate in possession.” Id. § 49; 5 Bev. St. (.Banks & Bro.) p. 3552. If this be true, and I can see no reason why such a construction is not sound, taken upon the bankrupt’s own contention that his interest is a contingent remainder, it is alienable, and as such becomes a part of his estate in bankruptcy. Judge Woodruff, in Moore v. Littel, above referred to, in considering this phase of the question, determines that the interest, if a contingent remainder, is alienable, and this view, while not concurred in by the entire court, is sustained by a majority, and is cited as the leading case 'in this state upon that point. See Ham v. Van Orden, 84 N. X. 269; Griffin v. Shepard, 124 N. X. 74, 26 N. E. 339. The bankrupt has cited numerous cases holding that the bequest is a contingency, with futurity annexed. It seems to me, after a careful examination of these cases, that the conclusions arrived at therein are based upon what Judge Woodruff termed “qualifications drawn from refined reasoning,” and to which he “denies the right to limit the operation of the plain terms of the statute.” I have arrived at these conclusions after no little study, and not without considerable doubt as to the correctness of my reasoning. However, I am of the opinion that the interest of Nelson A. St. John is alienable, and that it is a part of his estate, no matter how undesirable an asset it may be, and that as such the trustee should take possession of it, and sell it for the benefit of the creditors. Let an order be made, directing the trustee to take possession of and sell, upon due notice to creditors and all parties in interest herein, all the interest of Nelson A. St. John, this bankrupt, under and by virtue of the bequest to him made under the last sentence of the third clause of the will of Vincent St. John, deceased.</p>

<p>Internal Revenue — Stamp Duties — Saloon Bonds.</p> <p>A bond executed to a state or municipality under the provisions or & statute or ordinance as a condition precedent to the issuance of a saloon license is for the individual benefit of tlie applicant, and not an instrumentality for the exercise of the functions of state or municipal government, and must he stamped, under the war revenue act of 1898.</p>

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

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

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

<p>Patents — Suit for Infringement — Cross-Examination of Expert Witness.</p> <p>Where the direct examination of an export witness introduced by a complaint in a suit for infringement in making his prima facie proofs is confined to its proper limits, covering only a description of the patent, an explanation of the obscurities it may present to a mind not skilled in the art, and a definition of its technical terms, supplemented by a presentation of the infringing device, and an explanation of whatever features of it are covered by the claims, the defendant cannot, in cross-examination, open up the state of the art relied upon in defense; but when the witness, in his direct testimony, has referred to the state of the art, it is the defendant’s right to cross-examine upon the whole subject.</p>

In this case a, libel in personam was filed by Julia Roymann, in her own behalf and as next friend of her minor children, Thomas and Hike Roymann, alleging that on December 12, 1898, Jens Peter Roymann, husband and father of libelants, lost his life by negligence of respondents, owners of the British steamship Netherfield, and claiming $10,000 damages.

<p>Shipping — Landing Scow on Rocky Beach — Charterer’s Risk.</p> <p>A charterer of a scow, which at his instance made a landing at an unusual place, with which the master was unacquainted, must be held to have assumed the risk of such landing, and is liable to the owner for an injury received from striking upon rocks near the shore without the fault of the master.</p>

<p>In Admiralty.</p> <p>Convers & Karlin, for libelant United States Shipping Co. of Dresden.</p>

<p>1. Jurisdiction of Federal Courts — Federal Question — Bights of Tribal Indians.</p> <p>An action by a tribal Indian, living on a reservation, to recover damages for bis arrest by defendants for violation oí a suite statute, on the ground that such statute was not applicable to the plaintiff, involves a construction of the laws and treaties of the United States, and is of federal cognizance.1</p> <p>2, Abatement — Laws Governing — Action by Tribal Indian.</p> <p>The fact that tribal Indians residing on a reservation within a state under charge of Indian agents are not subject to the laws of the slate as to their property rights does not prevent such Indians from maintaining actions for the protection of their rights either of person or property, in the courts of the state or in federal courts therein, where such courts have jurisdiction by reason of the questions involved; and where such an action has been brought, and the court, lias acquired jurisdiction over (he parties, the effect of the death of the plaintiff upon the action is determined by the state statutes.</p> <p>8. Indians — Power of State Court to Appoint Administrator.</p> <p>On the death of a tribal Indian residing upon a reservation, his property does not become subject to the laws of distribution of tiie state in which the reservation is situated, hut descends in accordance with the custom of his tribe; and hence the courts of the state have no jurisdiction to appoint an administrator for his estate, there being no property within iis jurisdiction to be administered.</p> <p>4 Abatement and Revival — Iowa Statute — Action by Tribal Indian.</p> <p>By the statute of Iowa (Code, §§ 3145-3115), all causes of actions, survive notwithstanding the death of: the person entitled thereto, and it is provided that on the death of such person an action “may be brought, or the court, on motion, may allow the. action to be continued, by or against the legal representatives or successors in interest of the deceased.” Tinder the decisions of the supreme court of fhe state, actions for personal torts must be brought or continued in thp name of the administrator of the deceased. A tribal Indian, residing-upon a reservation within the state, brought suit in a federal court to recover damages for his wrongful arrest by defendants for violation of a state statute, which plaintiff alleged was not applicable to him because of his status as a tribal Indian, and pending the action plaintiff died. Held, that the purpose of tlie statute being to-remove an obstruction to the enforcement of rights existing at common law, by preserving the right of action therefor for the benefit of the successors in interest of the deceased, and there being no court with jurisdiction to appoint an administrator, mere matters of form must yield to substantive rights, and the court would permit the substitution as plaintiffs of the successors in interest of the decedent under the customs oí: the tribe.</p>

<p>In Equity. On motion to transfer cause, to Laredo division.</p>

<p>Federal Courts — Constitutional Powers — Statute Imposing Administrative Duties.</p> <p>Act Juno 22, 1874, § 6, par. 1 (1 Supp. Rev. St. [2d Ed.] p. 33), which requires the court or judge to certify the value of the services of an informer in regard to frauds upon the customs revenue, which have been the subject of a judicial proceeding, for the information of the secretary of the treasury, seeks to impose upon the court duties which are administrative, and not judicial, and is unconstitutional.</p>

<p>Equity Pleading — Amendment of Answer.</p> <p>Amendments cannot be allowed to an answer after the time for taking testimony by the complainant has expired, the purpose of which is to make certain a construction of the original answer contended for by defendant, but disputed by complainant. Such amendment is either unnecessary, or it makes a change in the issues not permissible by the defendant at that stage of the case.</p>

<p>Federal Courts — Enjoining Suit in State Court— Priority of Jurisdiction.</p> <p>In a suit in equity in a federal court, brought, among other things, to recover possession of certain real estate, and to cancel a deed of trust executed by prior owners thereon for fraud, the grantors and grantees in such deed were made defendants. The grantees answered, under oath, that long before the commencement of the suit they had sold and transferred the deed of trust and the notes secured thereby to a bank named, and disclaimed any interest in the property. After replications had been filed, the testimony taken, and the cause set down for hearing, the bank which owned the deed of trust commenced a suit for its foreclosure in a State court,. and, in accordance with the practice, procured the issuance of a writ of sequestration, under which the sheriff took possession of the property. Held, that the federal court had not acquired such priority of jurisdiction as authorized it, in view of Rev. St. § 720, which prohibits the granting of any injunction to stay proceedings in any court of a state, to enjoin the prosecution of the foreclosure suit in the state court, upon the filing of an amended bill by the complainant, in which for the first time the bank was made a party defendant.</p>

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

<p>1. Insurance — Rescission op Contract.</p> <p>A provision of an insurance policy giving either party the right to cancel the same on 30 days’ notice to the other does not prevent the parties from rescinding the contract by mutual consent at any time without such notice.</p> <p>9. Same — Construction of Correspondence.</p> <p>An insured firm holding an open policy wrote the insurer returning a bill for premiums earned, and asking a reduction in the same, stating that, unless the rate were reduced, 'they “could not go on,” as their business would not stand such a rate. The insurer answered, again sending the bill, stating that it could not make the reduction, and asking that, if the insured decided not to continue using the policy, it be returned. The insured replied, inclosing the policy and a check for the amount of the bill, saying: “Wo inclose check and policy, which we suppose will conclude the whole matter. If we are mistaken, please return the cheek.” The check was retained and cashed. Sold, that the effect of such correspondence was to rescind the contract of insurance by mutual consent.</p> <p>3. Trial — Province op Court and Jury — Construction of Written Evidence.</p> <p>Where the determination of a case depends upon the construction of written correspondence, the genuineness of which is conceded, in connection with facts which are undisputed, and the oral evidence is such that different inferences cannot be drawn from it, it is the duty of the court on request to direct the verdict.</p>

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

The record in this case discloses the following facts, in the light of which it is to be determined: On June 17, 1896, the Evans-Snider-Buel Company, the principal plaintiff in error, held two deeds of trust in the nature of mortgages, one dated April 23, 1S96, and the other May 19, 1896, covering about 6,775 head of cattle, which deeds of trust had been executed by John R. Blocker, who was at the time a resident and citizen of Bexar county, state of Texas.

<p>Action at Law. Tried by the court, a jury having been waived by written stipulation.</p>

Iu Error to the District Court of the United States for the Eastern District of Arkansas.

<p>1. Appeal — Review—Instructions.</p> <p>The charge of a trial court upon a particular issue cannot he reviewed where no exception was taken thereto, nor to the refusal of a special instruction on the subject, ‘or where the special instruction was erroneous because of other matters embodied therein which justified its refusal as ■ a whole.</p> <p>2. Sales — Entirety of Contract — Renunciation by Purchaser.</p> <p>A contract for the sale and purchase of 2,000 bicycles at specified prices, monthly shipments to be made as should he specified by the purchaser, is an entire contract; and .the failure of the purchaser to pay for deliveries made, within the time stipulated, is not a renunciation of the contract which justifies the seller in treating it as abandoned, and absolves him from his obligation to make further deliveries thereunder, in the absence of a provision therefor in the contract, unless there is a refusal by the purchaser to pay, in such terms as to evince a purpose on his part to 'renounce the contract.</p> <p>3. Same — Action by Purchaser for Nondelivery — Pleading.</p> <p>’ Under the provisions of the Ohio Code, requiring a libera! construction of pleadings, a counterclaim by a purchaser for the recovery of damages because of the alleged failure of the seller to deliver goods under a contract is sufficient, after judgment, to sustain a recovery of such damages, although it does not allege that the purchaser was ready and willing to receive and pay for the goods, where, under the contract, he had 10 days after delivery in which to settle for the goods either by cash or note.</p>

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

At Law. Demurrer to complaint overruled. Action at law to recover damages for the death of the plaintiff’s adult unmarried soil, which occurred in the state of Idaho, while he was working for Hie defendant as a locomotive fireman. In her complaint tlie plaintiff alleges that she is a widow, and the sole heir of her son; that she was dependent upon him for support; and that his death was caused by negligence on the part of the defendant.

<p>1. New Trial — Disqualification of Juror — Waiver of Objection.</p> <p>A new trial will not be granted because of the disqualification of a juror who was not challenged or examined as to his qualification, although tiie failure to examine was dee to a mistake of fact not induced b.v the juror or the adverse party.</p> <p>2. Same — Misconduct or Bias of Jurors — Sufficiency of Proof.</p> <p>Proof of misconduct on the part of jurors during a trial, or of statements made by jurors showing their bias or prejudice, alleged as grounds for a new trial, must be sufficient to overcome the denials of such allegations bjr the jurors affected, and to sustain the burden of proof which rests upon the party making them.</p> <p>3. Same — Evidence—Testimony of Jurors.</p> <p>On a motion for a new trial on the ground that jurors were prejudiced by newspaper articles published during the course of the trial, the testimony of a juror is admissible on the quesiion whether or not he read any such articles, but not as to whether, or to what extent, he was influenced thereby.</p> <p>4. Same — Prejudice of Jurors — Newspaper Publications.</p> <p>Where a trial lasted a greater part of two months, during which a leading newspaper of the ciiy in which it was held, and where nearly all of the jurors resided, continued to publish articles apparently intended to influence 1he determination of the case, and calculated strongly io prejudice public sentiment against one of the parties, and to present the oilier in a most favorable light, some of which articles were admittedly read by some of the jurors, such facts afford ground for a new trial on behalf of the party against whom the articles were directed, without regard to the question by whom such anieles were instiga ted.</p> <p>5. Same — Waiver of Objection.</p> <p>A parly is not precluded from assigning the prejudice of jurors by newspaper articles published during the trial of a canse as a ground for new trial, because he failed to have the publishers cited into court, for contempt, where the power of the court to punish for contempt 05> account of sncli publications was doubtful, nor because he did not ask a continuance on the ground of the publications.</p>

<p>1. Bankruptcy — Objections to Discharge — Permitting Amendment.</p> <p>The bankruptcy act contemplates a speedy discharge of the bankrupt, and it is the duty of creditors who desire to object to advise themselves of the requirements of the statute, and bring themselves strictly within its terms. When they have long delayed a hearing on the application for discharge by reason of their insufficient objections^ it rests largely within the sound discretion of the court whether or not amended specifications shall be permitted; and especially it will require that such amended specifications, to be allowed, shall conform strictly to the statutory requirements.</p> <p>2. Same — Sufficiency of Specifications.</p> <p>Creditors will not be permitted to file amended specifications of objection to the discharge of a bankrupt, after their first specifications have been held insufficient, on the ground that the bankrupt has committed an offense punishable by imprisonment under Bankr. Act 1898, § 29b, by concealing property from his trustee, where such specifications do not allege that such acts were “knowingly and fraudulently” done, or specifically describe the property charged to have been omitted from his schedules, when such description, if the charge is well founded, could have been ascertained by reasonable effort.</p>

<p>In Bankruptcy. On certificate of referee concerning rejection of claim of William Rarer.</p>

<p>In Bankruptcy. On certificate of referee concerning cirder to sell the bankrupt’s real estate. ¡</p>

<p>1. Bankbuftcy — Appeal—Findings of Fact.</p> <p>Under Bankr. Act 1898, a district court is not required to make findings of fact for the purposes of an appeal from its decision to the circuit court of appeals.</p> <p>3. Same — Right to Dischakge — Fbaud of Agent.</p> <p>A fraudulent concealment of assets by the husband of a bankrupt, as manager of her business, without her privity or knowledge, does not constitute ground for refusing her a discharge, nor, it seems, does the husband’s failure to keep proper books of account, showing the true condition of her business.</p>

<p>In Bankruptcy. Rule to revoke discharge of bankrupt.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Discharge—Evidence to Support Objections.</p> <p>To sustain objections to the discharge of a bankrupt based upon a transfer of property in payment of an indebtedness alleged to have been fictitious, which left the bankrupt with an equitable interest in the property or its proceeds, which he failed to schedule, the fictitious nature of the indebtedness must be affirmatively shown, and it is not sufficient that the bankrupt’s examination tends indirectly to support the claim.</p>

<p>This was an information against a pearl necklace and other jewelry, to obtain forfeiture thereof. The alleged grounds of forfeiture were; (1) That said articles were smuggled into the United States in violation of section 3082 of the Revised Statutes; (2) that they were imported without having been declared to the collector, in violation of said section 3082; (3) that they were not declared to the collector, contrary to section 2802; (4) that they were unladen and' delivered without a permit, in violation of sections 2872 and 2874.' The goods were claimed by Mrs. Phyllis E. Dodge, who, in her answer, traversed the causes of forfeiture, admitted her neglect to declare the articles, hut denied that such neglect was illegal; alleged that she believed they were not dutiable; that they were in use by her on her journey, and were not intended for sale; that they were not concealed, but were shown to the customs officers upon inquiry. Claim-ant asked that certain articles be adjudged free of duty, and deliv-' ered to her, and that the balance of the jewelry be surrendered to her upon, payment of the proper duties.</p> <p>At the opening of the case, the district attorney announced that the government would introduce no evidence under the first count. He then called customs officers, whose testimony tended to show that claimant had failed to include the jewelry in question among the articles named in her declaration; that she carried the jewelry with her in a satchel; that upon landing she was approached by an officer, to whom she handed the satchel for examination, and who found the articles within it; that claimant told the officer she had taken with her from the United States everything in the satchel; that the jewels were subsequently seized, and two of her trunks detained; that the trunks were subsequently released.</p> <p>Claimant’s counsel then moved to dismiss the information, or that the court direct a verdict in favor of claimant.</p>

<p>Case Stated. Action to recover internal revenue taxes alleged to have been illegally exacted.</p>

<p>Action to Recover Internal Revenue Taxes Raid. On demurrer to declaration.</p>

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

Tliis is an appeal from an order refusing in part an application made by the appellant for a preliminary injunction restraining the appellee from infringing a trade-mark belonging to the appellant, and from certain other practices which were alleged to be unfair competition in trade. Tiie motion was beard on the bill and answer and affidavits introduced by the respective parties.

