Volume 106 — Federal Reporter

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

<p>1. Carriers — Fkbioht Rates — State Commission — Reasonableness.</p> <p>If railroad freight rates fixed by a state corporation commission are so low that they compel the railroad to conduct its operations at a loss or without a fair remuneration for its investment, then the property of the company is taken for public use without just compensation, and the rates are unreasonable and void.</p> <p>2. Same — Estimate—Rule.</p> <p>In estimating the value of a railroad company’s property for the purpose of determining whether freight rates fixed by a state corporation commission are so unreasonably low as to amount to a taking of the company’s property without due process of law, when by charging such rates the company cannot obtain a fair return on its property, sucli property must he estimated at its present value, and its cost, past or probable future value, or the cost to duplicate it are immaterial.</p> <p>8. Same — Fertilizer Rates™Reasonableness.</p> <p>Where, in a proceeding to set aside an order of a state corporation commission fixing freight rates on fertilizers, a special commissioner was unable to determine the exact cost of transportation, but found that, though the rate fixed decreased the profit arising from such transportation, there was still a profit, and that for four years preceding the railroad company had earned a fair net profit on the present value of its property, a finding that the rates were not unreasonably low was not erroneous.</p> <p>4. Bamio — Car-Load Rate — Establishment—Acquiescence.</p> <p>Where an order of a state corporation commission fixing the amount of fertilizers which should constitute a car load, in order to entitle the shipper to car-load rales, at 10 tons, was binding on all the railroad companies in tlie state, and the vast majority of such companies acquiesced therein, and the amount so fixed had been the amount fixed for several years prior to a change, it could not be said that such amount was unreasonable.</p>

<p>1. Building and Loan Associations —■ Contracts with Borrowing Stockholders — Law Governing.</p> <p>Contracts between a building and loan association incorporated and doing business under tlie laws of a state and its borrowing stockholders must be considered as having been made with reference to such laws, and as being governed thereby, notwithstanding tlie loans are secured by mortgages executed in another state, upon land there situated.</p> <p>2. Same -Insolvency — -Settlement with Borrowing Stockholders.</p> <p>Where the affairs of an insolvent building and loan association are being wound up in a federal court in the state of its domicile, the rule adopted by that court for accounting and settlement between the receiver of the corporation and its borrowing stockholders will be foRowed by a federal court of another district which has appointed an ancillary receiver.</p> <p>3. Same — Premiums.</p> <p>The equitable rule for settlement between an insolvent building and loan association and its borrowing stockholders, who have contracted, in accordance with the rules of the association, to pay premiums on their loans in monthly installments, is to charge each of such stockholders with the amount of his loan and interest, and also with the installments of pro-mium which matured prior to the appointment of the receiver, treating the installments not then due as canceled.</p>

At Law. In 1855 Joel Turnham executed a deed to the land in controversy, situated in Clay county, Mo., with the habendum clause to Ann R. Arnolij. “and to the heirs of her body”; the said Ann being the daughter of said Turnham.

This is a contest over the title to a certain note and real estate mortgage for $6,000 made by Abram A. Ver Brych, payable to Eliza O. Farnsworth, and dated 30th October, 1894. The plaintiff in error claims title under a will made by Eliza O. Farnsworth, the owner of the mortgage, dated November 10, 1895, which in terms bequeaths the same to her.

H. IT. Thornton and Ben De Roeheblave, the defendants in error, brought their action against D. G. Brent, the plaintiff in error, to recover of him damages for the, alleged wrongful seizute and detention of the steam tug Monarch, of which tiiey wore the owners. It is unnecessary to recite the counis of the declaration. The plaintiff in error, who- was the defendant in the court helow. was, on April 5, 1897, collector of customs of the port of Pensacola.

<p>Monopolies — Anti-Trust Act — Combination in Restraint of Interstate 'Commerce.</p> <p>The Tile, Mantel & Grate Association of California was organized for the purpose, as declared in its constitution and the preamble thereto, of uniting “all acceptable dealers” in tiles, fireplace fixtures, and mantels in San Francisco and vicinity (within a radius of 200 miles), and all American manufacturers of tiles and fireplace fixtures. Its constitution and bylaws provided that its active members should consist of dealers .in such articles in San Francisco and vicinity, carrying a stock of a stated value, wlxo should be elected to membership, each o£ whom should pay an entrance fee and annual dues, and the nonresident members should embrace all manufacturers throughout the United States who signed the constitution and paid the entrance fee. They provided that no dealer and active member should purchase from any manufacturer or his agent who was not a member of the association, nor sell any unset tiles to any person not a member for less than the list price, and that no manufacturer who was a member should se,ll his products to any dealer who was not a member. Held, that such association was illegal and in violation of sections 1 and 2 of the anti-trust act of July 2, 1890, being a combination in restraint of trade and commerce among the states, by imposing a tax on such commerce between its members, to the extent of the membership fees and dues, and an attempt to monopolize a part of the trade in the articles named between the manufacturers in other slates and (he dealers in San Francisco, which, in operation, did effect such monopoly, and tiiat under section 7 of such act such association and its members were liable in treble damages to a dealer, not a. member of the combination, whose business was injured thereby.</p>

<p>1. Street Railway — Collision with Team.</p> <p>Where plaintiff was driving a team of horses with a covered wagon in a city, and crossed an electric railway track, and looked up the street, of which he had an uninterrupted view for about 1,400 feet, and saw no car, and, after proceeding a distance of 400 feet, turned on the track to drive into a livery stable, and was struck by an electric car running 24 miles an hour in violation of the city ordinance, he could recover, though he failed to look before so crossing the track: it being in evidence that, if the car had been running at the rate of speed required by the ordinance, there would have been no collision.</p> <p>2. Witness — Impeachment.</p> <p>Where plaintiff called a witness to prove the rate of speed at which a street car was running prior to a collision, and he testified that it was going 12 miles an hour, plaintiff’s counsel, upon plea that he had been taken by surprise, could show that before going upon the stand the witness had stated that the car was going at a speed of 20 miles an hour.</p>

<p>Application by Henry Lowenstein for a discharge in bankruptcy. Report and opinion of George C. Holt, Referee:</p> <p>The issues on the specifications of grounds of objection to discharge having been referred to me to ascertain and report the facts, and the respective counsel for the bankrupt and the opposing creditor having duly appeared before me upon due notice, and having taken certain testimony, in addition to testimony previously taken in this proceeding, and a copy of said testimony, duly signed by said bankrupt, taken December 27, 1898, February 2 and April 10, 1899, being returned herewith, and the matter having been submitted upon briefs by Sol. Oppenheimer, Esq., counsel for Max Hirshkind, objecting creditor, and by Henry Gottgetreu, Esq., counsel for the bankrupt, and due deliberation having been had, I hereby report that the facts relevant to the objections filed are as follows:</p> <p>1. The first objection filed charges, in substance, that the bankrupt is the owner of a merchant tailoring business at 776 Lexington avenue, Hew York, and omitted to include in his schedules the good will of the business, the stock of goods, fixtures, and materials in the store. The second objection charges that the bankrupt destroyed, concealed, or failed to keep books of account. The specifications from the third to the ninth, inclusive, have been previously ordered to be treated as one, and the charge, in substance, as I understand them, is that the bankrupt has testified falsely in testifying, in substance, that the business which he purchased from Hirshkind was subsequently transferred to his father-in-law, and that the business which he was conducting at the time he filed his petition in bankruptcy was owned by his wife, and in denying that he in fact owned the said business.</p> <p>2. In respect to the objection that the bankrupt did not keep books of account, the fact was that he did not keep such books; but I do not think that the evidence established that he failed to keep such books with fraudulent intent to conceal his true financial condition, and in contemplation of bankruptcy. His business, since July 1, 1898, has been that of a merchant tailor, doing a very small business, carried on by himself with the assistance of a boy. I think that the evidence tends to show that he omitted to keep regular books of account in order to avoid the trouble of keeping them, rather than with fraudulent intent ty conceal his true financial condition and in contemplation of bankruptcy.</p> <p>3. The substantial ground of objection to« the bankrupt’s discharge in this case is, in substance, that he knowingly and fraudulently made a false oath or account by verifying schedules which did not contain a statement of the goods, fixtures, and materials in the store at 776 Lexington avenue. The bankrupt inserted in his schedules of assets two pairs of shears, valued at $3, and a measure, valued at $3; so that his attention was called to the question whether he should insert the goods, fixtures, and articles at his store. He omitted to insert them on the ground that the merchant tailoring business there conducted, and the goods, fixtures, and materials at the store, wero owned by his wife. The evidence shows that about February, 1895. Max Hirshkind, 'Victor Lowenstein, and Henry Lowenstein were partners in the merchant tailoring business, in Sixth avenue. At that time Henry Lowen-stein purchased the business, and carried it on in Sixth avenue about three months, until the 1st of May, 1895. He then removed to 984 Third avenue, taking with him the stock at the Sixth avenue store. He carried on the merchant tailoring business at Third avenue until about September 1, 1896, at which time he executed and delivered a bill of sale of the business to his father-in-law. The alleged consideration of this bill of sale was $1,000, due for money alleged to have been previously loaned. Hirshkind at that time was suing him upon a note given upon the purchase of the previous business, and Lowenstein stated, in substance, to a man named Sehlessinger, that the bill of sale was made to protect the merchandise creditors and prevent Hirshkind from seizing the merchandise in the store. The business was continued by Henry Lowenstein at Third avenue until about June, 1898, when he left that place of business, and a week or two later opened a small shop at 776 Lexington avenue, where he has since done business. He claims that the business at 776 Lexington avenue is owned and carried on by his wife, but there ⅛ no evidence that the wife ever contributed any capital or haw ever taken any part in the business. There is nothing in the sign or loiter head to indicate that she has any interest in the business. In my ■opinion, the bill of sale executed to the father-in-law in 3.896, and the claim that the business at 776 Lexington avenue is carried on by the wife, were more fraudulent attempts by the bankrupt to put his property out of the reach of his creditors; that the business has been in fact owned and conducted by the bankrupt ever since he made the purchase from Hirshkind; and iliat the good will, goods,' fixtures, and materials at the store in Lexington a.vonue at the time the bankrupt filed his petition in bankruptcy belonged in fact to the bankrupt.</p> <p>The counsel for the bankrupt relies upon the cases of Knapp v. Smith, 27 N. Y. 277, Buckley v. Wells, 33 N. Y. 537, and Smith v. Van Olinda, 48 N. Y. It;!), to support his claim that the business was owned by the bankrupt’s wife. In all these eases the wife did something, or held herself out as doing something, in the business. In this case tlie wife contributed no capital, took no part in the business, and the business was not conducted in her name. There was nothing whatever to Indicate that the wife had any interest in ihe business except that tlie bankrupt now says so. The only question, in my mind, in this case, arises from the trifling value of the assets omitted from the schedules. The bankrupt’s business seems to have dwindled down to al-iñóse nothing before he went into bankruptcy. His store at 776 Lexington avenue is about 10 by 35. He carried no stock of goods. He did repairs, and, when he got orders for clothes, purchased enough to make the suit; and, until he got ready to begin work upon it, put the cloth so purchased in the window to make a little show. The value of the good will of such a, business, of course, is substantially nothing, and I do not suppose that the fixtures and stock on hand, if they had been put in ihe schedules, would have sold for ⅜>50. They probably would not have brought enough to pay tlie expenses of the proceeding, so that probably they would have afforded no dividend to creditors. Under such circumstances I have hesitated to find (.lull the bankrupt’s verification of schedules which omit led assets of such trifling value constituted knowingly and fraudulently making a false oath; but If a man wants to obtain, through the bankruptcy act, a discharge from his debts, he must, in good faith, turn over all his assets to his creditors. T am constrained to believe that the bankrupt’s omission to insert these assets was intentional, and was a mere carrying out. of Ms preconceived plan of hindering, delaying’, and defrauding his creditors by assorting that the business which he carried oh was his wife’s. Upon the whole, in my opinion, tlie bankrupt has knowingly and fraudulently made a false oath or account by verifying schedules in this proceeding which omitted to slate tlie assets used in his business.</p>

In Bankruptcy. On motion for- a discharge and objections thereto. The discharge is opposed upon two- grounds. First, that tbe bankrupt knowingly and fraudulently concealed from bis trustee bis interest in four policies of insurance upon bis life; and, second, that he made a false oath when he verified bis schedules, which stated that he had no policies of insurance or interest therein.

This case comes into this court on a petition to review the decision of the district court rendered on a certificate by the referee in… Held: he was in fact the agent of the Reinhards for the purpose of electing a trustee in their interest, and his object'in offering to vote under authority of these letters of attorney was to choose a trustee, not for the benefit of the creditors, but in the interest of his real principals, the Reinhards, by whom he was employed, — to…

In Bankruptcy. The referee certified questions for the determination of the court, as follows: ■ “These were petitions to review an order denying a petition to reconsider the claim of Charles B. Burleigh, allowed against the separate estate of E. C. Hodges, and modifying the allowance of said claim. The case was submitted on a stipulation of agreed facts.

This cause 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 on certain glass bottles filled with medicinal preparations.

<p>Tariff Duties — Braids.</p> <p>Cotton braids, intended to be manufactured into, shoe laces, though not trimmings, are within Tariff Act 1897, par. 330, imposing a duty of 60 por cent ad valorem on certain cotton manufactures, among whicli are “embroideries, and all trimmings, including braids, edgings, inserting», flouncing», galloons, go rings, and bands”; the intention that the word “including” was used not by way of spedfloation, but by way of addition, being shown by a comparison of the acts of 1897 and 1894, indicating that braids were intentionally taken out of the 45 per cent, paragraph, where they appeared in the act of 1894, and put into the 60 per cent, paragraph of the act of 1897, irrespective of the use to which they may be applied.</p> <p>Lacombo. Circuit Judge, dissenting.</p>

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

<p>Trade-Marks — Descriptive Words — “Celery Compotikd.”</p> <p>The words “Celery Compound,” while descriptive in character, may constitute a trade-mark, and be entitled to protection as such, in connection with the representation of a bead of celery, where it is shown that by long use, not strictly in a descriptive sense, they have acquired a secondary meaning, as identifying the particular preparation of complainant.</p>

<p>Patents — Infringement—Music Boxes.</p> <p>The Riessner patent, No. 569,233, the Brachhausen patent, No. 569,393, and the Brachhausen patent, No. 621,025, each for improvements in automatic musical instruments, held valid, and infringed.</p>

<p>Patents — Ia'fbixgbment—Kntí’B Bdknishbbs.</p> <p>Tile Taber patent, No. 241,750, for an improvement in machines for burnishing knife blades, construed, and, as limited by the proceedings in the patent office, held not infringed by machines made in accordance with the Way patent, No. 293,886.</p>

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

<p>Collision — Delaware River — Barges Sheering.</p> <p>Where the evidence in a suit and cross libel for collision between two barges laden with coal, being towed by a tug, tandem, down the Delaware river, showed that it resulted from the sheering of one or both, which caused the one behind to overtake and run into the other, and that the following vessel used due care to avoid the collision, and was also insufficient to establish such fault or negligence on the part of the forward barge as to render her liable, no damages will be allowed, it being-impossible to determine with any degree of certainty that the sheering of such vessel, which produced the collision, was not due to the action of the currents and her bad steering qnalities, rather than to negligence in her management.</p>

<p>Iu Admiralty.,</p>

<p>1. Admiralty — Unlawful Sealing — Condemnation—Judgment—Res Judíos ta — Liens.</p> <p>Where a vessel was seized and sold in a proceeding in admiralty for unlawful sealing, and due notice of the proceedings was given hy the marshal, the proceedings heing in rem, the decree, affirmatively showing that the court adjudicated all matters litigated hy all parties appearing, adjudged nonappearing parties in default, and condemned the vessel as forfeited to the United States, was res judicata as against a nonappearing lien claimant for supplies, so as to preclude him from claiming a lien on the proceeds of the sale of the vessel.</p> <p>2. Same — Limitation oe Lien — State Statute — Validity—Application.</p> <p>Ballinger’s Ann. Codes & St. § 5953, limiting the enforcement of liens on vessels for supplies to three years from the time the cause of action accrued, is not inapplicable in a suit in admiralty in the United States court, on the ground that the state legislature was without power to pass a law limiting the enforcement of liens on vessels in a federal court.</p> <p>3. Same.</p> <p>Where a vessel had heen condemned and sold in a suit in admiralty in a federal court, and all nonappearing parties had been adjudged in default, and the time limited for an appeal from the decree had expired, a nonappearing lien claimant was not thereafter entitled to intervene and claim a lien on the proceeds of the sale.</p>