<p>In Equity. Suit for infringement of patent. On final hearing.</p> <p>The patent in controversy, No. 453,290, was granted June 2, 1891, to McMichael and Wildman, of Norristown, Pa., for an improvement in the horizontal cam-disk of circular rib knitting machines, whereby the cams may be readily exposed or dismantled for examination, cleaning and removal of broken needles. The specification says: “Heretofore the cam-disks in machines of this class have been made of complete disks fitted upon the central shaft or support, and to obtain access to the needle-grooves, which may become clogged owing to the breakages in the needles, it has always been necessary to dismantle the entire upper part of the machine, and after removing the shafts separate the portions constituting the dial and cam-disks. By oia improvements the dismantling of the machine is entirely overcome- and that portion holding the needles remains in its normal position, while the cam portions are readily removed for repairs or cleaning without in any wise disturbing the remaining portions of the machine. In carrying out our invention we make the portions holding the cams divisible, so as to be bolted to or removed from ,a suitable hub carried upon the central shaft. The cam-disk in praeticé is preferably split across its diameter, and may be removed in two or more i sections.” The specification states further that in practice difficulty is- experienced from broken needles clogging the small throat of the earn portion and wedging in such a manner as to stop the proper operation of the machine. When those accidents occur it is only necessary to take off the semi-annular piece which covers the locality of the difficulty. In tills way the needles can be exposed without 'disturbing them, the broken needles an'd other obstacles removed and the machine thoroughly cleaned and repaired. The drawings show the cam-disk divided into two parts, but the patentees do not limit themselves to this line of division. Tlie disk may be divided into any number of parts and still be within the claims of the patent. The claims involved are the second and fifth. They are as follows: “(2) In a knitting machine, the combination of the needle-dial with the cam-disk divided into parts transversely to ihe plane of the needle-dial, a support for the needle-dial, and a detachable connection between the several parts of the cam-disks and the support for the needle-dial, whereby the cam-disk may be detached in sections without disturbing the support for the needle-dial.” “(5) In a knitting machine, the combination of the needle-dial and its support with the adjustable cam, K, and, a cam-segment supporting said adjustable cam and detachably secured to the support for. the needle-head and removable from said support without disturbing its position in the machine.” The defenses are lack of patentability, noninfringement and that the patentees are not joint inventors.</p>

<p>In Admiralty. Action for breach of shipping contract.</p>

<p>1. Shipping — Construction of Charter — Employment of Stevedore.</p> <p>A clause in the form of charter party, used for the charter of a steamship, giving the charterer the right to provide a stevedore at the steamer’s expense, was stricken out, and one inserted as follows: “Stevedore employed by vessel to be approved by charterers.” Hold, that such provision did not bind the charterer to approve a stevedore employed by the owners, but required the one selected by the owners to be subject to the charterers’ approval.</p> <p>2. Contract — Construction—Person Entitled to Enforce.</p> <p>Where a charter provided that the stevedore employed by the vessel should be subject to approval by the charterer, the refusal of the latter to approve a, stevedore, without giving any reason therefor, does not give the stevedore so disapproved any right of action for damages against him, whatever may be the rights of the other party to the contract.</p>

In Admiralty. Suit for collision, heard and determined in the district.court by Waddill, District Judge. Libelant appeals from a decree dismissing its libel rendered by the district court for the Eastern district of Virginia. The questions are chiefly of fact-, and the ease comes before this court on the same pleadings and proofs as were before the district court.

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

<p>In Admiralty. On motion to quash citation on cross libel in suit by the United States for collision.</p>

<p>Seamen — Breach of Contract of Employment — Measure of Damages.</p> <p>It is the duty of seamen wrongfully discharged to use reasonable diligence to obtain similar employment elsewhere, and, where they could have obtained such employment, they can only recover, in a suit for breach of the contract, the difference between what they could- thereby have earned and what they would have received under the contract.</p>

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

<p>In Equity. Suit to quiet title. On pleas to jurisdiction,</p>

<p>In Equity. On exceptions to master’s report.</p>

<p>1. Railroads — Foreclosure of Mortgage — Preferred Clams.</p> <p>A decree confirming the sale of railroad property in a foreclosure suit to a reorganization committee of bondholders provided that the purchaser should pay such further portions of the bid in cash as should be directed by the court from time to time to meet such claims as should be adjudged superior to the mortgage. The purchaser received all residue of funds belonging to the mortgagor. The reorganization agreement provided for payment of all defaulted interest on the bonds participating by bonds of the new company. Petitioner held coupons from bonds deposited under the reorganization agreement, which matured prior to the company’s default, and the money to pay them had been properly deposited, but, because they were not presented, had been used in payment of subsequent coupons; the effect being to swell the residue, which went to the new company. Held, tiiat such coupons did not represent “defaulted” interest, within the terms of the reorganization agreement, but that petitioner had acquired a right to the money deposited superior to the mortgage, and was entitled, under the decree, to payment from the new company.</p> <p>2. Same — Interest.</p> <p>Where coupons from railroad bonds, not bearing interest by their terms, were not presented for payment at the designated place, where the money was deposited to meet them, and the residue of the fund subsequently passed to a purchaser of the property at foreclosure sale, the holder is not entitled to recover interest from such purchaser.</p>

<p>Sales — Construction of Contract to Furnish Boilers — Modification of Specifications.</p> <p>Where a bidder for tbe furnishing of boilers required by a contract for the construction of a building, instead of bidding upon the specifications contained in such contract, submitted a proposition and specifications of its own, which were, at its instance, attached to the contract subsequently made between such bidder and the general contractor as modifying the specifications of the original contract, a guaranty contained in such proposition as to evaporating capacity and the tests to be met mast be construed as superseding the provisions of the original specifications relating to the same subjects, rather than as having been voluntarily offered by the bidder as additional thereto. N</p>

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

<p>In Bankruptcy.</p> <p>The following is the opinion of D. L. Grayson, Referee:</p> <p>In ihis cause the petitioner, C. Tollett, filed his original petition, scheduling neither realty, growing crops, nor beef c-altle. At the first meeting of creditors the petitioner was examined by counsel for creditors in interest,, and the following facts were developed: That on the 3d day of January, 1900, the petitioner and his wife conveyed his homestead to one C. P. Taylor, naming in the deed a consideration of §500. His petition in bankruptcy was filed under date of February 20th, following. On or about 1st of June, 1900, said Taylor reconveyed the real estate in question back to the petitioner, and by leave of the court granted at the creditors’ meeting- aforesaid this has been scheduled as an asset by amended petition duly filed. The petitioner admitted on his examination that no consideration In fact emanated from said Taylor to him, but that this transaction was voluntary; and it is evident from the proof that it was made purely for the purpose of hindering, delaying, and defrauding creditors. It is now insisted by the bankrupt’s counsel that he, as well as his wife, is entitled to a homestead in the aforesaid real estate, and that the same should be so adjudged as prayed in the amended petition. It appears from the proof that the wife of the petitioner joined in the conveyance to Taylor in the manner prescribed by the state statutes, and the legal effect of such joinder was to transfer the homestead right under the well-settled rulings of the supreme court: of Tennessee, regardless of any express waiver in the deed. This much is admitted, but it is contended by petitioner’s counsel that the homestead revested' in both petitioner and his wife upon, the recon t veyance to them by Taylor. This would undoubtedly be true if the conveyance in question had been originally free from taint of fraud; but, it being admitted that the conveyance to Taylor was without consideration, and the proof showing the existence of debts at such time, and the wife having joined in that deed, and no reservation of sufficient assets to pay said existing indebtedness having been shown, said transfer was fraudulent in law, if not. in fact, upon the part of the bankrupt, and under the authority of Cowan v. Johnson, reported in 2 Tenn. Cas. 41, I must hold that the reconveyance of said property back to the petitioner does not revest the homestead right. The case in question holds “that the wife who joins with her husband in a-deed fraudulently conveying his home and only property thereby parts with her right to homestead therein, and the fact that the land was afterwards fraudulently conveyed back to her will not entitle her to homestead.” This is the syllabus of the decision. In the opinion Judge Lea says: “When she executed and acknowledged the deed, although fraudulently done by her husband, she thereby parted with the right to homestead, and the fact that the land was after-wards fraudulently conveyed back to her will not entitle her to homestead.” This case is cited and approved by the court in the subsequent cases of Gibbs v. Patten, 2 Lea, 183; Ruohs v. Hooke, 3 Lea, 305; Nichol v. Davidson Co., 8 Lea, 395-398, — this latter ease denying the suggestion that the cases in 2 and 3 Lea had weakened the force of this opinion, but, on the contrary, showing that they were to be distinguished from Cowan v. Johnson, in that in the 2 and 3 Lea cases the wife had only accepted the benefit of a fraudulent transfer, and had not joined in one. The argument by petitioner’s counsel that the wife should not at least be deprived of homestead in this land because the proof of her husband shows that he did not explain to her the purport of the conveyance is sufficiently met by the facts in the decision quoted, and need not be further noticed, except to say that, the wife not being before the court, her right to homestead cannot be adjudicated. It is therefore held that petitioner is not entitled to a homestead in the realty scheduled in the amended petition; and the trustee, at such time as due advertisement can be made and sale had, will sell the entire fee in this property.</p> <p>With respect to the question of growing crops it appears from the proof that they were planted before the filing of the petition, but that since its filing the bankrupt has conserved them by services rendered looking to their preservation from the elements, etc. Having already held that the petitioner is not entitled to homestead, this disposed of the right of the petitioner to said crops as exempt property, because such right is legally predicated alone upon the theory that they be raised upon the homestead, and are exempt for such reason. The trustee will therefore be directed to take possession of such crops, and harvest the same; but they will, of course, be subject to such lawful liens as are. recognized by the state law for supplies furnished, etc. Said liens must, however, be presented for adjudication and allowance in this court, the court having possession of the res in which the lien is claimed. The bankrupt will also be entitled to reasonable compensation, to be fixed by the court for services rendered in caring for said crops since the date of filing his petition.</p> <p>With respect to the seven head of cattle of the value of $20 each, which the proof shows were transferred by the bankrupt to his counsel as security for services in this bankruptcy proceeding, it is sufficient to say that by virtue of the provisions of section 60d of the act the court can fix the compensation of counsel, but the excess must be recovered by the trustee for the benefit of the estate. I have no power to order counsel to surrender this property to the trustee, but will fix their fee for services in this matter, unless the same can be agreed on with the trustee,' in which event the court will adopt such agreed figure, and any surplus remaining must, in the event counsel decline to surrender possession of said cattle to the trustee, be recovered by him by suit instituted for such purpose. It is intimated in the report of the trustee that the sum of $50 is all that is claimed by said counsel. If this be true, 'the fcourt will be pleased to hold that such sum is reasonable, and will so adjudge upon consent of parties. The application of the petitioner for the exemption of one of said cattle as exempt to him in addition to the one cow heretofore set apart- to him by the trustee is declined: The petitioner, having given a preference by said transfer, is not now entitled to said exemption out of property winch may be recovered by the trustee, and he has, furthermore, waived his right to claim the same as exempt by not including the same in his claim for exemptions heretofore filed. See In re Friedrich, 40 C. O. A. 378, 100 Fed. 284. The claim of Elijah Tollett, Sr., to a first lien trp011 the seven head of cattle because he furnished the sum of $50 to the bankrupt for their purchase, will be denied, because there is no resulting trust in personal property.</p> <p>This disposed of all questions before the court in this matter, so far as I am at present advised. ;</p>

<p>.1.. Bankruptcy — Provable Claims — Rent Accruing after Adjudication.</p> <p>Rent .accruing .under a lease after tbe lessee bas been adjudicated a bankrupt, is not provable against his estate under Bankr. Act 1898, either las a fixed liability .or an unliquidated claim.</p> <p>2. Same — Effect on Lease — Resumption of Possession by Lessor.</p> <p>Where a lease of a store building authorized a re-entry by the lessor for nonpayment of rent, but contained' no provision making the lessor agent for the lessee in respect to the premises, and after the bankruptcy of the lessee and the removal of his goods by his trustee the lessor at once relet, the 'building temporarily, and- subsequently for a term of years, his action amounted to an eviction of the bankrupt, which .terminated the lease.</p>

Petition of the Berliner Gramophone Company and the United States Gramophone Company to withdraw answer and testimony introduced by it on behalf of the defendant Seaman,- under contract to defend.

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

At Law. On motion to remand to state court. This is an action by the plaintiff, as administrator, against the defendants to recover damages for the death of Frank Coffman by the wrongful acts and omissions of tbe defendants. The action was begun in the circuit court of Delaware county, Ind., and removed into this court.

<p>1. Foreign Corporations — Actions Against — Service of Process.</p> <p>A federal court in one state does not acquire jurisdiction over a defendant which is a corporation of another state, and which does not carry on business in the state of the snit, nor have any authorized representative therein, by the service of process on one who is merely shown to have been a director of such corporation two years previously.</p> <p>2. Jurisdiction of Federal Courts — Nonresident Defendants — Looal Actions.</p> <p>A suit in a federal court in New Jersey by stockholders of a Maine corporation against such corporation and others to set aside a transfer of patents and property by the corporation to a co-defendant, and to compel a restoration of such property, where the property is not within the district of New Jersey, and the relief sought is general, and not in rem, is not one to enforce a claim to or lien upon property in the district, within the meaning of section 8 of Act March 3, 1875, so as to authorize service on such corporation thereunder as a nonresident defendant.</p>

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

In Equity. Suit against the state debt board of Arkansas to compel the issuance of state funding bonds to complainant. The act of the legislature of the state of Arkansas approved May 8, 1899, entitled, “An act to fund the debt of Arkansas and for other purposes,” contains the following provisions: “Seelion 1.

<p>Equity — Suit for Accounting — Grounds of Jurisdiction.</p> <p>A bill alleged that complainant and defendants were appointed by tbe bondholders of an insolvent railroad company a committee to have charge of proceedings for the foreclosure of the mortgage and. the reorganization of the company; that it was agreed that the members of the committee should be fully compensated for their services and expenses, and a fund was raised and placed in its hands to pay the expenses of the proceedings and such compensation; that it w.as further agreed that the committee itself should compensate its members by justly apportioning between them the available surplus of such fund; that defendants, who constituted a majority of the committee, had apportioned a sum to complainant which was less than full compensation, and less than the amount of the fund remaining in their hands warranted, but that they refused to make an accounting as to such fund, or to give him any information on the subject. Held, that such bill stated a good cause of action for an accounting.</p>

The State Trust Company is the trustee of the first mortgage on all the 'property of the New Orleans & Western Railroad Company. This mortgage was executed on July 15, 1895, and was duly recorded in the parishes in which the mortgaged property lies. On January 10, 1898, in a suit brought by the State Trust Company, a receiver was appointed of the railroad company’s ; property by the United States circuit court for the Eastern district of Louisiana.

<p>At Law. Action for breach of contract. On motion by defendants for judgment notwithstanding the verdict.</p>

! In Error to the Circuit Court of the United States for the Northern , District of Illinois. Action by Marquis H. McCann against the Chicago, Milwaukee & ’ St. Paul Eailway 'Company. The case was taken from the jury, and a verdict directed for defendant, and plaintiff brings error.