<p>1. Jurisdiction or Federal Courts — District or Bringing Suit — Waiver op Objection.</p> <p>Where the requisite diversity of citizenship exists between the parties to give a federal court jurisdiction, the objection that the suit is brought in a district where neither resides is one which may be waived, and, when it has been wailed by a defendant corporation by appearing and voluntarily submitting itself to the jurisdiction of the court, it cannot be raised by a stockholder of such corporation who is subsequently permitted to intervene.</p> <p>⅞ Creditors’ Suit — Jurisdiction op Equity- — Waiver op Objections.</p> <p>In a general creditors’ suit against a corporation whose property is all within the district in which the suit is brought, where the defendant has answered admitting its insolvency, and that it is justly indebted to the complainants in the sums alleged in the bill, and a receiver has been appointed for its property, an intervening stockholder cannot thereafter raise the objection that the suit is not within the jurisdiction of a court of equity because the complainants are merely contract creditors, and especially where it does not appear that the intervener’s stock is of any value, or could he made so by the discharge of the receiver and the dismissal of the suit.</p> <p>8. Corporations — Insolvency—What Constitutes.</p> <p>A corporation which is largely indebted on claims long past due, whose1 only property consists of a gold mine and a plant for operating the same, which are not available for the payment of its debts in the ordinary course of business. and whose officers admit its inability to meet its obligations, must be regarded as insolvent, in' such sense as to entitle its creditors to have its property sold, and the proceeds applied in payment of their claims.</p>

In Equity. On the 1st of May, 1894, one Bray, as trustee for the Oliver heirs, held a valid mortgage on the property in controversy for §1,800, executed by G. N. Bparks and Pamolia. Sparks, his wife, to whom the property then belonged.

<p>1. Municipal Corporations — Special Assessments — Constitutionality.</p> <p>The rule, for making special assessments for street improvements pre-. scribed by Ky. St. §§ 283⅝-28:>⅜ wliich provide tlial such improvements shall “be made at the exclusive cost of the owners of! lots in eacli fourth of a square, to be equally apportioned” according to the number of square feet owned by the parties, respectively, within the abutting- fourth square, or the limits fixed by ordinance when the land is not defined into squares by bounding streets, excludes any inquiry as to special benefits as a condition precedent to the making of such assessments, and is in violation of the fifth and fourteenth amendments to the constitution, of the United States.</p> <p>3.' Same — Eight to Injunction against Illegal Assessment.</p> <p>Where the rule prescribed by statute or ordinance for making special assessments for street improvements is unconstitutional because it excludes inquiry as to special benefits to the property assessed, an owner of such property is not required to prove that the assessment is for an amount in excess of the benefits, or to make a tender of any amount, to entitle him to an injunction restraining the collection of an assessment thereunder.</p>

<p>At Law'. Buie lor judgment for want oí sufficient affidavit of defense.</p>

<p>At Law. Action of ejectment.</p>

<p>,1. Federal Courts — Following State Decisions — Construction op Insurance Contract.</p> <p>Where the construction of a policy of marine insurance depends on questions of general commercial law, the federal courts are not hound hy the decisions of the courts of the state in which the contract was made, but hy those of the supreme court of the United States.2</p> <p>2. Marine Insurance — Construction op Policy.</p> <p>A policy of marine insurance contained the usual memorandum clause, hy which certain enumerated articles, including wire of all kinds and steel, were “warranted hy the assured'free from average, unless general.” It also contained a rider reading: “Free of particular average, hut liable for absolute total loss of a part, if amounting to 5 per cent.” Reid, that the memorandum clause and rider were in pari materia, and, construed together, they exempted the insurer from liability for particular average as to all articles covered hy the policy, whether or not they were within the enumeration of the memorandum.</p> <p>3. Same — Constructive Total Loss.</p> <p>Under the terms of such a policy there can he no recovery for a constructive total loss; nor can there he any claim for an absolute total loss of the entire cargo insured, where a large part of it, transshipped by the insurer after disaster to the vessel, reaches the port of destination in specie, and a substantial portion uninjured.</p> <p>4. Same — Constructive Acceptance op Abandonment — Transshipment by Insurer.</p> <p>Where a marine insurer of a cargo, liable only for an absolute total loss, after a disaster to the vessel which prevented completion of the voyage, and after the salved portion of the cargo had been landed at an intermediate port, in large part uninjured, acting under the sue and labor clause of the policy, transshipped the same to the port of destination, its action cannot he construed as an acceptance ol' abandonment, especially when It had expressly refused to accept such abandonment.</p>

<p>1. New Trial — Power to Grant after Term — Actions against United Status.</p> <p>A circuit court, in exorcising jurisdiction concurrent witli tlie court of claims, under Act March 3, 1887 (24 Stat. 505), is governed by its own rules of procedure, and cannot grant a new trial on a motion made after the expiration of the term at which judgment was rendered.</p> <p>2. Judgments — Amendment after Term — Supplying Finding of Fact.</p> <p>A circuit court has power to amend its record in an action hy a mine pro tunc order made after the term at which the judgment was rendered, supplying a finding of fact which was requested by one of the parlies when the cause was submitted, but was not clearly covered by the findings, made, when such finding is in accordance with the evidence, and contradicts nothing- in the record.</p>

This suit was brought to recover an amount equal to the sum of the amounts specified in certain negotiable bonds issued by the county of Cuyahoga, Ohio, for the purpose of purchasing a site and building an armory thereon in the city of Cleveland. The case was disposed of in the circuit court upon a demurrer to the petition.

Jóel Gr. Tyler was convicted of embezzling funds of a bank in violation of Rev. St. U. S. § 5209. The deposit slip referred to in the opinion was delivered December 13, 1897, and the ledger entry referred to was dated February 8, 1898.

Action by George F. Jennings against Charles W. Smith, as receiver of the Atlantic & Pacific Railway Company. From a judgment of the United Slates circuit court for the Northern division of the Northern district of Illinois, plaintiff brings error. Affirmed.

<p>In Bankruptcy. On application for discharge, and objections thereto.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>J. B. McFarlan, Sr., J. B. McFarlan, Jr., Charles E. J. McFarlan. William W. Melgarían, and James E. McFarlan, constituting a commercial firm or partnership under the name of J. B. McFarlan Carriage Company, the plaintiffs in error, are all citizens of the state of Indiana. Edward C. Fenner, a citizen of Louisiana, and resident of the city of New Orleans, in the Eastern district thereof, who was lately adjudged a bankrupt under the act of congress approved July 1, 1898, in a court of bankruptcy for the Eastern district of Louisiana, and Claude H. Solanas, also a citizen of Louisiana, and resident of the district, who was duly elected as trustee of the bankrupt’s estate, are the defendants in error. Edward C. Fenner had been engaged in business as a merchant in the city of New Orleans, and liad from time to time received goods from the plaintiffs in error under contracts continued in force, in words and figures substantially as follows:</p> <p>“April 9th, 1898.</p> <p>“Terms: We agree to pay for each job at invoice price, in cash, less 5 per cent, discount, as soon as sold, if sold prior to August 1st, 1899; to keep all goods fully insured for the benefit of J. B. McFarlan Carriage Co., as their interest may appear, and to render to said company a statement on the first day of each month of all goods remaining on hand and unsold; and on August 1st, 1899, to buy and pay in cash for all goods remaining on hand and unsold, at invoice price, less 5 per cent, discount. This agreement is made a part of, and subject to the conditions of, an order- of even date herewith given to said J. B, McFarlan Carriage. Co.</p> <p>“[Signed] J. B. McFarlan Carriage Co.,</p> <p>“By O. R. Crutchin.”</p> <p>At the date of the adjudication in bankruptcy and of the appointment of . the trustee a considerable portion of the goods last furnished by the plaintiffs in error to Fenner remained in his possession, unsold, and were surrendered to the trustee as assets of the bankrupt’s estate. The plaintiffs in error made amicable demand o-f the trustee to have the same delivered to them, which being refused, they brought their action in the circuit court on July 5, 1899, against the defendants in error; and after stating their ease they prayed that, after due proceedings, they be declared to be the owners of the property set forth in Exhibit X annexed to their petition, and that it be decreed that the same be surrendered and delivered to thorn, with costs. Exhibit X attached to their petition shows 37 specified'articles, being surreys, phaeto-ns and buggies, alleged to be of the aggregate value of $3,947.50. On November 17, 1899, the trustee answered .to the effect that the contract by w'hich the bankrupt acquired the merchandise sold by the plaintiffs to him, and surrendered by him in the bankruptcy proceedings, was an absolute contract of sale, by which the title passed from the plaintiffs to Fenner, and on the appointment of a trustee passed to the trustee, who is vested -with the title to so much of the property, or the proceeds thereof, as he now has in his possession or under his control; that he holds the property and its proceeds in trust for the mass of the creditors 0⅞ the bankrupt; and that the same is subject to his administration as trustee, and to an ultimate distribution in the settlement of the bankrupt’s estate. There was filed in the suit on January 8, 1900, a paper designated as “Exhibit X,” embracing 28 items of surreys, phaetons, and buggies, with a value, attached to each aggregating the.sum of $3,445. It docs not appear by whom this exhibit was fl'otl. On the liny of iis filing 1hc> caro came on for üial, and the partios by their stipulation in writing waived a jury, and submitted tlieir cause to he tried and decided by the judge, wito, after hearing the pleadings, evidence, and arguments of counsel, announced that: “The court finds the issues of fact in favor of the plaintiff. It ⅛ therefore ordered, adjudged, and decreed that there he judgment in favor of the plaintiff the ,1. B. MeFarlnn Carriage1 Company and against the defendant, Claude II. Solanas, trustee cf the bankrupt, Edward 0. Fenner, with costs, declaring the plaintiff Uie .1. B. MeKarlan Carriage Company to be the owners of file property set forth in Exhibit X, filed herein, as follows,” — setting out the particulars of Exhibit X, as shown in the Exhibit X that had been filed that day, containing 28 items of particular goods, except the extension of the price attached to each Hem. On February 27, 1900, the plaintiffs presented, to the court their motion, in which they referred to the judgment which had been rendered, decreeing them to be the owners of the property sued for in this action, showing that llie judgment is now final, and showing further that pending the trial of rhe canse the defendant trustee had sold a. part of the goods forming the subject-matter of the suit, and received therefor the sum of $819.50. which sum stands in place of the property adjudged to belong to the movers, and that, the defendant trustee had turned over and delivered to the movers the property adjudged to be theirs and unsold by him, but that he had refused, and still refuses, to pay over and deliver to the movers the sum received by him from the sale made pending this litigation, and praying for an order that the defendant trustee, Claude H. Solanas, show cause on the 10th of March, 1900, why he should not pay over forthwith to the movers the sum of $819.50. To this motion or rule the defendant trustee on March 10. 1900, answered that in his capacity of trustee he holds the sum of $819.39, subject to the orders of the court, the amount representing the proceeds of the goods of the plaintiffs in rule held by the respondent pending the adjudication by the court of the rights of all parties;' that the plaintiffs in rule are liable1 to contribute their proportion of the insurance premiums upon the property insured after the surrender of Fenner in bankruptcy, and that said proportion of insurance is $37.71; that the plaintiffs in rule are liable to contribute iheir proportion of the taxes npon the merchandise and stock in trade of the bankrupt; that the whole amount of the taxes was ,$283, and the assessment for 1898 and 1899 upon, the merchandise and stock in trade of the bankrupt was $7,000, the amount of the plaintiffs’ goods retained at the time of the surrender in bankruptcy being $2,007.50. The respondent shows that of the amount of the taxes, $07.30 ⅛ for the taxes of 1898. 1-Ie submits to the court the question whether the plaintiffs in rule are liable to contribute to the expense of the administration of the bankrupt’s estate, including commissions of the referee and of the trustee. lie shows further that the plaintiffs in rule, as third persons whose goods were on the leased premises with their consent at the time of the surrender in bankruptcy, are liable to com-iributo towards the payment of the rent, and that the amount of that liability can be determined only by ascertaining the rank of the privileged creditors appearing upon the account filed by the respondent, and that that ascertainment can be had only after due notice to all parties, and a hearing of their respective claims in coticursu. “Wherefore lie prays that ibis rale he dismissed, that a hearing be had to determine the respective rights of the privileged creditors appearing upon the account heretofore filed by the respondent. and for costs and general relief. Thereupon, on the same day, the motion and the answer came on for hearing, and were argued and submitted, when the court took time to consider, and on March 2t. 1900, rendered its judgment as follows: “The rub1 herein taken on February 27, 1900, by plaintiff on the trustee of 13. O. Fenner, bankrupt, for 1 lie payment of $819.50, having been argued by counsel and submitted, and the court haying duly considered the same, it is ordered that the said rule be dismissed; reserving to the plaintiff the right, if it be °so advised, to institute proceedings for its protection in the bankruptcy court of this district.”</p> <p>The plaintiffs duly took and perfected their writ of error, and have assigned: (1) The court erred in holding that the bankrupt court was vested with power and authority to control and distribute the fund mentioned in plaintiffs’ rule. (2) The court erred in holding that the creditors of Edward C. Fenner, a bankrupt, had or might have rights or privileges upon the fund, the subject-matter of the rule herein, to be enforced or adjusted, at the instance of the trustee of said bankrupt, in the bankruptcy court,'or by said court. (3) The court erred in dismissing said rule, instead of making same absolute. (4) The court erred in holding that the plaintiffs were not _ entitled to judgment making absolute the rule taken by them on February' 27, 1900.</p>

In Bankruptcy. In the matter of the petition of Nannie J. Sling-luff, wife of the bankrupt, for an order requiring the trustees in bankruptcy to deliver to her a policy of life insurance. See 105 Fed. 502.

<p>1. Customs Duties — Entry—Undervaluation—Additional Duties.</p> <p>Section 7 of the customs administrative act, as amended July 24, 1897 (30 Stat. 211), provides that, where the appraised value of dutiable imports exceeds the value declared in the entry, there shall be additional duties of 1 per cent, on the total appraised value for each 1 per cent, that the appraised value exceeds such declared value, not exceeding 50 per cent of the appraised value; that such additional duties shall not be remitted, nor payment thereof avoided, except in cases arising from a manifest clerical error; and that, if the appraised value exceeds such declared value hy more than 50 per cent., except when arising from a manifest clerical error, the entry shall be presumptively fraudulent, and, unless the presumption is overcome, the merchandise shall be forfeited. Held, that the additional duties are payable, except in case of clerical error, irrespective of any question of fraudulent undervaluation on the part of the importer.</p> <p>3. Judgments — Change after Term.</p> <p>After the term at which a judgment is entered, the court pronouncing it cannot vacate it because entered “erroneously, and without authority of law,” unless at such term steps are taken towards its vacation.</p>

<p>Actions against Defendant, as Collector of Internal Revenue, to Recover Stamp Taxes Paid.</p>

Appeal and Cross Appeal from the Circuit Court of the United States for the Southern Division of the Northern District of Ulinois. These appeals are from the decree in a suit for injunction against infringement of trade-mark No. 29,775, brought by J. A. Mitchell, C. E. Mitchell, and Henry L. Haskell, co-partners under the name of Ludington Novelty Works, against Edgar L. Williams and Matilda J. Williams, husband and wife, and co-partners under the name of Archarena Company.