<p>I. Citizenship — Treaties — Constitutional Law — Disability op Aliens— Right to Inherit — Naturalization—Residents op Territory. _ '</p> <p>_ Residents and inhabitants of the territory of Nebraska at the time of. its admission as a state to the Union, who had previous thereto declared, before a court of record their intention to become citizens of the United States, were by the enabling act created naturalized citizens of thé United' States. '</p> <p>3. Treaties — Eb’fect.</p> <p>By article 6 of the constitution of the United States, all treaties with-foreign countries are the supreme law of the land, binding upon the several states. ,</p> <p>3. Same — Aliens—Inheriting Real Estate.</p> <p>It is within the power of the United States by treaty to remove the' disability of aliens to inherit real estate within the several states. i</p> <p>4. Same. 1</p> <p>By the terms of the treaty between the United States and If ranee en-¡ tered into in 1858, citizens and subjects of France are entitled to acquire-by inheritance and otherwise real estate in all respects the same as á. citizen of the United States in those states by whose laws an alien is-permitted to hold real estate.</p> <p>5. Same — Constitutional Law. . : :</p> <p>As the constitution and statutes of Nebraska permit resident aliens to, hold and acquire real estate in the same manner as citizens, held, that' the provisions of the statute prohibiting nonresident aliens from acquir-' ing real estate by inheritance or otherwise is inoperative so far as it re-1 lates to citizens or subjects of France.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Banks — Trust Companies — Power to Issue Certificates of Deposit.</p> <p>In the absence of statutory provisions on tlie subject, a trust company authorized to receive money on deposit has lawful authority to issue certificates of deposit therefor in the usual form.</p> <p>2. Federal Courts Following State Decisions — Questions of Commercial Law.</p> <p>The courts of the United States are not controlled by the' decisions of the state courts on questions of general commercial law, and a federal court will follow the decisions of the supreme court as to the negotiability of an instrument, notwithstanding a contrary holding by the courts of the state where the transaction took place.1</p> <p>3. Certificates of Deposit — Negotiability.</p> <p>A certificate of deposit in the ordinary form, payable to the order o-f the depositor, is a negotiable instrument possessing the qualities of a negotiable promissory note.</p>

In Bankruptcy. On petition by trustee to reconsider allowance of the claim of a creditor.

<p>Bankruftcy — Refekee’s Decision — Review—Petition.</p> <p>Where a creditor, whose claim has been disallowed by tbe referee, fails to lile a petition for review with the referee, as required by General Order No. 27 (18 Sup. Ct. viii.), the application for review will he dismissed.1</p>

<p>1. Bankruptcy — Discharge—Grounds of Objection.</p> <p>Omissions from or inaccuracies in a bankrupt’s schedule, not made knowingly and fraudulently, are not grounds for refusing him a discharge.</p> <p>2. Same — False Oath.</p> <p>A bankrupt cannot be fairly charged with having knowingly and fraudulently sworn falsely in relation to the time of his knowledge of insolvency, so as to debar him from the right to a discharge, because his testimony shows him to have entertained the expectation of being able to continue his business longer than was justified by the facts.</p>

In Bankruptcy. The following is the opinion of Referee GEIGER: “This matter has come on for hearing before the referee upon the petition of the trustee and certain creditors for the re-examination and disallowance of the claims of Clarence E. Edmondson, E. G. Edmondson, Fred Kaufman, and Charles W. Flick, which claims were filed with the referee, and heretofore allowed, for the purpose of voting for trustee.

<p>Appeals by the Importers from Decisions of the Board of General Appraisers.</p>

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

At Law- Action by patentee to recover royalties from licensee. Tried by the court.

Appeal froDi the Circuit Court of the United States for the Eastern District of Louisiana.

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts. See 96 Fed. 2i8.</p>

<p>Patents — Suit pos Infbingement — - Pbeliminaby Injunction.</p> <p>Where the alleged infringement of a patent consisted in the use, within territory covered by an exclusive license to complainant, of a dredge boat built under a license from the patentee for use in another territory, upon which repairs had been made, but which did not appear to have been altered sufficiently to change its identity, it is not sufficiently clear that the question involved is one o-f infringement, and not merely a violation of contract rights, of which a federal court would not have jurisdiction, to warrant the granting of a preliminary injunction.</p>

On preliminary objection to plaintiff’s motion for injunction pendente lite and application to vacate temporary stay, and on motion for preliminary injunction.

On motion by defendant for an order docketing the cause as one removed from the circuit court of Fond du Lac county, and to allow the filing nunc pro tunc of corrected petition for removal, and bond in lieu of the petition, and bond filed in the state court, and on further motion by the plaintiff in the district court to remand the cause as one improperly removed to that court.

<p>Application for an order instructing the clerk to issue a duplicate subpoena to the marshal of the Northern district of New York against the defendant Chormann, under section 740, Rev. St. U. S.</p>

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

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

<p>On Motion to Modify Mandate. For former opinion, see 104 Fed. 163.</p>

<p>Jurisdiction of Federal Courts — Sufficiency of Allegation of Citizenship.</p> <p>An allegation in a complaint that plaintiff is a citizen of the United. States, and an actual resident of a state named, is a sufficient allegation of bis citizenship in such state for jurisdictional purposes.</p>

<p>Federal Courts — Plea to Jurisdiction — Defendant to Bill in Intervention.</p> <p>Where a creditors’ bill in a federal court against a corporation showed the requisite facts to give the court jurisdiction, a creditor who is subsequently brought in as a defendant to an intervening bill for the foreclosure of a mortgage on the property of the corporation, which is in the hands of the receiver, cannot attack the. jurisdiction by a plea alleging that the original suit was brought by collusion between complainant and thé corporation in procuring the assignment of the claim to complainant in order to give the court jurisdiction, when it is not shown that the intervener was a party to such collusion.</p>

<p>Banks — Stockholder’s Liability — Transfer of Stock — Equity—Adequate Remedy at Law.</p> <p>In an action in equity to cancel a transfer of stock as fraudulently made by defendant to avoid a stockholder’s liability, and for a decree against defendant for an assessment on.the stock, a demurrer to the bill because plaintiff had an adequate remedy at law by ignoring the transfer and suing defendant as actual owner will be overruled, since the plaintiff is entitled to the relief prayed for, which could not be had at law, though such relief be only a technical advantage to plaintiff.</p>

In Equity. -Suit for specific performance of a contract. This is a bill for specific performance of the following contract: “This memorandum of agreement, made and entered into this day by and between ■J. N. Wooley, party of the first part, and Charles M. Newton, party of the second part, witnesseth:.

In Equity. On demurrer to the bill the following order was entered: The demurrers of the defendants to the bill of the complainant herein having come up for argument before me, and an order having been entered, dated September 28, 1900, directing the argument of said demurrers to be heard before some other judge, and granting leave to file an amended bill upon certain terms therein stated: Now, upon motion of the defendants, it is ordered that the said order dated September…

<p>Records of 'Federal Courts — Judgment Indices — Right of Examination.</p> <p>A corporation engaged in the business of insuring titles is entitled to permission to inspect the judgment indices kept by a clerk of a circuit court of the United States, in relation to transactions which are at the time depending-,; under proper regulations and restrictions.</p> <p>J. B. McPherson, District Judge, dissenting.</p>

<p>Judgments — Equitable Lien.</p> <p>Where a contractor had erected a building for which plaintiffs had furnished certain labor and materials, a promise by the contractor that ho would file a lion for the entire sum, and from the proceeds of any judgment thereon would pay plaintiff his claim, did not create an equitable lien in plaintiff’s favor on a judgment on the mechanic’s lien.</p>

<p>Appeal — RevEusAL—Mandate—Yoluntahy Nonsuit.</p> <p>A mandate which, after ordering a reversal, contains a direction “to grant a new trial, to sustain the plea of * * * limitations, * * * and to enter judgment for the defendant,” does not make a new trial compulsory, but merely allows plaintiff one if he desires it, the further directions as to the plea and entry of judgment to govern only in case he elects to take a new trial; so that after the trial court, on reception .of the mandate, has entered an order setting aside the judgment theretofore entered and granting a new trial, plaintiff may take a voluntary nonsuit.</p>

<p>¡On Objections to Taxation of Costs.</p>

<p>1. Pleading — Affidavit of Defense — Sufficiency.</p> <p>Act Pa. July 15, 1897, entitles a plaintiff to judgment on any portion of a claim as to which. the affidavit of defense may be insufficient. Plaintiff sued for breach of a contract under which defendant agreed 'to receive plaintiff’s deliveries of gravel at the average rate of l-,000; cubic/ yards a day, in that he failed to take the full amount. Held that, where the affidavit of defense failed to negative any allegations of the com-' plaint, but only contended for a different measure of damages from that’ claimed, plaintiff was entitled to judgment on the pleadings for the': amount recoverable raider the proper measure of damages.</p> <p>2. Breach of Contract — Measure of Damages. ></p> <p>In an action for breach of a contract under which defendant agreed to take plaintiff’s deliveries of gravel at the average rate of 1,000 cubic yards a 'day, the measure of damages for defendant’s failure to take the full amount is the costs and expense suffered by plaintiff by reason of/ such failure, with interest from the date when the contract terminated.</p>

The plaintiff in error, Hosea E. Tullís, employed as a rear brakeman upon a freight train of the Lake Erie & Western Railroad Company, going eastward on the night of February 10, 1895, was injured by the negligent management of a locomotive which was following the train for the purpose of pushing it over a steep grade up which it had stalled or was just about to start. The pusher ran against the caboose of the train with such violence as to throw it from the track.

<p>t. Release-”Joint Tort Feasors.</p> <p>The legal effect and operation of a release declaring that a person injured by the joint negligence of two railroad companies has received full settlement from one of them for all his injuries resulting from the accident in question is not affected by an expression therein excepting the other company.</p> <p>2. Evidence — Contradicting Written Instrument-Release.</p> <p>While one of two joint tort feasors can avail himself of a release of the other, and is therefore not a stranger to the release to that extent, he is a stranger to the instrument in the sense in which the term is used in the rule that in a suit between a party to a contract and a stranger thereto neither is concluded by the writing, but cither may contradict it by parol evidence.</p>

<p>1. Contracts —r Persons Bound — Contemporaneous Contracts Construed Together.</p> <p>Where an agreement between defendant and the receiver of an insolvent corporation, by which defendant undertook to .purchase the property of the corporation, contemplated and required defendant to comply with a second agreement, executed contemporaneously • between bondholders, by which they agreed to deposit their bonds with a trustee, to be delivered to defendant for his use in paying for the property, the two contracts are to be construed together, and defendant, by becoming a party to one, became bound by the other, and may be sued by the trustee for its breach in failing to pay for the bonds received thereunder in accordance with its terms.</p> <p>2. Same — Action for Breach — Defenses.</p> <p>In an action for breach of contract in failing to return or pay for certain bonds delivered by plaintiff to defendant to be used by him in paying for property of an insolvent. corporation, an answer alleging the delivery by defendant to plaintiff of a certificate of deposit for the bonds does not state a defense, it not being alleged that the certificate was accepted in lieu of the bonds themselves.</p>

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

• In Error, to' the Circuit Court of the United States for the Western District of Michigan. • This is an action in tort to recover damages alleged to have been sustained by reason of an alleged unlawful obstruction maintained in the Ontonagon river, a navigable stream, wholly within the state of Michigan, which flows into Lake Superior.

<p>1. Fraud — Action for Deceit — Rkrrksentations Inducing Contract.</p> <p>Defendant’s agent secured a contract from plaintiff to supply to defendant in the future a large quantity of rubber waste by representing that a competing company was “entirely out of business,” and that defendant would thereafter be practically without competition in the market, which would tend to reduce the price of the article. The competing company, which held leases on the works of five constituent companies, did in fact, dissolve, but its constituent companies each thereafter operated its own works, and entered the market as a purchaser of waste; and the com- petition thereby created caused an advance in the price to such an extent that plaintiff was compelled to pay more than he received for the rubber to fill his contract. Held, that the question whether the representation made by defendant’s agent was fraudulent depended on whether he meant plaintiff to understand that the five factories then operated by the competing company had gone out of business, which was a question of fact to be determined by the jury.</p> <p>2. Same — Waiver—Performance of Contract after Knowledge of Fraud.</p> <p>Where a party who has contracted to sell and deliver a commodity in the future at a fixed price learns while the contract is still to a large extent executory that representations of fact made by the other party, which induced him to enter into the contract, were false, he has his election to repudiate the contract at once, and sue for the loss he has already incurred, or to go on with it; and, if he continues performance and completes his deliveries thereunder, he waives the deceit and affirms the contract, and cannot thereafter maintain an action for the deceit, even to the extent of recovering damages to the amount of the loss incurred before his knowledge that the contract was not obligatory.</p> <p>8. Same.</p> <p>It is not essential, to entitle a party to disaffirm a contract on the ground that it was induced by fraudulent representations, that the party making such representations knew them to be false, but they are equally fraudulent if made without knowledge of their truth, with the intention that they should be acted upon; and hence the party deceived is put to his election whether he will go on with the contract on discovering, while it is still executory, that the representations were in fact false.</p>

<p>1. Bankruptcy — Surrender, ov Assets — Contempt Proceedings.</p> <p>Bankr. Act 1898 (30 Siat. 544) does not authorize the trustee to compel, by process for contempt, the surrender to the trustee of assets properly belonging to the estate, by one who obtained possession of them before; the filing of the petition; such property being only obtainable by ordinary legal remedies applicable between any two claimants of property.</p> <p>2. Same — United States District _Court — Jurisdiction.</p> <p>Bankr. Act. 1898 (30 Stat. 552) § 23b, provides that suits by the trustee shall only be brought in those courts in which the bankrupt might have brought them but for the bankruptcy proceedings, except by consent of the defendant. Held, that one who obtained property as agent of a bank-.: rnpt before the filing of a petition against him, the trustee, the bankrupt. and the agent all being residents of the same state, was not subject,, without his consent, to process from the United States district court to compel the surrender of the property to the trustee, since the bankrupt could not hare sued in that court to recover the property if the bankruptcy proceedings had not been instituted. .</p>