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

<p>Patents — Suit fob Imírtngk.mknt — Pkkliminaky Injunction.</p> <p>Where the questions involved in a suit for infringement are difficult and doubtful, and the rights of complainant can be protected by requiring Uie defendant to give a bond for the payment of any damages that may be recovered, the court will not grant a preliminary injunction if such a bond is given, but will leave such questions to be determined after a full hearing.</p>

<p>Patents — Infringement—Fountain Inkstands.</p> <p>The Guinter patent, No. 428,153, for a fountain inkstand, was not anticipated, and is valid. But the device shown, which is an inkwell having a dip tube with a funnel-shaped top, passing through an inverted, cup-shaped, flexible rubber diaphragm, the compression of which, by pressing the tube downward with the pen, causes the ink to rise in the tube, is a new combination of old parts, the distinguishing feature being that, unlike former devices, the flexible diaphragm is not secured to the perforated metal plate on which it rests, but sits loosely upon it, so that it can be raised to permit the filling of the well through the tube without removal of the parts, and also permits the escape of air, which prevents'the ink from overflowing froto expansion when in a heated room; hence the . claims are limited to such construction, and are not infringed by an .inkstand which lacks that feature.</p>

<p>1. Patents — Prior CTsk — Evidenck to Estabi.isii.</p> <p>Prior use to defeat a patent must be established beyond a reasonable cioubx, but clear and satisfactory proof that a single one of the arricies covered by the, parent, which is produced in court and identified, was loft by the inventor at a store to he sold, more than two years before his application for the patent, is sufficient.</p> <p>•2. 'IV \gox Jack.</p> <p>The Emons patent, No. 463,599, for a wagon jack, held void, on the ground xliaL the article covered thereby was invented and placed on sale by the inventor more than two years before the application.</p>

<p>Patents — Infringement—Folding Paper Boxes.</p> <p>The Wilson patent, No. 280,300, for paper boxes and lid of boxes, IvHA valid and infringed.</p>

<p>1. Patent —Vatjdity—Infrtngem knt.</p> <p>Claim 5 of letters patent No. 387,318, granted to Robert P. Scott, August 7, 1888, for improvements in machines for hulling and separating green peas, sustained, but held, not to have been infringed.</p> <p>3. Same.</p> <p>Letters patent No. 421,241, granted to Charles P. Chisholm and John A. Chisholm, February 11, 1890, for improvements in the method of hulling green peas, sustained, and held to have been infringed as to both of its claims.</p> <p>3. Same.</p> <p>Claim 2 of letters patent No. 490,397, granted to Robert P. Scott, June IS, .1893, for a process of gathering and hulling green peas from the vines, sustained, and held to have been infringed.</p> <p>4. Same.</p> <p>Claims 1, 2, 8, 4, 5 and 6 of letters patent No. 500,290, granted to Robert P. Scott, Charles P. Chisholm and John A. Chisholm, June 27, J8133, for improvements in pea-hulling machines, sustained, and held to have been infringed.</p> <p>5. Same — PnroR Use.</p> <p>An unexpected, insignificant and accidental use of a process, not appreciated. or understood at the time, cannot operate to anticipate or invalidate a patent subsequently granted for such process.</p> <p>6. Sam ¡« — Construction.</p> <p>Patent No. 421,241 does not cover the mere function or result of the operation of mechanical apparatus, blit ihe Invention of a new and specific application of the forces of nature for the advancement of the art of hulling green peas, and is for a true process.</p> <p>7. Equity — MunTn*'AitiousNKSS.</p> <p>Whether the objection of misjoinder or multifariousness can or cannot properly be taken by way of answer, the court sua sponte may give effect to it: whenever that course is deemed conducive to the due and convenient administration of justice.</p> <p>8. Patent — Suit fob In eringe meet.</p> <p>In a suit in equity for the infringement of a patent an exclusive licensee properly may for the protection of his own interests, and in many cases must, be joined with the legal owner of the patent as co-eoinplahinnt; and generally, where the legal title to a patent is vested solely in one person and a suit in equity is brought for infringement, socking an injunction and an account, the legal owner and those possessing equitable rights which may be affected by the litigation, should join as complainants.</p> <p>9. Same — Multifabtousnkss.</p> <p>The bill, having averred that all the inventions covered by the four patents in suit were capable of conjoint use in the same structure, and that the defendant so used the same in the infringements complained of, was not demurrable on the ground of multifariousness by reason of the joinder of patents; and the complainants having proved infringement b.v the conjoint use of inventions covered by three of the patents, although failing to prove infringement of the remaining patent in suit, are entitled to relief.</p> <p>10. Same — Jibs joinder of Parties.</p> <p>While the joinder of patent, owners as complainants, where some of them have no legal ownership of or legal interest in some of the patents sued on, is a course which generally should not be encouraged, and while it appears that one of the complainants is the sole owner of two of the patents in suit, and the three complainants are the Joint owners or owners in common of the remaining two, the objection of misjoinder of parties cannot, on the facts disclosed in this case, be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>1. Patents — Expiration—Prior Foreign Patent.</p> <p>Where any of ihe claims of a United States imtont include any substantive part of the invention, on which an independenc claim might be founded, shown by a prior foreign patent, the former expires with the expiration of the latter, under Rev. St. § 4887; and, when the foreign patent contains no formal claims, it will be presumed that the law of tlio country does not require them, and the specification and drawings will be looked to for the purpose of determining the matter of the invention, and whether it would sustain, any of the claims of the American patent.</p> <p>2. Same — Telephone Exchange System.</p> <p>The Eldred patent, No. 309,714, for improvements in telephone exchange systems and apparatus, issued in 188!, expired in 1S87 with the expiration, of the prior Italian patent issued to the same patentee in 1884 for a term of three years.</p>

<p>Patents — Suits fob Infringement — Service on Nonresident Defendant.</p> <p>Under Act March 3,' 1897 (29 Stat. 693),. which authorizes a suit for infringement to be brought in any district in which the defendant shall have committed acts of infringement and have a regular and established place of business, although not a resident of such district, service in such case to be made “upon the agent or agents engaged in conducting such business in the district in which suit is brought,” a service of process in such a suit against a nonresident corporation, upon one shown only to be the designated agent of the corporation under a state statute, is not sufficient to give the court jurisdiction.</p>

<p>1. Combination Patent — Construction.</p> <p>Where the claim for a patent is for a combination, it must be for an operative combination; and if an element essential to make it operative is shown and described in the specifics tion, bnt is omitted in the claim, it nnist be read into the claim.</p> <p>2. Same — Infringement.</p> <p>In order to constitute an infringement of a combination patent, there must be found in the infringing device all the elements contained in the pa tent alleged to be infringed, or their fair legal equivalents.</p> <p>3. Same — Patentability.</p> <p>A combination, to be patentable, must produce a single new and useful result, or an old result in a bettor and cheaper manna', as the product of tlie combination; and where the combination produces an aggregate of two or more results, each the complete result of one of the combined elements, it does not constitute a patentable combination.</p> <p>4. Same-Charging Furnaces.</p> <p>Tiie Wellman patent. No. 408,352, having the same elements as the Wellman patent, No. 394,119, each for an apparatus for charging and drawing furnaces, with the supera deled means of rotating the lifting arm and grappling device, is a patent for an aggregation, and not for a patentable combination.</p> <p>5. Same.</p> <p>The Wellman patent, No. 394,419, for an apparatus for charging anil drawing furnaces, is not infringed, as to the first and second claims, by a sliding frame, in defendant’s device mounted upon a tilting frame, with a charging arm having no longitudinal movement within the tilting frame, which is in no sense the equivalent of the grappling levers or tongs of the complainant’s device.</p>

<p>Patents — Charging Furnaces — Infringement.</p> <p>Wellman patent, No. 421,797, relating to improved methods of charging furnaces, being so broad as to cover every conceivable machine for charging open-hearth furnaces using a lifting arm or bar, covers a principle, and does not specifically describe a mechanism, and is not infringed .by the mechanism used by the defendant.</p>

<p>In Equity. Suit for infringement of patent. On plea of limitation.</p>

<p>Patekts — Suits For Iuerikgement — Practice.</p> <p>A circuit court will not entertain a motion by defendant to dismiss a bill for infringement, filed before a hearing, and based on affidavits relating to matters of fact going to the validity of the patent pr the question of infringement.</p>