<p>In Bankruptcy.</p> <p>The following is the certificate of the referee and report on exceptions:</p> <p>To the Honorable the Judge of the District Court for the Eastern District of Pennsylvania:</p> <p>The referee respectfully reports that the following question involving a claim upon the fund in the hands of the trustee in bankruptcy was presented to him for his decision by the trustee, and William S. Eaton, Jr., Esq., a creditor, the claimant:</p> <p>The bankrupts were contractors for the erection of steam-heating apparatus in premises Nos. 1120 to 1142 Market street, Philadelphia, a property belonging to the Stephen Girard estate. There was due to the bankrupts from the trustees of said estate the amount of $2,854.02 for materials furnished and work performed by them on this building. This fund was paid to the trustee in bankruptcy by the trustees of the Stephen Girard estate, with the reservation on behalf of the trustees of the Girard estate of any right in said fund which might ho vested in the claimant, the said Win. S. Eaton, Jr., by reason of a certain letter of request drawn by the bankrupts, and presented to the trustees of the Girard estate, requesting them to pay to the Boston Blower Co. the sum of $281.88; the said sum being the amount of a judgment obtained by them against the bankrupts in the court of common pleas of Philadelphia county in November, 1898. All the interest of the blower company and all debts whatever due them were duly assigned to the said Wm. S. Eaton, Jr., by a duly-executed deed of assignment.</p> <p>The letter of request is as follows:</p> <p>“Philadelphia, February 1, 1899.</p> <p>“To the Trustees of the Stephen Girard Estate, Philadelphia, Pa. — Dear Sirs: Please pay to the ord*r of Frank P. Prichard, Esq., attorney for the Boston Blower Company, the sum of $281.88 out of any balance due us remaining in your hands.</p> <p>“Tours, truly, Hanna & Kirk.</p> <p>“J. Y. Kirk.”</p> <p>The deed of assignment by which Wm. S. Eaton, Jr., became assignee of all moneys duo to the Boston Blower Company was executed on the 25th day of' March, 1899. The adjudication in bankruptcy was made on the 2l!d day of February, 1900, so that the claimant was fully vested with all the rights of the Boston Blower Company in their claim under the letter of request more than four months before the adjudication in bankruptcy.</p> <p>It appears clear to the referee that the trustee in bankruptcy became vested only with the titi,e held by the bankrupts, taking the property subject to all existing liens, charges, claims, and equitable rights (Coll. Bankr. p. 375), and that the claimant, Wm. S. Eaton, Jr., became vested by the deed of assignment from the Boston Blower Company with whatever interest in the amount of $281.88 was transferred to the blower company by virtue of the letter cited.</p> <p>It was contended on behalf of the claimant that thé letter cited operated as an assignment of the amount expressed in the letter. On behalf of the trustee it was urged that the letter was not expressed in such terms as to come within the requirements of a partial assignment, and, even if it should be regarded as sufficiently specific to operate as a partial assignment of a. .fund in the hands of an ordinary holder, it was inoperative against the trustees of the Stephen Girard estate on the grotind that the administration of the Girard estate was a branch of the city government, and that a partial assignment of a fund under the control of a municipal corporation is’ inoperative.</p> <p>A partial assignment is not allowed at common law without the ratification of the debtor, because he might be submitted to multitudinous suits, and be subjected to embarrassments and responsibilities not contemplated in his original contract (2 Am. & Eng. Enc. Law [2d Ed.] p. 1068; 1 Beach, Mod. Eq. Jur. p. 378); but this rule of law has long been abandoned in courts of equity, for in proceedings in equity the interests of all parties can be determined in a single suit, and the debtor can bring the entire fund into court for distribution.</p> <p>It only remains, then, to consider; First, whether the letter cited fulfills the conditions requisite to effect an equitable assignment; and, second, whether the holder of the fund, the trustees of the Stephen Girard estate, nre exempt from the rule as to the validity of partial assignments, on the ground that they are a branch of the municipal government.</p> <p>The conditions required to constitute an effective assignment are that the fund shall be designated, and the order to pay unconditional. The language of this letter is sufficiently specific on these points, under the decisions of ■the supreme court of the United States and the supreme court of this state. The letter addressed to the trustees of the Girard estate contains an unconditional order to pay the party named therein the sum of $281.88, and the .expression in the letter that follows, “out of any balance due us remaining in your hands,” defines the fund as being the money due the drawer of the .order by the parties on whom it is drawn.</p> <p>Jn the case of Caldwell v. Hartupee, 70 Pa. St. 75, the following order was held to operate as a partial assignment:</p> <p>“Mr. W. A. Caldwell — Dear Sir: Please pay to Mr. John Cuthbert $1,500 out of the proceeds of the last note coming to us from the steamer Quickstep, with interest from date of such note. Hartupee & Company.</p> <p>“Pittsburg, October 10th, 1868.”</p> <p>The facts in this case were as follows: Henry T. Dexter, the owner of the steamboat Quickstep, which was largely in debt, made a trust mortgage of the boat to defendant ¿nd George W. Coffman, as trustees, to secure $15,--000 for the benefit of the creditors of the boat, named in a schedule annexed to the mortgage among whom were the plaintiffs.</p> <p>The plaintiffs drew upon the defendant in favor of John Cuthbert.' The defendant declined to accept or pay the order on the ground that Hartupee & Co. were indebted to the firm of which he was a member. Cuthbert indorsed the draft to Morrow, for whose use -the suit was brought. This order was held to be an equitable assignment of so much of the money as Hartupee & Co. were entitled to receive from the trustee under the deed of trust .out of the proceeds of the last note which they had full power to make.</p> <p>This case has been followed in Kuple v. Bindley, 91 Pa. St. 296, and Knuchel’s Adm’r v. Schneider, 158 Pa. St. 412, 27 Atl. 1088.</p> <p>When the order in this case is compared with the case in hand, the force ■and effect of the language of the two papers are identical. In the language, ■“out of the proceeds of the last note coming to us from the steamer Quickstep,” there is no more specific identification of the fund than the language ’.of the letter in the case in hand, “out of any baldince due us remaining in your hands.”</p> <p>There are a line of decisions that a check without other evidence to. support It is not operative as an equitable assignment. The reason of 'this decisión appears to be'that a check drawn generally is not considered to be drawn on a particular fund. If the order in the case in hand had been a simple order to pay, the decisions as to checks would not be in point; but the order specifying the fund as “any balance due us remaining in your hands” is not drawn in the form of a cheek, but defines the fund from which payment is to be made.</p> <p>In the case of Bank v. Yardley, 1(55 U. S. 635, 17 Sup. Ot. 439, 41 L. Ed. 855, it is held that a cheek drawn in the ordinary 1'orin does not constitute an equitable assignment; but, it being established by evidence that the intention of the parties to the transaction was that the check drawn generally was to be paid out of a particular fund, suck a check, as between the parties, is to be treated ns an order for the payment out of the. specific designated fund. This case was a bill filed in the circuit court of the United States to subject moneys in the hands of the receiver of the Keystone National Bank to the satisfaction of an alleged equitable charge or lien thereon, arising from a chock for $25.000 given by the Keystone National Bank to the Fourth Street National Bank, under the following circumstances:</p> <p>The Keystone National Bank, desiring a loan of this amount from the Fourth Street National Bank, exhibited to the officials of the latter bank a memorandum showing a balance to their credit in the Tradesmen’s National Bank of New York for $27,000, and asked the Fourth Street National Bank to accept a draft of the Keystone National Bank against the Tradesmen’s National Bank. Relying upon these representations, the check was accepted, and the loan made by the Fourth Street National Bank. 'The Tradesmen’s Bank made settlement with the receiver of the Keystone Bank, paying to him all the balance due the Keystone National Bank.</p> <p>/ In finding upon this claim. White, J., says: “Whilst an equitable .assignment or lien will not arise against a deposit account solely by reason of a check drawn against the same, yet the authorities establish that if, in the transaction connected with the delivery of the check, it was the understanding and agreement of the parties that an advance about to be made should be a charge on and be satisfied out of a specific fund, a court of equity will lend ils aid to carry such agreement into effect as against the drawer of the check, mere volunteers and parties charged with notice.”</p> <p>Numerous additional authorities to this effect could be cited, but sufficient has been said to maintain the position that an order for the present and unconditional payment of money, specifying the fund from which it is to be paid, will operate as an equitable partial assignment.</p> <p>It has been strongly contended, however, that, even if the language of the letter was operative as a partial assignment against an ordinary holder of the fund, in the case in hand it was not effective, as the trustees of the Girard estate were a branch of the city government, and it has been decided that a municipal corporation is not bound to recognize a partial assignment of a claim against it. This was decided in Geist’s Appeal, 104 Pa. St. 351, where it is held that an assignment of a portion of a claim against the city of Pitts-burg could not be enforced.</p> <p>It would be difficult to determine whether the trustees of the Girard estate could avail themselves of the privileges and immunities of a city department that administers the city money collected from the taxpayers for municipal purposes, and where the officials would be very much embarrassed by the enforcement of partial assignments. The municipal corporation is trustee of the will of Stephen Girard for the purposes of carrying out the trusts declared in his will, and it is difficult to see any reason why they should be exempt from the duties of other trustees.</p> <p>The reason for the exception made in favor of municipal corporations is that they would be embarrassed and harassed by partial assignments dividing funds into small payments. It is not evident that this reason would apply to the trustees of the Girard estate, but it is not necessary to decide this question, because they are not the holders of the fund; they are not defending the action; and, even if they were at one time privileged holders of the fund, the reasoning that applies to the decisions exempting municipal corporations is not applicable, the fund having passed into the hands of the trustee in bankruptcy.</p> <p>■Report of Referee upon Exceptions.</p> <p>To the Honorable the Judge of the District Court for the Eastern District of Pennsjdvania:</p> <p>The referee has fully considered the arguments of counsel on the exceptions, and cannot find any reason to change the views already expressed. The latter deposited with the trustees of the Girard estate appears to him, under the authorities, to fully comply with all the requirements of a valid, partial, equitable assignment, in that it is an unconditional order to pay, and also contains a designation of the fund sufficiently specific to comply with the authorities already cited.</p> <p>As to the question raised that the letter of request was not binding upon the trustees of the Girard estate, a branch of the municipal government, and that, therefore, the letter could not operate as an assignment of the fund within four months of the bankruptcy, the referee is of the opinion that, if an equitable assignment is in proper form, it is, as against a privileged holder of the fund, only voidable; not void.’ If such holder should see fit to comply with the assignment, he would be safe in doing so. The law still prevails. The privilege only extends to the enforcement of the law, and, the fund having been transferred by the trustees of the Girard estate to the trustee in bankruptcy, with the reservation of the rights of the Boston Blower Company by the- letter mentioned, no question can be raised as to the enforcement of the law, and the letter of request operates as an assignment, as it was executed in good faith more than one year before the adjudication in bankruptcy. Therefore the exceptions are dismissed.</p>

■ In Bankruptcy. Petition to review decision of referee allowing the claims of E. O. Hooper and A. F. Gray to be proved against the estate of the firm of J. A. Hooper & Co., bankrupts.

<p>In Bankruptcy. On objections to discharge.</p>

<p>Bankruptcy — Involuntary Proceedings — Infancy of Debtor.</p> <p>Creditors of an infant, in Illinois, whose debts the infant is entitled to repudiate at majority, cannot have him adjudged an involuntary bankrupt, since they are not creditors in the sense of the bankruptcy act of 1898.</p>

<p>1. Bankruptcy — Trustee—Rtght to; Contest Claims</p> <p>tinder Bankr. Act 1898, a trustee of a bankrupt is authorized, as representative of all the creditors, to contest the allowance of any claim filed against the estate.</p> <p>3. Same — Effect on Lease — Rent to Accrue.</p> <p>tinder a provision of a lease that “should the lessee at any time fail to pay the rent punctually at maturity, as stipulated, the rent for Ihe whole uncxpirnd term of this lease shall * * * at once become due and exigible,” the filing of a petition in bankruptcy by tlie lessee at a time when he was not in default in the payment of rent does not mature notes given for rent to accrue in the future, or the lessor’s right to enforce a statutory lien therefor.</p> <p>8. Same — Provable Debts — Rent to Accrue.</p> <p>On tlie bankruptcy of a lessee, notes given by him for installments of rent to accrue in tlie future under a lease for a building occupied by him l'or business purposes do not constitute debts provable under Bankr. Act 1898, § 63, subd. 1, where the lease contains provisions for its termination in case the building should become untenantable, authorizing re-entry by the lessor for condition broken, and prohibiting its transfer by the lessee, or the use of the premises for any other purpose than that specified, without the written consent of the lessor.</p>

7j. T. Woodruff, a citizen of Dooly county, Ga., was adjudged a bankrupt in Hie district court for the Southern district of Georgia, on his own petition, on January 6, 1899. On the 28th day of that month (). O. Oliceves was appointed trustee'.

In Bankruptcy. On application of trustee for authority to employ as counsel one of the attorneys representing certain creditors.

<p>United States — Status of Annexed Territory — Customs Duties.</p> <p>The provision of tbe joint resolution for tbe annexation of tbe Ha- • waiian Islands of' July 7, 1898, wbicli retained in force tlie. same customs duties between such islands and ports of the United States as formerly, is constitutional.</p>

<p>1. Internal Revenue — Stamp Taxes — Mode of Collection.</p> <p>A stamp duty imposed by an internal revenue law is collected by the government through the sale of the required stamps, and, in the absence of an express provision therefor, a collector is not authorized to collect such duty in any other manner.</p> <p>2. Same.</p> <p>Where a person fails to make and deliver bills or memoranda of agreements made by him to sell stocks, and affix stamps thereto, as required by section 25 of the war revenue act of 1898, a collector has no authority to demand and collect from him the value of the stamps which would have been required had he complied with the law, the only remedy provided for a violation of the law being by prosecution, and fine or imprisonment; and a payment so enforced by a collector, under threat of suit, is illegally exacted, and may be recovered back.</p>

<p>Proceedings in habeas corpus for the discharge of Oberlin M. Carter, a military prisoner of the United States, on petition of I. Stanton Carter.</p>

<p>• In Equity. Soil for infringement of trade-mark. On motion to continue restraining order.</p>

<p>Trade-Marks — Suit for Infringement — Basis of Liability.</p> <p>Plaintiff was the .proprietor of “Hough on Rats,” a powder sold in boxes, and used for the killing of vermin, and had registered as a trade-mark the words “Rough on” as applied to vermin exterminators and medicinal preparations. Held, that the sale by defendant of a liquid in bottles under the name of “Rough on Skeeters” did not render it liable as an infringer, the article being wholly unlike any preparation sold by plaintiff, and one which could not be mistaken therefor, so as to create unfair competition.</p>

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

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

<p>Patents — Suits for Infringement — Preliminary Injunction.</p> <p>Where infringement appears, under the construction placed on the claims of complainant’s patent in a prior suit in the same court, and no i(ew questions affecting the validity of the patent are raised, complainant is entitled to a preliminary injunction.</p>

<p>Patents — Patentable Novblty — Catheter.</p> <p>The Lee patent, No. 390,177, for an improved catheter, held valid on demurrer.</p>

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

<p>Patents — Designs—ÍTovelty.</p> <p>Tbe Feeler design patent, No. 29,350, for a design for skirt binding, is void for lack of patentable novelty in tbe design shown.</p>

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

<p>In Equity. Suit for infringement of patent. See 81 Fed. 182.</p>

<p>Patents — Suit in Equity for Infringement — Duplicity of Plea.</p> <p>A plea to a bill for infringement of a patent,' wbicb sets out a prior process parent to tbe.same patentee, and avers that the product of the process shown is the same product claimed in the second patent, and that the two patents are, therefore, for an indivisible invention, and the second'is void, and also pleads that the first patent was an abandonment to ■ the public of the product of the second, presents two separate defenses, and is bad for duplicity.</p>

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

The steamer New Camelia, worth the sum of $35,000, a merchant vessel of the United States, licensed and enrolled in the coasting trade, proceeded on a voyage on Sunday, June 18, 1899, from Milneburg on Lake Pontchartrain. to other points and places on and across said lake and on the Tchofuneta river. On this occasion she carried upwards of 150 passengers. About midway of said lake she broke her shaft, and was thereby disabled.

<p>In Admiralty. Action on policy of marine insurance.</p>

/ The present action is for the recovery of damages resulting from a collision which occurred in the port of New Orleans on the morning of Ifebruary 6, 1899. The facts as alleged in the libel are as follows: “Shortly after seven, o’clock on Iliat morning the tug Maud Wilmot left the coal landing of libel-ants on the Algiers or right hank of the Mississippi river with a tow consisting of a coal boat laden with 7,702 barrels of Pittsburg coal and a coal palace.

At Law. On motion to remand. The plaintiff, Charles S. MeKown, on the 18th day of June, 1900, instituted a suit at law in the circuit court of the Greenwood district of Sebastian county, Ark., against the Kansas & Texas Goal Company for the sum of $2,000.

<p>1. Appeal — Specifications of Error.</p> <p>The requirement of rule 11 of the circuit court of appeals (31 C. O. A. cxlvi., 90 Fed. cxlvi.) that a specification of error upon the admission or rejection of evidence “shall quote the full substance of the evidence admitted or rejected” lias reference to the portion of the evidence concerning which it is sought to make some question, and a specification of error in the admission of a document which merely identifies such document as an assignment “transferring the leasehold” does not comply with the rule, where there was no dispute as to the effect of the assignment as a transfer of the leasehold, hut the point in controversy was in relation to certain provisions supposed to create a personal liability on the part of the assignor for the payment of rentals thereafter accruing.</p> <p>2. Federal Courts — Foul owing State Practice — Form of Action.</p> <p>Where the local practice in a stale permits a lessor to sue an assignee of the lessee at law for rent, upon a contract of assumption in the assignment, such practice will be followed by the federal courts in the state.1</p> <p>3. Same — Jurisdiction—Suit ry Assignee.</p> <p>An action by a lessor against one to whom the lessee has transferred the lease, for the recovery of rent, is not one in which the plaintiff sues in the right of an assignee, hut is brought in his own right as an original party to the contract and on a cause of action which never existed in favor of the lessee, and the citizenship of the latter cannot affect the jurisdiction of a federal court in the case.</p>

This action was brought by George H. Stahl against the Reliable Incubator & Brooder Company. A motion made by the defendant in error to strike from the record the bill of exceptions has been sustained (42 C. C. A. 522, 102 Fed. 590), but it is still insisted by the plaintiff in error that upon the face of the declaration the court below was without jurisdiction of the c^use.

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

The appeal and cross appeal in these cases bring under consideration the respective rights of the parties to a certificate of sale of real estate by a master in chancery under a decree of foreclosure of a mortgage or trust deed.

<p>1. Suit to Quiet Title — Title ok Plaintiff.</p> <p>Wiiere the plaintiff has only been in possession of real estate for a - short time, and acquired title thereto by conveyance during the suit, or after an adverse judgment was obtained in ejectment against his grantor by the present defendant, and nothing is suggested in plaintiff’s bill to quiet title which was not available as a defense in the ejectment suit, a demurrer will be sustained thereto.</p> <p>3. Samé — Adequate Remedy at Law.</p> <p>Act March 8, 1889 (P. L. 11), as amended by Act May 25, 1893 (P. L. 131), authorizing the person in possession of real estate to obtain a rule on an adverse claimant to commence ejectment within six months, and empowering the court entering the rule to enter final judgment if such action is not commenced, provides a remedy at law which prevents the plaintiffs in possession from maintaining a suit to quiet title.</p>

1 Appeal from the Circuit Court of the United States for the Northern District of Florida. % This is a suit in equity involving the right, title, and possession of a one-fourth undivided interest in 262% acres of land in the city of Pensacola, Escambia county, Fla. The bill is filed by Florida McGuire against the Pensacola City Company and 47 other defendants.