<p>In Admiralty. Suit for limitation oí liability. On motion by petitioner.</p>

<p>1. Master and Servant — Shipping—Stevedore—Death—Contributory Negligence — Libel.</p> <p>Libelant’s decedent, a stevedore, went onto a hatch of a vessel to take out the middle fore and after beams preparatory to loading. Tie fastened winch chains to the middle fore and after, and ordered the winchman to proceed. The beam stuck, and decedent, without moving from his position on tiie adjoining- hatch cover, ordered the winchman to put on more steam. The beam came out with a jump, and the fore and after beam supporting- the hatch cover on which decedent was standing slipped, and precipitated the hatch cover, with decedent, to the bottom of the hold, killing- him. Held, that decedent, in remaining on the hatch cover after seeing that the fore and after stuck, was guilty of such contributory negligence ihat his widow could not recover for Ms death.</p> <p>S. Same — Negligence—Proximate Cause.</p> <p>That the beam had not been properly put in at the port of clearance did not render the shipowner liable, since the proximate cause of decedent’s fall was, not that the beam was not properly put in, but that in taking the structure apart decedent stood in a place of danger, and applied an extra strain, of the steam winch, which was calculated to make the structure dangerous to stand on.</p> <p>3. Same — Admiralty Rule.</p> <p>The rule that a court of admiralty shall give or withhold damages on enlarged principles of justice and equity in an action for injuries, and is not hound- to withhold damages where the party injured is himself in fault, does not authorize a judgment against a vessel for the death of a stevedore, who knowingly remained on a hatch after a beam supporting an adjoining hatch stuck while being taken out by a steam winch, and ordered additional steam applied to force out the beam.</p>

<p>Salvase — Evidence—Compensation.</p> <p>A steamer was disabled about 14 miles from a harbor, and about 4 miles from the shore, having a hole 6 by 12 inches in size, and about 6' inches above the water line, and had stopped for temporary repairs. The water was about 3 feet deep in her engine room, but her fires were not out, and the sea was smooth. A steamer with passengers and freight towed her to 'a neighboring port, the time consumed being about 3½ hours, where temporary repairs were made. The repairs were of such a character as to render the vessel free from leakage, and on the next day the injured vessel was taken in tow for San Francisco, using her own steam, and arriving there 54 hours after she was first taken in tow. The value of the rescued vessel, with her cargo, was §>24,000, and that of the rescuing vessel was $08,000. The rescuing vessel was detained about 14 hours. Held, that there was no risk to the salvors or the vessel employed by them, and, ¿s the rescued vessel was not at any time in serious danger, salvage to the amount of $1,000 would be allowed.</p>

<p>1. Patent fob Land — Vacation—Government’a Action — Limitations.</p> <p>Tbe act of March 3, 189-1 (26 .Stat. 3099), provides that suits by the United States to vacate and annul patents for land issued before its passage shall only be brought within five years from its passage, and hence, no suit having been brought within such time to vacate and annul a patent issued before its passage, the government is precluded from taking action thereafter.1</p> <p>2. Same — Action -by Private Individual — Bill of Complaint- -Requisites.</p> <p>A bill of complaint by a private individual to vacate and annul a patent for land issued by the government cannot be maintained if it does not show that complainant is or was entitled thereto, though it may appear that respondent was not, since the mere cancellation of a patent, with reversion to the government, rests solely with the latter.</p>

In Equity. The bill in this case was filed by the St. Paul, Minneapolis & Manitoba Kail-way Company to have adjudicated its title to all the telegraph lines and property situated upon the line of its railway.

<p>Corporations — Sale i;y Son® Owner ov Stock — Estoppui, to Assert Rights as Creditor.</p> <p>Defendant owned all the capital stock of a newspaper and printing corporation, and managed its business as his own. The capital of the company was impaired, and, to meet the requirements of the business, defendant put in $3,000 in money. This amount was for a time carried on ÍLe books of the company as a credit in his individual account, but was after-wards transferred, with bis knowledge, into the profit and loss account. Subsequently defendant sold the company, as a property, to another, to whom he transferred all the stock. The purchaser knew the facts in regard to the S3,000 and the recitals of ike books, and nothing was said by defendant as to bis being a creditor of the company for that amount. Held, that he must he regarded as having put the amount into the business of Uio company to make good to that extent its impaired capital, and not as a loan, but iliat, if considered as a loan, being' the sole owner of the property and business, and having sold the same without any reservation, and received payment therefor, he thereby transferred all his rights therein, both as a stockholder and creditor, and was estopped to assert the rights of a creditor as against the purchaser, who bought in reliance on the recitals of the books, which constituted a virtual representation by defendant that he was not a creditor.</p>

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

In Equity. On petition of the Charleston & Western Carolina Railway Company for confirmation of its title to certain property conveyed to it by the original parties to the suit during its pendency.

in Equity. Suit against two railroad companies to enjoin the maintenance of a schedule of joint rates on interstate shipments, alleged to be unjust and excessive.

<p>1. Municipal Corporations — Special Assessments cok Improvements — Constitutionality op Statute.</p> <p>The provisions of Acts 23d Gen. Asscm. Iowa, c. 14, § 10, relating to special assessments for street improvements, which require the city council to ascertain the entire cost of the Improvement, and what portion of such cost may be assessable on adjacent property, and to assess such portion upon such property “as provided by law or by ordinance of such city,” is not in violation of the fourteenth amendment to the federal constitution, as requiring the assessment of the total cost of the improvement on abutting property by tlxe front-foot rule, but confers power on the council to levy the assessment solely with reference to the benefit to the property taxed.</p> <p>2. Same — Improvement Bonds — 'Validity.</p> <p>Bonds issued by a city to obtain the money with which to pay in the first instance for street improvements, where the city has sold such bonds for full value, and made the improvements with the proceeds, are not void merely because the method provided by statute or ordinance for assessing the cost of the improvements against abutting property is illegal.</p> <p>3. Same — Suit on Bonds — Effect of Consolidation of Cities under Iowa Statute. «</p> <p>Code Iowa, §§ 612-614, relating to the annexation of contiguous cities and towns, provide that the indebtedness of the respective cities existing at the date of annexation shall remain the debt of the city creating it, and make it the duty of the council of the city as it exists after annexation to provide for the payment of such indebtedness by the levy of taxes upon the property within the limits of the former city which created the debt. Section 614 further provides that “suits to enforce claims or demands existing at the time of annexation against the city or town annexed may be prosecuted or brought against the city or town to which annexation is made and Judgments obtained shall be paid as hereinbefore provided.” Held, that such provision does not authorize the recovery of a judgment at law against the consolidated city by such a suit, and since, in -the federal courts, such a judgment must precede the issuance of a writ of mandamus, the remedy of a holder of bonds issued by a city which has since been annexed to another, and has ceased to have officers of its own on whom service can be made, where the jurisdiction of a federal court is invoked, is by a suit in equity against the city to which the annexation was made, which is, in effect, made a trustee for the bondholder, and charged with the duty of collecting the amount adjudged to be due him.</p> <p>4. Equity Pleading — Multifariousness.</p> <p>A bill is not multifarious because it seeks to enforce two series of bonds, both owned by the complainant and issued by the same city, to cover the cost of the same improvement; the only difference being that payment of one series is to be provided for by a general tax, and the other by special assessments.</p> <p>6. Municipal Corporations — Suit on Bonds — Parties.</p> <p>In a suit to enforce collection of improvement bonds issued by a city, which the city is required by statute to pay by means of special assessments. against abutting property, the owners of such property are not necessary parties defendant.</p> <p>6. Judgment — -Res Judicata — Persons Concluded.</p> <p>A decree in a suit by a property owner against a city holding that a contract for improvement of a street was illegally let, and special assessments levied to pay the cost of the improvement void, is not a bar to a subsequent suit against the city by a holder of its bonds issued to pay the cost of the improvement in the first instance, who was not a party to the first suit, and especially where the decision therein did not determine that no valid assessment could be made for the improvement.</p>