<p>'Equity — Pleading—Amendment—Discretionary Ruling.</p> <p>Under equity rule 35, providing that if a demurrer be allowed the court may, in its discretion, on motion of the plaintiff, allow him to amend his bill on such terms as it deems reasonable, the question of amendment is largely in the discretion of the court; and where demurrers were sustained to plaintiff’s entire bill on May 31, 1899, and motion for leave to amend was not filed until September 7, 1899, and the bill, with amendmgnts embodied, was not lodged with the clerk until January 6, 1900, there was no abuse of discretion in refusing leave to amend, though the amendment might have been a proper one, and the refusal was on the ground that it was improper, and also that it was precluded by delay.</p>

<p>1, Res Judtoata.</p> <p>Judgment against complainant in a suit to enjoin sale of property on an assessment is a bar to a second suit for the same purpose, the validity of the assessment being attacked in both suits, though in the second suit it is attacked on a new ground.</p> <p>2. Taxation — Validity of Assessment — Laches.</p> <p>After an assessment has been levied for seven years, it is too late to question its validity by suit to enjoin a threatened sale thereunder, though .the sale is under a new process; the process being made necessary by the restraint, at suit of complainant, of the sale attempted more than seven years before, and being- but a mere continuation of what was then begun.</p>

<p>1 Reference — Effect of Findings.</p> <p>Where by consent of parties a case is referred to a master to hear and decide the issues and report his findings both of fact and of law, such findings are to be taken as presumptively correct, and will not be disturbed unless for manifest error in the consideration given to the evidence, or in the application of the law.</p> <p>2. Contracts — Construction—Evidence to Explain Meaning of Language Used.</p> <p>Where the language of a written contract is capable of two interpretations, and doubt exists as to its true meaning, evidence of previous negotiations and of surrounding facts and circumstances relating to the subject-matter of the contract is admissible in order to reach an interpretation in accordance with the understanding of the parties at the. time, the contract was made.</p> <p>8. Same — Construction—Rentals or Royalties erom Telephones.</p> <p>Plaintiffs and defendant, each of whom owned patents relating to telephones, which were in litigation between them, made a settlement, and entered into a contract by which defendant was granted an exclusive-, license to use all the patents of plaintiffs, and agreed to pay them upon ,- all telephones used in the United States under license from it, “express or implied, unless expressly excepted, a royalty or bonus of twenty per cent, of all rentals or royalties actually received or rated as paid, in accordance with the provisions of this contract, frojn license's or leases for speaking-telephones, exclusive of eall bells, batteries, wires, and other appliances, or services furnished or performed.” The contract stated the then recognized “standard” annual rentals or royalties for each telephone, which was subject to commissions, and provided the commissions winch might be paid therefrom, ami the minimum rentals which might be charged, without a special agreement of the parties. It required defendant to keep accounts of the number of telephones manufactured, licensed, and put out for use, and of the rentals received and commissions paid, and provided that, where exchanges were conducted by defendant or other corporations in which it was interested, the usual rentals on the telephones used should be “rated as paid,” within the meaning of the contract. Subsequently defendant adopted the plan of selling a perpetual license to use its instruments in a certain territory t.o a local company, taking in payment stock of the company; and in such cases the company paid the usual rentals on the telephones used, less the usual commissions. Bdd, that the term “rentals or royalties,” used in the contract, did not include the general profits which defendant might make from the monopoly given by its patents, either by conducting exchanges itself, or from licenses granted to olhers therefor, but was intended to cover only rentals from instruments, as specified and defined in the contraci, which by the recognized custom were rented, and not sold, and that defendant was not entitled to any portion of the stock received from the sale of such licenses.</p>

<p>Preliminary Injunctions — Restraining Enforcement of Statute.</p> <p>A preliminary Injunction will not be granted to restrain the enforcement of a statute regulating fares on street railroads at suit of a stockholder in such a company, notwithstanding there is a serious doubt of the constitutionality of the act, where it is not shown that either the company or its stockholders will suffer irreparable injury, or what amount of loss they will sustain, by a compliance with the act until final hearing.</p>

<p>1. Carriers — Regulation of Rates — Circumstances and Conditions — Competition.</p> <p>Among the circumstances and conditions to be considered, as well in the case of traffic original ing in foreign ports as in the ease of traffic originating within the limits of the United States, competition that affects rates should be considered, and in deciding whether rates and charges made at a low rate to secure foreign freights, which would otherwise go by other competitive routes, are or are not undue and unjust, the fair interests of the carrier companies, and the welfare of the community, which is to receive and consume the commodities, are to be considered. Case cited: Texas & P. Ry. Co. v. Interstate Commerce Commission, 16 Sup. Ct. 666, 162 U. S. 233, 234, 40 L. Ed. 940.</p> <p>2. Same.</p> <p>That competition is one of the most obvious and effective circumstances that make the conditions under which a long and short haul is performed substantially dissimilar, and as such most have been in the contemplation of congress in the passage of the act to regulate commerce, has been held by many of the circuit courts. Case cited: Interstate Commerce Commission v. Alabama Midland Ry. Co., 18 Sup. Ct. 50, 1G8 U. S. 1G4, 42 L. Ed. 424:</p> <p>3. Same.</p> <p>■ All competition, provided it possesses tbe attribute of producing a substantial and material effect upon traffic and rate making, is proper, under tbe statute, to be taken into consideration. Tbe fact that tbe competition is -wholly between carriers who are subject to tbe act is not material.</p> <p>4. Same — Practice.</p> <p>A carrier defendant is entitled to have its defense considered in tbe first instance, at least, by tbe commission, upon a full consideration of all tbe circumstances and conditions upon-which a legitimate order could be founded. Case cited: Railroad Co. v. Behlmer, 20 Sup. Ct. 209, 175 U. S. 675, 676, 44 L. Ed. 319.</p> <p>5. Same.</p> <p>Where the interstate commerce commission refuses to weigh tbe evidence in regard to competition, merely because tbe competition is wholly between carriers who are subject to tbe act, tbe proper practice in this court is to dismiss tbe petition filed to enforce tbe order of tbe commission, and rem.and the case to tbe commission, without prejudice to tbe right of any party in interest to apply to tbe commission to proceed, upon tbe evidence already introduced before it, or upon such evidence as it may allow to be introduced, to bear and determine tbe matter in controversy in conformity to law. Case cited: Railroad Co. v. Behlmer, 20 Sup'. Ct. 209, 175 U. S. 676, 44 L. Ed. 320.</p> <p>(Syllabus by tbe Court.)</p>

<p>1. Judicial Sale — Rule to Set Aside-Collateral Attack.</p> <p>Where a receiver of a national bank obtains a judgment in the circuit court, and afterwards sells that and other judgments under an order of tlio circuit court, and marks 1lio judgment to the use of the purchaser, who has execution issued thereon, a rule to set aside the sale, which is in form an attack on the decree ordering such sale, cannot: be maintained by the judgment debtor in the action in which the judgment was rendered, since it is a collateral attack on the order of sale.</p> <p>2. Same.</p> <p>Where a receiver of a national hank obtains a judgment, and sells it, and marks it to the use of the purchaser, by order of the circuit court, the judgment debtor, who confessedly owes the money, cannot maintain a rule to set the sale aside, since the order of sale and execution will protect him in paying- the money to the use plaintiff.</p>

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

On October 17, 1893, the defendants in error, who were the plaintiffs below, and the firm of Brown & Bobbins, contracted with the Fair Lumber Company, a corporation, by which the former sold to the latter, and agreed to manufacture for it,-the lumber of certain specified grades contained in and to be manufactured from pine timber upon certain specified lands in the state of Michigan, at prices stated in the contract, namely, $10.50 per 1,000 feet for the lumber; the prices…

<p>1. Seduction of Husband — Damages—Evidence.</p> <p>To show the relations that existed between husband and wife, as bearing on the question of damages in action for seduction of the husband, letters written by him to her before and after he became acquainted with defendant, tending to prove the affectionate feeling entertained by him for her before defendant intervened, and the subsequent alienation of feeling, are admissible.</p> <p>2. Same.</p> <p>For the same purpose, and also to prove the mental suffering of plaintiff, an element of damages, it is competent to show manifestations of remorse by him in interviews with her, and of grief -by her after the intimacy between him and defendant began.</p> <p>8. Same — Evidence of Seduction.</p> <p>Evidence that plaintiff’s husband was in possession of large sums of money while living in defendant’s house, and that they came from defendant, is relevant in an action for seduction of the husband, as bearing upon the question whether he and the defendant were living in the relation of lover and mistress, and whether he was the seducer, or she was enticing him by her favors.</p> <p>4. Same — Bab to Action.</p> <p>It is no bar to an action for seduction of plaintiff’s husband that, after the making of an order for temporary alimony in a proceeding hy her for a divorce, an agreement, with which the proceeding terminated, was made by them in substitution of the order, hy which lie promised to allow her a stated sum per week, and she agreed to accept it.</p> <p>5. Wbit op Ekkoii — Review op Damages.</p> <p>There being no error in the instructions on damages, the question whether the verdict was for excessive damages, and refusal of motion for new trial on that ground, cannot be reviewed on writ of error.</p>

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

<p>1. Trust Combinations — How Determined.</p> <p>Whelher plaintiff is a trust or combination, within the Illinois antitrust act of 1891, so that under its provisions one buying from it is not liable for the price, must be determined in a direct proceeding, and not collaterally in an action by it for the price; the statute bóing silent as to the method to be pursued.</p> <p>2. Federal Courts — Practice.</p> <p>Rev. St. § 914, providing that the practice and mode of proceeding in federal courts shall conform to that in like causes in the courts of the state in which such federal courts are held, does not require a federal court to allow the defense that plaintiff is a trust or combination, within the Illinois anti-trust act of 1891, so that defendant, buying from it, is not liable for the price, to be set up in an action for the price, without a prior determination in a direct proceeding of plaintiff’s status, though such a defense was set up in an action in the state court, without the right to do so being questioned or considered.1</p> <p>3. Pleading — DemdIirek.</p> <p>Demurrer to replication will be carried back to the plea, though a. demurrer to the plea has already been overruled by another .judge of coordinate jurisdiction, where practically the decision of each subsequent s1ep in the litigation depends on a fundamental proposition, in regard to which the court is convinced that the prior ruling was erroneous.</p> <p>4. Estoppel.</p> <p>A city sued on a contract under which plaintiff built for it a bridge is estopped to set up that plaintiff and certain aldermen of defendant formed a conspiracy to prevent competitive bidding when the contract was secured, or that the bidding was on different plans, or that plaintiff committed bribery in securing the contract, where, after appropriation by ordinance for erection of the bridge, there was a suit by taxpayers to enjoin defendant from constructing it, which, after full hearing on the merits, was dismissed, for want of equity, and pending the suit the contract was made, at which time defendant made a request, with which plaintiff complied, that it appear and assist defendant in the defense; and the construction was not proceeded with till after termination of the suit, and defendant had assorted it had established the validity of the contract, and had demanded that plaintiff fulfill the contract, and thereafter defendant instituted proceedings to condemn property for the bridge, which were contested on the ground ihat the contract was invalid, and plaintiff, at defendant’s request, assisted in the proceedings, and judgment was rendered therein sustaining the proceedings, the validity of the contract, and defendant’s right to proceed with the execution thereof.</p>

The evidence shows that on 1he' 10th day of June, 1898, at Muneie, Ind., the plaintiff’s intestate, William V. Doty, a hrakeman in the defendant's service, while coupling cars, received injuries of which he died within a few hours. At the time of his death he was in the twenty-fourth year of his age, and had been in the service of the defendant, as a hrakeman, for about, 18 months.

<p>1. Whit of Error — Pasties—Joint Defend ants~Nonjoinder.</p> <p>Where, in ejectment under a statute authorizing the joinder as defendants of all persons claiming an interest in the land, defendants severally pleaded title in themselves by distinct titles, and plaintiffs had judgment, a writ of error sued out by one of the defendants, in which the record did not show that the other defendant was invited to join and refused, will he dismissed, since separate pleas and defenses founded on separate rights will not make a judgment several which is rendered on a single cause of action.</p> <p>2, Same.</p> <p>The fact that the defendant who did not join in suing out the writ was barred by lapse of time from doing so before the objection was raised is not ground for refusal to dismiss the writ, since the question is one of jurisdiction, and must he tested by the conditions existing when the writ was sued out.</p> <p>S. Same.</p> <p>The fact that a judgment in ejectment in terms adjudged that plaintiffs recover the lands from the defendants severally is insufficient to render it one from which one defendant might sue out a writ of error alone, since, in substance and effect, the judgment is joint in operation.</p> <p>4. Same — Objections—Time fob Taking.</p> <p>The objection that a writ of error from a judgment against two jointly was sued out by only one, without a proper severance, can be1 taken at any time before judgment is rendered thereon.</p> <p>5. Same — Objection—Row Raised.</p> <p>The objection that a writ of error from a judgment against two jointly was sued out by only one, without a proper severance, is one which may he taken by the court on its own motion.</p>

.In.Error to the Circuit Court of the United States for the Eastern* District of Louisiana. On December 7, 1894, Stewart & McDermott made a written contract with the New Orleans Sewerage Company for the construction of certain sewers and-their appurtenances in the city of New Orleans. By this contract the sewerage-company agreed at its own cost and expense to furnish all the material re-, quired in the construction of the sewers and their appurtenances.

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

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

<p>Bankruptcy — Vesting of Title in Trustee.</p> <p>Interest of a bankrupt in land of bis motber, wbo died intestate on tbe same day, but several hours before, bis petition was filed and tbe ad-, judication entered, vests in tbe trustee; Bankr. Act 1898, § 70, cl. “a,” providing that tbe trustee, “on bis appointment and qualification, * * * shall * * be vested by operation of law with tbe title of tbe bankrupt as of the date be was adjudged a bankrupt.”</p>

<p>In Bankruptcy. On motion to stay an action against the bankrupt in the state court.</p>

In Bankruptcy. Petition for revision of an order made by a court of bankruptcy. This is a petition under subdivision “b” of section 24 of the bankrupt act of 1898 for a revision of proceedings in bankruptcy of the district court of the United States for the Southern district of Illinois.

<p>1. Bankruptcy — Preferences—Set-Off.</p> <p>Under Bankr. Act 1898, § 68a, providing that in cases of mutual debts or credits between the estate of a bankrupt and a creditor the account shall be stated between them, and only the balance allowed or paid, cash payments on account, made within four months of the filing of the petition, are not such debts or credits as entitle the creditor to state the account, and hold the bankrupt only for the balance found.</p> <p>2. Same — New Credit.</p> <p>Bankr. Act 1898, § 60c, providing that if a creditor has been preferred, and afterwards in good faith gives the debtor further credit, without security, for property which becomes part of the bankrupt estate, the amount of such new credit, unpaid at the time of the adjudication, may be set off against the amount otherwise recoverable from such creditor, is not restricted to eases where the trustee sues the creditor to recover the amount of the preference, but the creditor may claim the set-off where the trustee merely refuses to allow the claim till the surrender of the preference.</p>

<p>Petition of George S. Nicholas for Adjudication of Involuntary Bankruptcy.</p>

In Bankruptcy. L. & A. Scharffs sold to the bankrupt certain liquors, which, when Wells was adjudged a bankrupt, remained in his stock in unbroken packages, and unpaid for. Wells claimed this liquor as exempt. The trustee set it apart to him as a part of his exemptions.

Appeal by importer from decision of board of general appraisers affirming the action of the collector in assessing duty on certain articles of merchandise known as “drilled pearls.”

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

- This action was brought by the plaintiff in error, Albert Davis, to recover of A. J. Daugherty, colle'ctor of internal revenue for the Fifth collection district of Illinois, sums paid under protest for special taxes as a brewer at Galesburg and Peoria, 111., and for beer stamps, penalties, and interest Trial by jury was waived by written stipulation, and the case submitted for trial to the court, which made a general finding, and gave judgment thereon for the defendant.

This is an appeal from an order entered June 29, 1900, allowing a preliminary injunction upon a bill filed by the appellee, the complainant below, to restrain the defendants therein, the appellants here, from preparing, printing, manufacturing, and from causing to be prepared, printed, and manufactured, any book covers or cover designs which axe copies or imitations of the book covers and cover designs made by the complainant for certain school books published by them; and…

<p>1. 'Patents — Water Heaters.</p> <p>Tlie Buerlde patent, No. 29,584, for a design for a case or shell for water heaters, is not infringed by another design, though both arc elliptical in form, where there is no such sameness of appearance to the eye as to constitute substantial identity.</p> <p>2. Same — Infringement.</p> <p>Wlieie complainant’s water heater is known in the trade and to the public as the “Monarch,” and that name conspicuously appears on the case inclosing the heater, immediately below a lion’s head, and the heater is distinctly marked with the name of the manufacturer, the patent for the case inclosing the heater is not infringed by one known in the trade and to the public as the “Standard,” though of a somewhat similar form, where that name is plainly marked on tlie heater, as is also the name of defendant as manufacturer, and the designs are otherwise distinguishable.</p>

<p>Extents — Suit for Infringement — Recovery of Profits.</p> <p>,, In a suit for infringement of patents relating to windmills, which were tfor improvements only, not indispensable to an operative mill, it cannot ■ be-assumed that the entire profits made by the defendant on windmills ¡sold which contained the infringing devices were due to such devices, but the burden rests upon the complainant to prove by competent and satisfactory evidence what portion of the profits were dne to such improvements, to entitle him to recover.</p>

<p>Removal of Causes — Alienage of Plaintiff — Subsequent Natuhalization —Remand.</p> <p>Under Act 1887, as amended by Act 1888 (25 Stat. 434, § 1), providing that actions brought in the state courts, involving more than $2,000. between citizens of a state and aliens, may be removed into the United States circuit court, a case so removed on account of the alienage of plaintiff will not be remanded to the state court because the plaintiff has subsequently become a naturalized citizen of the United States.</p>

<p>On Demurrer for Want of Jurisdiction.</p>

<p>In Equity. On objection to jurisdiction.</p>

the Northern District of Illinois. The bill is on behalf of appellants, owners of forty-six hundred shares of the capital stock of the appellee — the total issue being one hundred and eighty thousand shares — and all other stockholders of the appellee joining therein. No other stockholders have, however, joined. Its object is to wind up the company, and appoint a receiver.

<p>1. Exchanges — Right of Property in Quotations — Protection by Injunction.</p> <p>There exists in the board of trade of the city of Chicago a right of property in the quotations made upon the transactions of its exchange until the same are made over to the public, and it is within the powers of the board to convey such right by contract to a third person who is entitled to protection in the enjoyment of the. same before publication by injunction against the unauthorized publishing or distributing of sucn quotations by others.</p> <p>8. Parties in Equity — Nonjoinder of Formal Parties — Federal Courts.</p> <p>A federal court will not require the joinder of one who is a proper, but not an indispensable, party, when such joinder would defeat its jurisdiction.</p>

<p>L Railroads — Reorganization—Liability for Claims against Old Company.</p> <p>The holder of an unliquidated claim against a railroad company will be field barred by laches from the right to charge a reorganized company succeeding to the property with liability thereon, on the ground that it issued bonds and stock to stockholders of the old company, where, with ample opportunity, he neglected to assert such claim against the new company until after the transaction had been completed and the bonds and stock delivered.</p> <p>8 Same — Suit to Charge New Company — Parties.</p> <p>A suit cannot be maintained against a reorganized railroad company to charge it with liability for a claim against the old company on the ground that it issued bonds and stock to stockholders of tlie old company without joining such stockholders.</p>

<p>1. Mortgages — Fraud—Confidential Relations.</p> <p>Several of the owners of certain timber and coal lands in common, one of whom was an attorney, agreed to a division of the timber land and* a scheme for the management of the coal lands; but the other owners in common commenced suit against them to set the agreement aside, and a settlement was made, and the timber land was conveyed to two of the objecting owners, who gave a mortgage on the timber lands and on their interest in the coal lands to the other owners to secure the entire purchase money. The attorney at the time of the execution of the mortgage represented all the tenants in a certain litigation over the coal lands, but was not shown to be the attorney of the mortgagors in other respects. The mortgage was personally acknowledged by one of the mortgagors, and the certificate recited that she was informed of the contents thereof. The objection that the coal lands were included in the mortgage was not raised in a contested foreclosure suit. Held not sufficient evidence of the confidential relation of attorney, and the fraudulent insertion of the coal lands in the mortgage, to authorize a recovery of the property by the mortgagor after the foreclosure sale thereof.</p> <p>2. Husband and Wife — Disqualification of Wife-Execution of Mortgage.</p> <p>A married woman- was not incompetent to execute a valid mortgage on her lands in 1857.</p> <p>3. Foreign Will — Failure to Probate — Recovery of Real Estate.</p> <p>Where a foreign will devising real estate is not probated under the laws of the state where the property is situated, an action based thereon cannot be maintained by the devisee to recover such property. .</p> <p>4. Tax Sale — Validity.</p> <p>Where real estate in which an interest is claimed by plaintiff under a foreign will is sold for taxes, and conveyed after the expiration of the period of redemption to defendant, who owns the remaining interest therein, and no fraud is shown, the plaintiff cannot recover her alleged • interest therein, since it was devested- by the tax sale.</p>

<p>Cross Appeals from the Circuit Court of the United States for the District of Kentucky, at Louisville.</p>

' For opinion below, see 98 Fed. 465. The bill in this case sought to restrain the collection of certain additional taxes imposed on shares of stock in the bank by virtue of an order of the state board of equalization for the state of Ohio for the year 1S97.

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>The motion to dismiss this appeal for the lack of necessary parties was argued at the May session of the court in 1899, and since that time has been under advisement. The material facts are these: On August 19, 1898, a decree of foreclosure and sale was entered in the case of the Fidelity Insurance, Trust & Safe-Deposit Company against the Litchfield, Carrollton & Western Railroad Company, the Litchfield, Carrollton & Western Railway Company, and the Mercantile Trust Company of New York, wherein it was ordered that the proceeds of the sale he applied first to the payment of the costs of the cause, including allowances to be made by the court to the parties and their solicitors and counsel and to the receiver, his solicitor and counsel, and the balance first to the payment of all indebtedness of the receiver, including receiver's certificates and all claims allowed priority to the mortgages, and the remainder, if any, to the discharge of the mortgage indebtedness. On November 8th ensuing an order was entered making specific allowances to the parties, to the receiver, and to their respective solicitors and counsel, each by name; and on November 14th an amended decree of foreclosure was entered, hut without change affecting the present inquiry, the order for the distribution of the proceeds of the sale remaining substantially the same as in the first decree. The sale was made on November 20, 1898, and of the proceeds, amounting to $85,000, which on confirmation of the sale had been paid into the registry of the court, the clerk paid the allowances mentioned and other preferred claims to an amount which left a balance of $29,442.93 in the registry. In pursuance of an order of January 31, 1899, the master, on the ensuing February 9th, reported a classification of the debts declared entitled to preference by the decrees of foreclosure. Two days thereafter the appellants, Kidder and Wiggins, as holders of receiver’s certificates to the amount of $24,000, filed an intervening petition, which was referred to the master, who reported thereon to the effect that the certificates issued for money advanced to the receiver should have preference to the mortgages, equally with other debts of the receiver, but that certificates issued for indebtedness incurred before the receivership, while entitled to preference over the mortgages, should he postponed to. the receiver’s indebtedness. Other intervening petitions were filed by the ,T. J. Moss Tie Company, the Frost-Trigg Lumber Company, the Detroit Bridge & Iron Works, and the Jacksonville & St. Louis Railway Company, and on March 14, 1899, an order was made, wherein, after reciting the payments made under previous orders, it was directed that the sum of $29,442.93- remaining in the registry be paid pro rata and without distinction upon the claims reported by the master to be entitled to preference over the mortgage indebtedness. The names of the holders and the respective amounts of their claims, aggregating $105,887.70, were set out in the order, except that to the amount of $14,164.73 the nature of the claims is stated, but the names of the owners not given. On April 3, 1899, the appellants and -the other interveners named above severally prayed an(I were granted “leave to file exceptions to the decree of distribution heretofore entered in this cause on the 14th day of March, A. D. 1899, as of that date, nunc pro tune,” and thereupon the appellants (and each of the other interveners named, separately) fi-ed exceptions to that decree or order; and afterwards on the same day the appellants filed a petition for an appeal from the decree of November 14, 1898, and therewith filed an ass'gnment of errors, the specifications of which' are all directed to provisions o-f that decree. The citation was directed to andf served upon the Fidelity Insurance, Trust & Safe-Deposit Company and Joseph' Dickson, receiver of the Litchfield, Carrollton & Western Railroad Company, and there seems to have been no intention to include other parties. The motion to dismiss was made by the Fidelity Insurance, Trust & Safe-Deposit Company, and, excepting that company and the appellants, there has been no appearance in this court by or for any person, company, or corporation. The ground of the motion to dismiss Is that the other Interveners decreed to b'e entitled to payment in preference to the mortgage indebtedness, the purchaser at the sale, the railroad company, the railway company, the mortgagors and the mortgagee, the Mercantile Trust Company, as a subsequent incumbrancer, and Alexander H. Bell, the priority of whose allowance of $10,000 as special counsel for the complainant the appellants challenge, are interested in the appeal, and should have been made parties thereto.</p>

<p>1. Appeal — Parties—Allowanch nr Open Court.</p> <p>An appeal allowed In open court at the term when the decree was rendered, and duly perfected, brings into the appellate court, without citation, all the parties whose presence is necessary to a determination of the rights of the appellant.</p> <p>2, Corporations — Suit against Officers — Parties.</p> <p>A suit in a federal court by a creditor of a corporation, in behalf of himself and all other creditors, against officers of the corporation, to charge them with liability under the Illinois statute (Rev. St. e. 32, § 16), which makes all directors and officers of a corporation personally liable for its indebtedness in excess of the amount of the capital stock, created with their assent, is one to which neither the corporation nor its assignee in insolvency is an indispensable party, and their joinder will not he required where it would defeat the jurisdiction of the court.</p>

This is a bill brought by the appellee in the court below to have declared void certain tax sales made in 1895 for unpaid taxes of 1894, under which the respective appellants claim title to or interests in various parcels of land in Pasco codnty, Fla., alleged to be the property of the appellee. After several amendments to the bill, the cause was put at issue, and referred to a master of the court to state the facts.

<p>Application by Complainant' for Issuance of Letters Rogatory.</p>

<p>Life Insurance — Avoidance of Policy for Misrepresentation — Warranties in Application.</p> <p>Where a policy of life insurance states that it is issued in consideration, inter alia, of the “statements and agreements” contained in the application, and the application closes with the declaration: “I hereby declare that ! have read and understand all the above questions and the answers thereto, and they are hereby made part of my application for assurance, * * * and I hereby warrant said answers as written to be true,” — the answers to the questions in such application are warranties, and not merely representations, and, if any of them are untrue, it avoids the policy, without regard to the question of their materiality, or the good faith of the insured.</p>

<p>Promissory Notes — Actions—Defenses.</p> <p>In an action on a promissory note by plaintiffs who allege that they are bona fide indorsers for value before maturity, an affidavit of defense which does not deny such allegation, but sets up an oral agreement between defendant and the payee at the time the note was signed that defendant should not be held liable thereon, and that the payee then stated that such arrangement was satisfactory to his brother (one of the plaintiffs), is insufficient, even conceding that such agreement could be proved, to affect the note, since it fails to show that plaintiffs were parties to the agreement, or to aver that they had notice of it before acquiring title to the note.</p>

<p>Eminent Domain — Taking of Property for Public Use — Destruction of Easement.</p> <p>Owners of land lying on a stream, who, with their ancestors, have used the waters of such stream for nearly 100 years for flowing the land in the growing of rice, have acquired an easement therein which constitutes property, within the meaning of the fifth amendment to the constitution, and they, are entitled, to maintain an action against the United States to recover just compensation for the taking of property for public use upon an allegation that the federal authorities, in the exercise of their lawful power to improve navigation, have diverted the waters of the stream, and thereby destroyed such easement, and the value of the land to which it was appurtenant.</p>

<p>‘1.- Bills and Notes — Guaranty—Construction.</p> <p>Defendants executed the following instrument: “As security for the atJached note, the undersigned hold claims amounting to more than the 'amount thereof; and, for valuable consideration, we agree, if the above-described note is not paid at maturity, to collect said claims, and to pay the-full amount due on said note to the holder thereof, without any deduction or charge.” Meld, that the instrument was an absolute, uncondi.tioha'l guaranty to pay the note, and not merely an agreement to collect the claims mentioned and pay the note therefrom.</p> <p>’& Same — Defenses.</p> <p>Where one who has signed a contract reciting a consideration, and guarantying the payment of a note given for a loan made in reliance on his guaranty, is sued on his contract, he cannot set up the defense that he has received no consideration for his guaranty, and no notice of its acceptance.</p>

This is a writ of error to review a judgment of the circuit court for the Eastern district of New York upon a verdict in favor of Justus L. Smith, the plaintiff in the circuit court, against Joseph R. Wright, the then defendant, ■ in an action at law upon a parol contract.

<p>Monopolies — Anti-Trust Law — Action for Damages.</p> <p>Section 7 of the anti-trust act (26 Stat. 209), giving to-any person injured by any other person or corporation by reason of anything forbidden in the act the right to recover treble damages, does not authorize an action against an alleged trust corporation, by one who was a party to its organization and a stockholder therein, to recover damages resulting from the enforcement by defendant of rights given it by tbe alleged unlawful agreement.</p>

<p>Contra ct — Consid eratton.</p> <p>Plaintiff’s promise to advertise defendant’s manufactures in certain papers, the amount of advertising to be optional with plaintiff, is, after he has advertised therein, a sufficient consideration for defendant’s agreement, appointing plaintiff its agent for a definite time for sale of the manufactures on commission.</p>

<p>Attorney and Client— Value or Services — Expert Testimony — Trial-Questions for Jury.</p> <p>Where, in an action by an attorney for value of services, Hiere was evidence of the nature and character of the services rendered, and the evidence established by practicing attorneys as to the value was that the services were worth $5,000, it was error to instruct that, if the jury found for plaintiff, he was entitled to recover in that sum, as the jury were nid bound by tbe evidence of tbe experts, but were entitled to find tbe value from their own opinion, considering the nature of the services and the time expended.</p>

<p>1. Accident Insurance — Law Governing Contract — Place of Execution.'</p> <p>Ky. St. § 679, relating to life insurance, provides that “all policies or certificates hereafter issued to persons within the commonwealth by corporations transacting business therein under this law” which contain any reference to the application or constitution or by-laws of the corporation as part of the contract shall have attached a copy of such application or the provisions of the constitution or by-laws referred to, otherwise such provisions shall not be received in evidence or be considered as a part of the contract. An accident insurance association, having its national headquarters in another state, was composed of divisions and local posts; and one of such divisions, having subordinate posts, was located in Kentucky. Benefits were paid through the posts, which also received applications for membership and dues, and forwarded them to the division, which passed upon the eligibility of the applicant, subject to approval by the national office. Certificates were issued by the national secretary and sent to the division, through which they were received. by the members. Held, that such association was transacting business in the state of Kentucky, within the meaning of the statute, and a certificate so issued and delivered therein to a person residing in the state was subject to its provisions.</p> <p>S. Same — Foreign Companies — Doing Business in State.</p> <p>Where an insurance association in fact does business in a state by soliciting members and issuing policies therein, its contracts so made are governed by the laws of the state, regardless of whether or not it applied for the privilege of doing business therein as required by the statute.</p> <p>3. Same — Character of Company — Fraternal or Assessment Companies.</p> <p>An association having a membership of traveling men issued certificates to its members which entitled them to benefits in ease of death or injury from accident; the same being paid from a fund created primarily by the' membership fees and annual dues, but for which assessments were to be made if required. There was a central or national organization, with state divisions and local posts, although members were received through the divisions where there was no post. The benefit or indemnity feature seemed to be the principal purpose of the association, and the annual dues were divided between the post, if any, the division, the central association, and the indemnity fund. Eeld, that such association was not a secret or fraternal organization under the supervision of a grand or supreme body, and whose members were received “through the lodge system exclusively,” within the meaning of Ky. St. § 641, but was an insurance organization on the co-operative or assessment plan, as defined in sections 664, 665, and subject to the provisions applicable to such associations.</p> <p>4. Same — Kentucky Statute — Special Limitation of Action.</p> <p>Under the provision of Ky. St. § 679, requiring all policies or certificates issued to persons within the state by any corporation transacting business therein to have attached thereto a copy of any provision of the constitution or by-laws of the corporation referred to therein, or which is made a part of the contract, where such a corporation issued a certificate to a member which entitled him “to all the benefits accruing from such membership under the provisions of the constitution and by-laws of their association, * * * which are made a part of this certificate,” the benefits in ease of the death of the member to be paid to a beneficiary named, but no copy of any part of the constitution or by-laws was attached, the association cannot plead in bar of an action by the beneficiary after the death of the member a special limitation of six months contained in the constitution, but which was not shown by the certificate.</p> <p>5. Same — Effect of Failure to Comply with Statute.</p> <p>In such case, however, the constitution may be looked to for the purpose of ascertaining the amount of the benefits recoverable, since the provision fixing such amount adds no now element to the contract, and the association will not he permitted to avoid the contract by its own wrong, in failing to comply with the statute.</p> <p>6. Same — Death from Accident — Killing isy Insane Person.</p> <p>A provision of a policy insuring against death by accident, exempting the company from liability for death from “intentional” injury inflicted by the insured or any other person, does not preclude a recovery where the insured was killed by an insane person, incapable of forming a rational intent.</p>