<p>1. Municipal Corporations — Improvement Bonds — Suit to Enforce Trust.</p> <p>Under Acts 20th Gen. Assem. Iowa, e. 20, which authorizes cities to improve streets and highways, to impose a special tax on abutting property to pay the cost of the improvement, and to issue bonds and sell the same to raise the money to pay for the improvement in the first instance, and which declares that the special assessments, when collected, shall constitute a sinking fund, to be used only in paying for the particular improvement for which they were levied, a city which has issued such bonds becomes a trustee charged with the duty of levying, collecting, and properly applying such assessments on the appropriate bonds, and equity has jurisdiction of a suit by a holder of such bonds to require an accounting in respect to such trust and for the enforcement of the same.</p> <p>2. Equity — Demurrer for Want of Necessary Parties.</p> <p>A bill cannot be held defective on demurrer for want of necessary parties, where it does not appear from the facts disclosed therein that the presence of other parties is necessary to the determination of the complainants’ rights, or that there are others whose interests will be injuriously affected by the granting of the relief sought.</p> <p>3. Same — Misjoinder of Causes of Action.</p> <p>A bill which seeks an accounting from a city in respect to a trust fund, and also to hold the city treasurer and the sureties on his bond liable for a misappropriation of such fund, is demurrable for misjoinder of causes of action.</p>

<p>1. Mandamus — Against Officers of Private Corporation — Compelling Transfer of Stock.</p> <p>Mandamus is an appropriate remedy, both at common law and under Code Iowa 1897, §* 4341, to compel the president and secretary of a private corporation to issue certificates of stock in such corporation, and deliver them to plaintiff, and to transfer the same to plaintiff’s name on the books of the corporation where he has become the legal owner of the stock by a purchase of the same at a sale on execution issued on a judgment against the former owner.</p> <p>3. Execution — Sale of Corporate Stock — Iowa Statute.</p> <p>Under the Iowa statute, as construed by the supreme court of the state, stock in a corporation which stands on the books in the name of a judgment debtor may be levied upon and sold under an execution issued against him, although the creditor has actual notice that the stock has been sold by the debtor to a third person who is in fact the owner.</p> <p>8. Federal Courts — Power to Issue Writ of Mandamus — Enforcement of Judgment.</p> <p>When the marshal has sold stock in a private corporation under an execution issued on a valid judgment rendered by a federal court against the owner, and the officers of the corporation refuse to issue a certificate for such stock to the purchaser, or to transfer the same to his name on the books, the court has authority to compel such action by a writ of mandamus, which in such case is a process in execution necessary to make the sale effective, and the proceeding therefor ancillary to the original suit.</p>

Action at law by tfie United States to recover back the amount of a claim allowed and paid to defendant as an army officer. On demurrer to petition.

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

<p>1. United States Marshals — Suit for Fees — Review of Findings on Appeal.</p> <p>The findings of a district court in a suit by a marshal against the United States to recover fees, brought under Act March 3, 18S7 (24 Stat. 505), as to the correctness of the fees charged, will he held conclusive on appeal, in the absence of cleár an'd unequivocal proof of mistake.</p> <p>2. Same — Mileage—Construction of Statute.</p> <p>The provision of the sundry civil appropriation act of March 3, 1893 (27 Stat. 609), that “and hereafter no part of any money appropriated to pay any fees to the United States commissioners, marshals or clerks shall be used” in the payment of fees in internal revenue prosecutions, except in certain cases, and the following clause, requiring persons arrested to be taken before the' nearest officer for hearing, and providing that “no mileage shall be allowed any officer violating- the provisions hereof,” was not merely a proviso restricting payments from the appropriation therein made, but was general legislation, furnishing rules for the government of the officers therein named until repealed; and a marshal who fails to take a prisoner before the nearest judicial officer for hearing violates its provisions, and is not entitled to mileage, notwithstanding the commissioner issuing the warrant has failed to comply with the requirement of the act by attaching thereto a certified copy of the complaint. The provision of the statute is absolute, and the courts are not authorized to ingraft exceptions upon it.</p>

<p>1. View by Jury — Mill in Operation.</p> <p>In an action for injury to one enqiloyed' in a sawmill as off-bearer at a saw, it is not error to permit a view by tbe jury of tbe place of the accident while the mill is being operated in the usual manner; the question being whether the saw carriage was started towards the saw before the hooks were removed from the cant, and the operation of the mill not contributing anything to the determination of these questions.</p> <p>2. Employment in Mill — Starting of Saw Carriage — Notice.</p> <p>There is no necessity of a signal being given to an off-bearer in a sawmill of the starting of the saw carriage, where it is uniformly started as soon as the -hooks are removed from the cants, and the carriage has been so operated hundreds of times during the few days he has worked at it.</p> <p>3. Injury to Employe — Instructions—Habitual Negligence.</p> <p>Instructions as to a fellow servant of plaintiff being an habitually careless man, given on return of the jury for further instructions, cannot be complained of on the ground that the word “habitually” had a tendency to impress the jury that there must have been a constant repetition of negligent acts to make the master liable for his negligence, where the allegation of th.e complaint was that he was habitually negligent, and the word was used in the same way in the general instructions without objection, and was constantly used during the trial by the attorneys on both sides to describe what was claimed to be his negligent character.</p> <p>4. Fellow Servants — Negi,went Character — Notice to Masteil •</p> <p>A master cannot be charged with knowledge of the negligent character of a fellow servant of the injured employe! by evidence that five years before the accident a person had been injured through his negligence, and that on three other occasions during the live years persons working with him had come near being injured.</p>

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

<p>Bankruptcy — Partnership—Jurisdiction over Estate op Partner.</p> <p>Under Bankr. Act 1898, § S, the adjudication of a partnership as a ■bankrupt draws to the court of bankruptcy for administration the individual estates of the partners, though they are not adjudged bankrupts individually; and such court may require an assignee for the benefit of creditors of one of the partners to surrender the assigned property to the trustee of the partnership, by a summary order, since such assignee does not hold adversely, but in the right of his assignor.</p>

<p>In Bankruptcy.</p>

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

<p>Patents — Suits for Infringement — Pleading.</p> <p>Unless under exceptional circumstances, a complainant in a suit ior infringement will not be required to specify in bis bill the particular claims of the patent relied on.1</p>

<p>1. Shuting--Damage to Cargo-Perils of the Sea.</p> <p>Where the excessive violence of the sea is the efficient cause of the shifting of cargo, causing breakage and leakage, by which other portions of the cargo are damaged, without which the damage would not have occurred, it is the proximate cause of such damage; and whether it constitutes a peril of the sea, within the exception in the hills of lading, is a question of fact, to be determined upon the circumstances of each case, depending upon whether a seaworthy vessel, properly trimmed and with the cargo properly stowed, would ordinarily go through such seas without material injury to its cargo.2</p> <p>S. Same — Action for Damages — Burden of Proof.</p> <p>The burden rests upon the carrier to prove that damage to cargo; occurring after its receipt and before its delivery, was due to a peril of the sea, within the exemption contained in its bills of lading.</p> <p>3. Same — Evidence.</p> <p>Iron drums of glycerine were siowe.d in between-decks of a steamship, one tier high. A platform was built over them, and heavy bales of rags, extending nearly to the deck beams, were stowed over them. According' to the testimony of all who observed the manner of the stowage of the cargo in between-decks, it was well secured and protected. When the vessel was a few days out it was found that the dunnage between some of the drums had worked loose, and it was replaced. On arrival in New York it was found that some of the drums had shifted from their original positions, and the glycerine had leaked on the cargo. The weight of testimony was decidedly to the effect that not only was the between-deeks the proper place to carry the drums, but a proper place in respect to the distribution of the ballast. The evidence showed that, while the gales were not heavy, they came from different quarters, making cross seas of great violence, and the rolling and pitching of the vessel was excessive. Much of the time the crew could not lie down or sit down, and no meals were- served. ' Held to show that the steamship was properly trimmed and the cargo was properly stowed, and that the damage to it in crossing the Atlantic was fairly attributable to a peril of the sea.</p>