<p>Master and Servant — Railroads — Injuries to Servant — Contributory Negligence.</p> <p>A locomotive engineer, whose train was standing on a siding waiting for a passenger train, went under his engine to repair the air-brake apparatus, knowing that another freight train near him would hack in on the same siding in the rear of his train in order to allow the passenger train to pass. He failed to set the brake on his engine, which would have held his train, and failed to notify either train crew that he was under his engine, and did not display any signal or warning. While thus employed, the other freight train hacked against his train, forcing it forward, killing him instantly. Held, that he was guilty of contributory negligence.</p> <p>Grosscup, Circuit Judge, dissenting.</p>

<p>In Error to the. Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The action in the Circuit Court was in assumpsit upon the common counts by the defendant in error against the plaintiffs in error, to recover the value of certain lumber sold and delivered by the latter to the. former. The account annexed was for balances due upon merchandise sold on twenty-three different dates, running from the 22nd of February, 1898. to the 201 h oí May, 3898, inclusive, amounting in all to four thousand and fifty-seven dollars and twenty-three cents. ;. M</p> <p>Against this the plaintiffs in error sought to recoup or set off the damáges said to have been suffered by them, in the failure of the defendant in error to fill three certain orders relating to dock oak lumber of the dates of October 19th, 1897, January 31st, 1898 and April 8th, 1808; but at the conclusion of the evidence the court instructed the jury to disregard these claims, and return a verdict for the plaintiff for the full amount claimed. Error to this instruction is assigned.</p> <p>It is insisted by the plaintiffs in error that in December, 1896, they made a contract with the defendant in error, resting wholly in parole, however, by the terms of which the latter was to furnish to the former all the dock oak that the former would require for their trade in the Chicago market during the year 1897, at certain prices not in dispute, and that this contract was broken in the failure to fill the order of October 19th, 1897. It is insisted, also, that in January, 1898, a like contract was made for the year 1898, except that the price was to be one dollar per thousand feet in excess of the prices for the preceding year, and that this contract was broken in the fajjure to fill the orders of January 1st, 1898, and April 8th. 1898 respectively.</p> <p>The defendant in error had been for many years engaged in cutting, manufacturing, and selling lumber largely at wholesale with their principal place of business at Cincinnati; the plaintiffs in error had for nine years been engaged in Chicago in the business of buying and selling hard wood lumber, including dock oak. In supplying their customers in this trade the plaintiffs in error dealt largely with the defendant in error. It does not appear that the plaintiffs in error were manufacturers, or that the lumber purchased by them went into use or consumption by them, except as they resold it to their customers. They were exclusively lumber merchants, obtaining their supplies largely from the defendant in error, and reselling them to their own customers.</p> <p>There was no evidence that the defendant in error accepted the orders of October 19th, 1897, or January 31st, 1898, or that, independently of the general contract relied upon, they agreed to fill them; nor was there evidence that the plaintiffs in error, in reliance upon the alleged general contract of January, 1898, had, previous to these orders, entered into any contracts that required the lumber ordered.</p> <p>The order of April 8th was sent by mail. Respecting this defendant in error wrote: “We are doing all we can on all of your orders and are shipping you more lumber than to any one of our other customers. I have called the boys’ attention to-night to the 24' and will hustle it all I can.”</p> <p>Omer F. Crane, one of the plaintiffs in error, testifies that a short time subsequently he took this order to the defendant in error, and had the following conversation with C. Crane, its president: “He” (0. Crane) “looked it over and said he would have to have more money for this Tot of stuff. I told him we had made 'out contracts and we couldn’t stand any more money than that. He said that he wouldn’t fill it. So that was about all that was said that day. The next day I said What are you going to do about this thing? Are you going to fill it or not? If you are not going to fill it, I am going to Parkersburg and get it filled.’ He said, T will tell you what I will do. I will take this order and fill it, but I won’t fill any more at those prices.’ So he got up with the letter and I says, Will you sign this acceptance,’ and he said ‘that is not necessary. I will have it entered on the book, and will have it filled.’ And we walked over to Mr. Mowbray and said, ‘Fred, put this order on the book and see it is filled, and don’t fill any more at those prices without first consulting me.’ ” This testimony is uncontradicted.</p> <p>The order of April 8th was to have been filled within the next thirty and sixty days. It was but partially filled. In the meantime prices rose, and the defendant in error failed to complete the order.</p> <p>In the general lumber dealings between the plaintiffs in error and defendant in error there was no particular agreement respecting the time of payment. Sometimes the lumber was paid for promptly, and sometimes by the giving of sixty or ninety days paper. On this general account the plaintiffs in error Were in arrears, both for the months of April and May, amounting June 2nd, according to their own letter, to the sum of thirty-eight hundred dollars, about twenty-one hundred of which was for lumber shipped under the order of April 8th. Respecting this arrearage the defendant in error wrote, May 31st, 1898, as follows: “I want you to send us -what Is due us for April ax once; also tlie May account as soon as you get it cheeked up. It is just our time for laying in timber and we are using all the money we can get hold of, and we are not in shape to give long credit to anybody.” Replying to this, June 2nd, 1898, the plaintiffs in error wrote: “Wo owe you about $3800.00 which amount we will hold until you make a showing that you are going to furnish the oak. We don’t blame the firms for kicking; (the firms with whom it is claimed plaintiffs in error had contracted to furnish dock oak) they have the docks torn up, have 2 or 3 tugs and pile driver laying Idle waiting for Oak. The different firms owe us about $6000.00; they say they would not pay us one cent of money until we fill their orders. The $3800. that we hold of yours will be a very small per cent, of the amount it will cost you If yon don’t go ahead and fill the order.” To this, defendant in error, June 3rd, 1898, replied as follows: “We will not load another hoard of lumber until we get paid for what we have already sent you. Now, here are bills that are 60 days past due, as this lumber was all to be paid for within ten days after date of invoice less 2%. We do not care about giving credit any further than we have, and w-e will not send any more lumber until this is paid for.”</p> <p>The further facts are stated in the opinion.</p>

The plaintiff in error brought suit to recover for injuries sustained from collision with a train of the defendant in error at the crossing at Kedzie avenue, in the city of Chicago', on December 23, 1808, between 3 and 3:30 p. m. That avenue is laid out practically north and south, and is situated in the northwestern part of the city, remote from any business or residence district.

<p>1. Sale — Action for Price of Machinery — Effect of Provision Requiring Acceptance or Arbitration.</p> <p>Plaintiff huilt and furnished certain steam dryers for defendant, and, a controversy having arisen as to whether they fulfilled the contract, after some years a second contract for settlement was entered into, by which it was agreed that the dryers should he repaired by plaintiff, and under its direction, so as to render them steam-tight and operative; that or their acceptance by defendant, or on an award by arbitrators, which the contract provided for, finding them to meet such requirements,, defendant should pay a certain sum therefor, but, in case the arbitrators should decide that they were not steam-tight and operative, it should pay nothing, if eld, that the essential fact to entitle plaintiff to recover under such contract was its making the dryers steam-tight and mechanically operative, as therein required, and the provisions for acceptance or arbitration were merely methods for ascertaining whether plaintiff had fulfilled such requirement; hence, in the absence of an acceptance, and on the failure of an award by the arbitrators through the fraud or collusion of defendant, a court might properly proceed 1o ascertain by the verdict of a jury whether plaintiff had fulfilled the contract, and render judgment accordingly.</p> <p>2. Same.</p> <p>While an acceptance of the dryers by defendant under such contract was suspended by the subsequent selection of arbitrators by the parties, and would have been superseded by an award fairly made, where such an award was prevented by the fraud of defendant plaintiff was restored to its rights under the acceptance, and entitled to recover thereon if proved.</p>

<p>Colleges — Liability for Injury to Student.</p> <p>A college, by reason of its eleemosynary nature and its relation to its students, is not liable for a personal injury to' a student caused by negligence of the superintendent of college buildings in clearing land owned by the college preliminary to erecting thereon a heating plant for college purposes.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Provable Debts — Contract op Indorsement.</p> <p>The contract created by the indorsement by a bankrupt of a note which had not matured at the time of the filing of the petition ¿gainst him is not a debt which is a “fixed liability * * * absolutely owing,” provable against his estate, under Bankr. Act 1898, § 63a, subd. 1; but under the definition of “debt” In section 1, as “any debt, demand, or claim provable in bankruptcy,” section 63a, subd. 4, allowing proof of any debt “founded * * * upon a contract, express or implied,” is broad enough to permit proof of such claim as a demand founded on an express contract, where the note has matured, and the liability has become fixed, before the proof is made.</p>

<p>Bankruptcy — Proving Claims — Debtor op Bankrupt.</p> <p>A creditor of a bankrupt, who is also Ms debtor in a larger amount, will not be permitted to prove Ms claim against the estate so long as Ms own debt remains unpaid.</p>

<p>1. Bankruptcy — Lien op Judgment — Fictitious Date.</p> <p>Though, under the laws of Pennsylvania, where a judgment bond is secured by mortgage, the lien of the judgment when entered is carried back for certain purposes to the date of the recording of the mortgage, sue! fictitious date will not be assigned to it under the bankruptcy law, where the judgment is entered after commencement of the proceeding in bank ruptcy.</p> <p>2. Same — Judgment after Commencement of Proceeding.</p> <p>Bankr. Act 1898, § 67f, providing that all judgments obtained against an insolvent within four months prior to filing of petition in bankruptcy against Mm shall be deemed void if he is adjudged a bankrupt, has no application to judgments entered after the proceeding in bankruptcy has begun.</p> <p>3. Same — Title op Trustee.</p> <p>Under Bankr. Act 1898, §? 70, providing that, after the trustee is appointed, the title to the bankrupt’s property shall vest in him as of the date of the adjudication, the trustee takes the property free of the lien of a judgment against the bankrupt entered after the adjudication and before the appointment.</p>

<p>In Bankruptcy. On creditor’s petition, answer, and report of referee.</p> <p>The petition was filed July 9, 1900, and alleges two acts of bankruptcy based upon the transfer by the alleged bankrupt' while insolvent of property with intent to prefer a creditor. The alleged bankrupt on the 26th day of July 1900, filed an answer denying the said acts of bankruptcy. The issue thus joined was referred to the referee to ascertain and report the facts under rule 8 of this court. The referee’s report was filed September 6, 1900.</p>

<p>Petition to Eeview Order of the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon an appeal from an order of the district court, Southern district of New York, which directed that so much of the right under a judgment obtained by Clark against Kenney for $20,906.66, in the supreme court of New York, and the levy made by the sheriff under the execution issued to him upon the said judgment, as is represented by the proceeds of the sale made by said sheriff under said execution, be preserved for the benefit of the estate of the bankrupt, and that, the same pass to, and shall be preserved by, the trustee, and further directing the sheriff to turn over said proceeds, viz. $12,451.09, now in his hands. 97 Fed. 554.</p>

<p>In Bankruptcy. On petition of trustee, and plea to jurisdiction.</p>

<p>Bankruptcy — Acts of Bankruptcy — Permitting Preference Through Legal Proceedings.</p> <p>A petition in involuntary bankruptcy sufficiently shows an act of bankruptcy, under the bankrupt act, by suffering or permitting a creditor to obtain a preference through legal proceedings, not having vacated or discharged such preference at least five days before final disposition of the property affected thereby, where it alleges that the alleged bankrupt while insolvent permitted a judgment against him to remain unsatisfied after execution had been issued thereon and a demand made upon him thereunder, and garnishment proceedings instituted on such judgment, in which the garnishee had answered, admitting a sum to be due from him to the defendant, where moré than five days had elapsed after the time when the garnishee might have answered under the statute and paid the money into court.</p>

<p>Bankruptcy — Provable Debts — Notes Intended as Gift.</p> <p>A husband, intending to make a gift of money to- his wife;' loaned the money to a firm in which he was a partner, executed the note's of the firm therefor payable to bis wife, and placed such notes in his private drawer in the firm safe, where they remained until after the Institution of proceedings on which the firm was adjudicated bankrupt, .Held, that there was no such delivery as to consummate the intended gift, and render the notes provable by the wife against the partnership estate in bankruptcy.</p>

<p>1. Bankruptcy — Title to Property — Homestead Exemption under Virginia Statute. . . ■</p> <p>Const Va. art. 11, § 1, relating to homestead exemptions, provides that every householder or head of a family “shall bo entitled. * * :?1:-td hold exempt from levy,” etc., property, real or personal, not -exceeding iri value ÍR2,OÜO. Held, that such provision merely gives- ,the debtor a-iprivi-i lege of exemption, and does not create an absolute exemption ,of any par-; ticular property, wblcb will prevent the title to such property from vesting in the debtor’s trustee in bankruptcy, under Bankr. Act 1898, § 70a, where the exemption is not claimed in his schedules. - ,-' ■■ ■</p> <p>2. Same — Waiver of Exemption in Note — Lien.</p> <p>Under Code Va. 1887. § 3647, which provides that a debtor may- waivd the benefit of his homestead exemption, and that, where he declares, siichi waiver in an obligation, property which he would be entitled to hold as exempt under the law may be subjected to the payment of such obligation under legal process, a note in which the debtor waives his right of exemption creates no lien on any property which is preserved by Bankr. Act 1898, § 67d.</p> <p>8. Same — Claim of Exemption — Bight to Amend Schedules.</p> <p>A bankrupt should be permitted to amend his schedules, at any time before the distribution of his estate, to assert a further claim to exemptions allowed him by the laws of the state, where such claim is made in good faith and for the benefit of his family; but he will not be permitted to amend and assert such claim, after title to the property has vested in his trustee, where its.purpose is, and its only effect will be, to give a preference to those of his creditors who hold notes in which he has waived his right of exemption.</p>

<p>Application for an appeal to the circuit court of appeals, and also to be allowed to file a petition for revision, and to have the court fix the necessary bonds, issue the necessary citations, direct the necessary notice to he given to defendants, and to otherwise' perfect the appeal and revision.</p>

<p>Petition ‘for Revision of Proceedings in the District Court for' the 'District' :of; 'Massachusetts.</p>

<p>Bankettptoy — Suits by Trustee — .Tubikdiotion.</p> <p>A general appearance by a defendant to a petition by a trustee in bankruptcy does not constitute a consent to be sued in the court of bankruptcy, which will prevent him from objecting to its jurisdiction on the filing of an amended petition, where such amended petition for the first time states a case authorizing relief against him.</p>

Petition for Revision of Proceedings in the Circuit Court of the United States for the Eastern District of Louisiana. On March 8, 1900, suit was instituted by the landlords of Mrs. Lisette See-bold (now the bankrupt) for rent for certain premises in the city of New Orleans claimed to be due the landlords on that day by the terms of the lease under which the premises were held and occupied.

<p>Bankruptcy — Composition—Confirmation—Appear—Parties.</p> <p>A bankrupt wliose applscaiion to have a composition confirmed was not formally opposed by creditors cannot appeal from a decree of refusal; there being a want of parties, as the question is merely between the court and the bankrupt.</p>

<p>In Bankruptcy.</p>

The facts are not disputed, having been agreed upon before the referee, and in the District Court, as follows: 1. “That on the 17th day… Held: and said Edward B. MeKey at said meeting of creditors was duly elected trustee for said bankrupt, and at once qualified, and has been acting as such trustee since the time of his election. 2. “That said Patrick F. Ryan was on said 17th day of January, A. D. 1900, and for four months next prior thereto had been insolvent, and that the…

In Bankruptcy. In the matter of the petition of the Citizens’ Bank of Salem for an adjudication in bankruptcy against the W. O. De Pauw Company. On appeal from an order sustaining a demurrer to the petition. The action below was in bankruptcy, and was upon the petition of the Citizens’ hank of Salem, a corporation organized under the laws of the State of Indiana, to declare the W. C. Del’auw Company, also a corporation under the laws of Indiana, an involuntary bankrupt.

This canse comes here upon appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers which affirmed a decision of the collector of the port of New York touching the rate of duty to be paid by certain imported merchandise.

<p>Customs Duties — Classification—Cotton Cloth, Pilled.</p> <p>The term “filled,” as used in paragraph 311 of the tariff act of 1897, fixing the duty on “cotton cloth, filled or coated,” which is a manufacturing, rather than a commercial, term, is not confined in its meaning to such goods as have been weighted with a foreign substance — usually an inorganic material — to give them a factitious solidity, in which sense it' was formerly used in England, but the filling may be starch alone. But, whatever substance is used, to constitute “cotton cloth, filled,” within the meaning of that section, such quantity must be used as to substantially close the interstices in the cloth, and make a plain surface, and the samples of imported “Scotch Hollands,” or “King’s Hollands,” used for window shades, stiffened with 20 per cent, in weight of starch, but which does not substantially close the interstices, are not dutiable under such paragraph, but under paragraphs 304-309, being the countable cotton clauses.</p>

<p>Appeal from the Circuit Court of the United States for the South? ern District of New York.</p> <p>This cause comes here upon appeal from a decision of the circuit court,’ Southern district of New York, affirming a decision of the hoard 'of general appraisers, which sustained the action of the collector of the pqrt of New York in assessing duty on certain imported goods, consisting of lamps,-glq-bes, lamp shades, chimneys, and candelabra, all of which were made of glass; and decorated in some way. ■•,.'/</p>

<p>Customs Duties — Schiedam Schnapps.</p> <p>Wolfe’s Aromatic Schiedam Schnapps is dutiable under the tariff act of March 3; 1883, par; 99, as a proprietary preparation.</p>

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

<p>1.- Indians — Intoxicating- Liquors.</p> <p>Indians who, living in their tribal relations, are, under the laws and treaties, wards of the government, are; necessarily under the charge of “an. Indian superintendent or agent,” though off the reservation at the time liquor is" given them, within Rev. St'. § 2139, as amended July 23, 1892 (27 Stat.' 269), and January 3Ó, 1897 (29 Stat. 506), inhibiting the giving of intoxicating liquors “to any Indian, a ward of the government .under charge of any -Indian superintendent or agent.”</p> <p>2;, Same— Intent.</p> <p>Tpe ’question, of .wrongful intent in furnishing intoxicating liquors to-Indians" is,,-imínáterial under the statute declaring'that any person who shall fntnish’-it-to-ihem-shall’be"punished.’!" --</p> <p>B: Same — Liability of Ttoian.</p> <p>•</p> <p>An Indian is within the statute decreeing that any person who shall furnish intoxicating liquors to Indians shall tie punished.</p>

<p>Equity Pleading — Supplemental Bill — When Pbopub.</p> <p>Where, pending a suit in equity for infringement of a trade-mark, complainant sold its business, good will, and trade-marks to another, but did no-t convey its right to recover for past infringement, it parted with only a part of its interest in the suit, and the court, having acquired jurisdiction, will retain it to dispose of all the questions involved,, and .will permit the filing of a supplemental hill to bring the grantee before It as a party complainant.</p>

<p>1. Patents — Infringement.</p> <p>Patent No. 307,746, claim 1, as to sealing wax composed of certain designated substances and finely-ground fibrous material, held infringed by the Propfe patent, No. 636,922, claiming a sealing wax composed of certain named substances and “fibers of asbestos wool.”</p> <p>2. Same — Oi.aims for Functions.</p> <p>In patent No. 303,984, for improvements in machinery for manufacturing wax tapers and coated strings, the first class of claims are claims for functions, and void.</p> <p>8. Same — Anticiration.</p> <p>Patent No. 303,984, for improvements in machinery for manufacturing wax tapers, as to the first class of claims held anticipated in view of McPhetridge patent, No. 16,211.</p> <p>4. Same — Restriction.</p> <p>Patent No. 303,984, for improvements in machinery for manufacturing wax tapers, is, as to the second class of claims, unless they are restricted to the precise combination, anticipated by prior patents.</p> <p>5. Same.</p> <p>Patent No. 303,984, for improvements in machinery for manufacturing wax tapers, held not infringed.</p>

<p>1. Patents — Construction or Claims.</p> <p>When the claims of a patent are open to two constructions, one of which destroys', while the other saves, the patent, the court will not hesitate to adopt the latter, especially as against one who has certainly copied and Is using the invention.</p> <p>2. Same — Infringement—-Waist Belts.</p> <p>The Gaisman patent, No. 542,306,' for an improvement in waist belts (claims 1 to 5), construed, and 7held valid, and to include as a part of the fastener or holding device claimed the button holders shown in the preferred method of construction, and also held infringed.</p> <p>In Equity. ' Suit-for;infringement-of patent.--On.-final-•hearing',</p> <p>-- The- patent 'in suit is No. 542,300, granted to Henry J. Gaisman, assignor' of one-half to Ferdinand S. M, Blun, for an improvement in waist belts for men and women. The specification says: “My invention provides convenient 'means' for"firmly holding the belt' and trousers in the desired position relatively, to' each other, so that the belt or -garment cannot, fall below of work up above the fixécl proper position; also, when" desired, can afford such connecting means as to conceal from the outer view of the belt the existence of 'such means and leave the outer facing' of 'the belt undisturbed with tile appearance of an ordinary belt. With my invention suspenders may be worn or omitted. -The belt may be worn without making use of the invention. Trousers are generally .supplied with suspender buttons. It is common to provide each'side of the front with two buttons and two buttons in the back;' but they are liable to vary in their distance'apart ¿nd in'their positions forward and backward. My invention provides means for allowing each button or its connecting means to adjust itself laterally to requirements. If also allows a belt of a given size to adjust itself to a wide range of sizes of waist.' My belt holds itself in such a position as to cover and conceal the joining' line of the upper and lower garments. * * * The engagement of the buttons with the button holder is reliable and can be effected rapidly. ’ It insures the required position of the belt and upper edge of the trousers, so that' the upper edge of the trousers is concealed under the belt. While the details of construction shown in the drawings are the ones I prefer, 'they are subject to modifications which would not depart from the' spirit of the invention- and are intended 'to be included by" the claims. The form of holder and its means of engaging and disengaging with the button may be varied within wide limits. The stay and metal facings may be varied in form, proportions, and material. The slot or guideway need not be straight. It may. obviously be curved', waved, or variously formed. Instead of the outer portion of the. belt being thicker than the inner portion-'or lining the conditions may' be reversed. ' I can dispense with the lining and attach to the main or outer body' of the belt a horizontally-formed. guide, or slotted piece of metal .or suitable material, which shall Carry the button or button holder.” The first five claims of the patent are involved.' The claim chiefly relied "on is the third, which is as follows: “(3) As a new article :of manufacture, a flexible belt having secured thereto a. series of fasteners each provided with .a horizontal slot ojien at one end, said - fastener being located on the inner face of the belt, and being spaced, apart, .and means located at the open end of said slot to prevent the spontaneous removal of the button through the open end of the'slot under oydipary .conditions of use, but arranged to., allow the button to be removed by 'a 'direct pull when required, all substantially as herein specified.” The, answer -alleges the usual defenses of lack of novelty and invention. The defense- principally-relied- upon at the argument and in the. brief is that if the claims are given the'limited construction required by the prior art the d'efendánt'does not infringe. -</p>

<p>Patent — Suit for Infringement — Injunction.</p> <p>Where complainant in an action for a preliminary Injunction asks leave to withdraw so much of its motion as seeks an injunction based on infringement of a certain claim of a patent, and it does not appear from complainant’s moving papers that he charges respondent with infringing in the manufacture and sale of the articles referred to in such claim,, the question of such infringement will not be passed upon solely at respondent’s instance.</p>

<p>1, Patents — Infringement—Right to Impose Conditions on Purchasers.</p> <p>The manufacturer of a patented article has the right in selling the same to jobbers for the trade to prescribe conditions and restrictions, to govern its subsequent sale, and one who buys from a jobber with notice of such conditions and restrictions is bound thereby, and for their violation may be treated as an infringer.</p> <p>3. Same — Sale in Violation oe Known Restrictions.</p> <p>Complainants manufactured a patented phonograph, which they sold only under what was called a “jobber’s agreement,” which contained certain conditions and restrictions as to the prices at which the instruments were to be sold. Defendants applied to purchase, and were sent a, copy of such agreement to sign, and informed that no sales were made except thereunder. They refused to sign such agreement, and subsequently procured,a third person to purchase and ship them the instruments, which he did by signing the agreement. Defendants proceeded to sell the instruments so bought in violation of the conditions ,of, the agreement. Held, that they were not bona fide purchasers without notice of such conditions, notwithstanding they took the instruments from the first purchaser unconditionally, and without knowledge that he signed fhe agreement, but, under the circumstances, were put upon inquiry,- and -were, moreover, bound by the knowledge of the first purchaser, as -their representative, and in selling in violation of the known rules of complainants rendered themselves liable as infringers.</p>

This cause comes here upon an appeal from a decree of the circuit court, Southern district of New York, sustaining the first claim of United States patent 615,073, and finding infringement in defendants’ structure. 97 Fed. 607.

<p>Pateítt — Hose Supporter — Infringement.</p> <p>The Parramore patent, No. 629,891, to provide an improved construction designed to enable a skirt to be' clasped around the corset by means of hangers without affecting the hose supporter, must he limited to the means illustrated in the specifications, or its equivalent, and thus limited is not infringed.</p>

<p>Patents — Damages for Infringement — Loss of Profits.</p> <p>On an accounting in a suit for infringement, where it is shown that defendant placed the infringing article on the market at a much lower price than the patented article was sold by complainants, it cannot he assumed as a basis for computing complainants’ loss of profits that they would, hut for the infringement, have sold the same number of the articles as were sold by defendant at the higher price.</p>

<p>Patents — Skirt Protectors.</p> <p>The Poyet patent, No. 621,124, for an improvement in skirt protectors, is not invalid for indefiniteness, in failing to specify bow much one of tbe two heads of tbe skirt protector should be wider than the other, or how much the number of weft threads in one head should be greater than < the number in the other.</p>

<p>Patents — License Agreement — Construction—Royalties.</p> <p>A lieense agreement granting exclusive rights to defendants under two letters patent for the same invention, the younger of which did not expire until May 11, 1903, provided that the rights and obligations of the parties thereunder should continue until August 29, 1S99, the date of the expiration of the elder patent, or so long thereafter as the licensee should continue to hold for the joint benefit of the parties any exclusive license rights under a prior license agreement, which contained a clause providing that such agreement should terminate with the life of the elder patent, “or, should any other patent or patents be obtained on pending applications relating to or covering a similar subject-matter as said patent, * * * then with the life of such subsequent patent or patents, having the longer duration, which, when issued, shall be considered to be covered by this agreement.” Held, that defendants’ obligation to pay royalties as required by their license terminated with the life of the younger, and not the elder, patent.</p>

<p>Patent Knitting Machines — Infringement.</p> <p>Tiie Branson patent, No. 333,102, relating to improvement In knitting machines, in view of the prior state of the art, and of the fact that the . patented contrivance was of doubtful utility, and never went into practical use, held not infringed.</p>

<p>1. Patents — Ham-Boiltng Wrappers.</p> <p>Letters patent No. 624.839, for an improvement in ham-boiling wrappers, because of the prior state of the art, is limited to the specific device whereby, the corners of the wrapper being folded back, a lacing cord is tightly engaged with the hooks, so as to envelop the ham completely, and form a sack.</p> <p>2. Same — Inprtnokmfnt.</p> <p>Letters patent No. 624,839, for an improvement in ham-boiling wrappers, is not infringed by a wrapper identical with the patented article, except that the fastenings are straps and buckles instead of a lacing cord, engaged with hooks, studs, or eyelets.</p>

<p>Patents — Infringement—Cash Carriers.</p> <p>The Osgood patent, No. 357,851, for an improvement in store service apparatus, which describes in claim 1 a cash carrier consisting of a box having rigidly attached hangers by means of which it is suspended from * grooved pulleys traveling one behind the other on a tautly-stretched horizontal wire, the purpose of such construction being to prevent oscillation of the car in the direction of the way so as to enable it to be impelled from one end of the way to the other by a single push or impulse, is limited to the precise means shown for preventing such oscillation, and is not infringed by a carrier which employs a different mechanism to accomplish the same purpose.</p>

<p>Patents — Infringement—Cash Carrier.</p> <p>The Osgood patent, No. 357,851, for an improvement in store service apparatus, claims 1 and 2, construed, and held not infringed.</p>

<p>Couliston — Meeting Steamer and Tow— Crowding uy Overtaking Steamer.</p> <p>Evidence considered in a suit for collision between an ore-laden barge in tow passing down through the dredged channel in Lake St. Clair and the meeting- steamer, Edward Smith No. 2, and held to establish that the collision ivas dne to fault in the officers and crew of the Smith in failing to properly navigate their vessel, which was permitted to sheer after passing the tng, and swing across the course of the tow, breaking her cable, and also to the fault of the Masaba, an overtaking steamer, which was attempting to pass the Smith without having signaled her intention, and in violation of the rules governing navigation in the channel.</p>

<p>1. Charter Party — Construction—Lay Days.</p> <p>A charter party-provided that from 6 o’clock of the morning next after the .vessel “is reported and all ready to discharge,” of which notice is to be given by. the captain in writing to the consignee, the lay days shall begin to run. The consignee received verbal notice of the arrival of the vessel in the harbor at 9 a. m. of September 8th, and gave notice to her agents, designating a certain pier for her berth within an hour or two afterwards, before written notice of readiness to discharge was received. About 11 a. m. of the same day such written notice was given, which, however, was false, as the vessel was still in the harbor. She did not proceed.to her pier until 9 a. m. of September 9th. Held, that the lay days did not begin to run until G a. m. of the next working day; and where the vessel was discharged on the 21st, after deducting 10 hours of a working day on which it rained, and 1 Sunday, and 1 day’s disability of the vessel, the discharge was completed within the lay-day period of 7 days and 17 hours given by the charter.</p> <p>3. Same.</p> <p>A designation by a charterer of a berth for a vessel, on notice of its arrival in port, was given within a reasonable time when delivered.within two or three hours from such notice of arrival.</p>

■ Appeal from the District Court of the United States for the Northern District of Florida. Libel by Charles W. Hagerman against Benjamin Norton to recover demurrage under a charter party. From a decree in favor of libel-ant, libelee appeals. Affirmed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeals from the Circuit Court of the United States for the Southern District of Illinois. On motion to dismiss appeals.</p>

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

<p>Appeal from the United States Court of Appeals in the Indian Territory.</p>

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

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

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

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

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

<p>Appeal from United States Court of Appeals in the Indian Territory.</p>

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

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

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

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

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

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

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

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

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

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

<p>‘Appeal from the District Court of the United States for the District of Kentucky. In admiralty.</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United State's for the Southern District of New York;</p>

<p>On Motion to Punish for Contempt for Disobedience of Injunction. For former opinions, see 75 Fed. 388, and 88 Fed. 80. S. O. Edmonds, for the motioh. Sidney Henry, opposed. *</p>

<p>In Equity. Suit for infringement of patents. On motion for preliminary injunction. See 104 Fed. 887. John H. Miller, for the motion.' Edwin H. Brown, opposed.</p>

<p>On Motions for Judgment Non Obstante Veredicto and for a New Trial.</p>

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

<p>In Equity. Hearing on pleading and proofs. See 98 Fed. 8.</p>