<p>1. Shipping — Injury to Carso from: Leakage — Negligent Management of the Ship.</p> <p>The ballast tank of an ocean steamer sprung a leak during a voyage, and the water accumulated in the hold above in sufficient quantity to damage the cargo stowed therein. The leak was known to the engineer and carpenter, who failed to report it to the chief oifieer, to give it a proper examination, or to use. the pumps with sufficient frequency to prevent the accumulation of water in the hold. The pump was sufficient, and the proper use of it would have prevented injury to*the cargo. Held, that such negligence was the direct cause of the injury, and constituted negligence in the “management of the ship.” for which the carrier was exempted f ropa liability by section 3 of the ITarter act.</p> <p>2. Same — Evidence op Unseaworthiness — Breaking op Rivets.</p> <p>The steamer Ontario encountered heavy weather in crossing the Atlantic, during which the seams of the ballast tank, which was constructed of iron plates riveted together, were sprung, and two rivets were lost, permitting leakage into the hold above, by which a portion of the cargo stowed therein was injured. The ship had been surveyed, and her tanks tested, but two months prior to the voyage, and had been given a eertifi-cate of classification in the highest class. Proper inspection had been made before entering on the voyage, and ihe tanks tested by pressure, and found tight. In the opinion of all the officers, who were called as witnesses by libelant, the leak was caused by the straining of the ship in the heavy weather during the voyage, and there was no evidence tending to contradict such opinion, or to show that the rivets lost were in any way defective in material or workmanship. Held, that mere inequality in the strength of the rivets was not evidence of defects in the two that were lost which rendered the vessel unseaworthy at the commencement of the voyage, but the leakage was properly attributable to excepted perils of the sea.</p> <p>3. Sami-; — Exception in Bilí' op Ladino.</p> <p>Tinder the facts shown, the shipowners would also be exonerated from liability for injury to the (cargo under a provision of the bill of lading that they should not be accountable for the unseaworthiness of the vessel at the commencement of the voyage, provided all reasonable means had been taken to provide against such unseaworthiness.</p>

■. Appeal from the District Court of the United States for the District of Massachusetts. ¡ In Admiralty. Held: the tug could have done nothing but hold the barge by the hawser and by steam power; for the tug’s large anchor could not then have been picked up, the small anchor would not have held, and to make fast either to the Indian Eidge or to the St. Nicholas, even if possible, would have been manifestly unwise.

<p>1. Jurisdiction of Federal Courts — Suits by Foreign State.</p> <p>A suit in equity to set aside an award of arbitrators may be maintained in a court of the United States by a foreign state against a corporation of the state in which the suit is brought, found and served within tbe district.</p> <p>2. Arbitration and Award — Construction op Agreement of Submission— Majority Award.</p> <p>The government of the republic of Colombia granted a concession to a citizen "of the United States to construct and operate a railroad in that country, and 'sncb concession was, with the consent of the government, assigned to a corporation of West Virginia, which proceeded to construct and' equip a portion of the road. A controversy having arisen, the government sought to revoke the concession, and the maiter became a subject of diplomatic correspondence between the Colombian government and the state department of the United States. The Colombian congress subsequently passed an act authorizing the government to enter into an agreement with the company for an equitable adjustment of the differences between them, conditioned upon the surrender by the company of its concession, and the delivery of all its road and property to the government. In accordance with such act, an agreement for settlement and arbitration was entered into, hy which ihe company surrendered its franchises and property on receipt of a cash payment of $209,000, and a commission was created, composed of three members; one appointed by each of the parties, and the third selected by the secretary of state of ihe United Slates and the Colombian minister at Washington, acting jointly. The commission was given power to regulate its own procedure, and was required to determine the amount of just indemnity to which the company was entitled for the works and labors executed during the time the enterprise had been in its charge, its award to be final. The commission was given extensive powers, to inspect the property, take testimony, and examine all the books and records of the company. Iidd, that under such circumstances, the matter being in the nature of a public controversy, and the commission having been appointed in pursuance of a public law, for the expressed purpose of making an equitable adjustment of the matters in dispute, and in view of the manner of selection of the third member, the articles of submission could not be construed, in the absence of an express provision therefor, to require a unanimous decision in order to render the award valid, but that, the commission having unanimously agreed that all matters should bo determined by a majority vote, an award so made, upon matters heard and considered by the entire commission, was binding on the parties.</p> <p>S. Same--Validity of Award — Attempted Resignation of Arbitrator.</p> <p>The Anal sessions of the commission were hold in New York. After all the testimony had been taken, and all the matters in controversy had been argued.by the parties and considered by the commission, and a final vote thereon was about to be taken, and after a. number of the items of the award had been agreed upon, some unanimously and some by a majoriU vote, the member of the commission apnointed by the Colombian government wrote a letter to his government resigning his position. He delivered a copy of such letter to his colleagues, and refused to take any further part in the proceedings. There was not sufficient time remaining before the award was required to be made by the articles of submission to permit of ihe vacancy being filled in the manner therein provided. Edd, that such resignation, which was not in fact shown to have ever been forwarded to, or accepted by. his government, did not of itself cré-ale a vacancy, and would not be given effect to terminate the existence of the commission, and render nugatory its award, made on the same day, by the concurring votes of the other members.</p> <p><5. Same — Scope of Submission.</p> <p>The scope of the submission, as to the matters to be considered and included in the award, was a matter to be determined by the arbitrators, and the presumption is in favor of the correctness of their determination; to impeach their award, it must be clearly shown that they exceeded the powers gránted. i</p> <p>5. Same — Construction of Articles of Submission — Meaning- of Foreign Words.</p> <p>Where articles of submission to arbitration are in a foreign language, and contain technical terms, the arbitrators may properly receive expert testimony as to the meaning of such terms when translated.</p> <p>& Same — Scope of Submission.</p> <p>The articles of submission provided that the company should receive a “.lust indemnity” for the works and labors connected with the railway enterprise, to be determined by the commission, and it was given authority to examine the books and accounts of the company, and all documents which might be submitted by the parties, and also to appraise the structures, works, and materials. Prior to such agreement, the company had refused to settle on the basis of the actual cost of the physical construction of the road, and the government had offered in settlement a sum considerably in excess of such valuation as subsequently made by the commission, and as to which there was no controversy. Held, that the articles of submission, agreed to under such circumstances, in the absence of express provision to the contrary, must be construed to authorize the commission to take into consideration, in determining the just indemnity to be awarded the company, the other outlays made by it in the prosecution of the enterprise, in addition to the cost of the physical structures delivered to the government, such as the salaries paid its officers, its office and traveling expenses, and the amount paid by it to the original grantee for the concession, and that an award- covering such items should not be set aside in the absence of any evidence to impeach the good faith of the commissioners.</p> <p>7. Same — Allowance of'Interest.</p> <p>The articles, however, having made no provision for the allowance of interest, and the company having been in possession of the road and receiving its revenues .up to the time of the settlement, the allowance of interest on any of the expenditures made by the company was not within the scope of the submission; but the erroneous allowance of such interest did not vitiate the award as a whole, the items being separately specified, so as to be readily separable.</p> <p>¾. Same — Allowance of Costs — Attorney’s Fees.</p> <p>A provision in the articles of submission for payment of the expenses of the commission, and áuthorizing a finding by the award whether they should be paid by one or both the parties, did not authorize the commission to allow a fee to the attorney for the company as costs, and direct its payment by the other party.</p>

In Equity. Suit for injunction. The allegations in the bill are: That the complainant is a railroad corporation existing under the laws of the slate of Missouri, owning a line of railroad, and operating it as a common carrier of passengers and freight, from Kansas City, in the state of Missouri, to Ogden, on the line dividing the states of Arkansas and Texas.

<p>1. Mechanic's Ltrw — -Failure to Perfect— Power or Court to Enforce.</p> <p>A court of equity cannot create a mechanic’s lien, where the claimant has not perfected the same as required by statute, merely because lie had an inchoate right to such a lien at the time of the institution of a suit for the administration of the property and the appointment of a receiver therefor.</p> <p>2. Appeal — Review—Question First Presente» on Rehearing.</p> <p>The right of one who performed labor on a building after the appointment of a receiver for the property, to preferential payment therefor, cannot be considered on a motion for rehearing in the appellate court, where the question is then presented for the first time.</p>

<p>Appeal from the Circuit Court of the United States for the District of West Virginia, at Charleston. •</p>

<p>1. Receivers — Appointment—Discretion op Court.</p> <p>In an ancillary suit, the purpose of which is to collect through a receiver the assets of an insolvent corporation in a district other than that in which the main suit to wind up the affairs of the corporation is pending, where the court has appointed as receiver the same person appointed in the original suit, and has determined, in the exercise of its discretion, that the convenience of the parties interested requires the appointment of a resident co-receiver, its action in making such appointment is not subject to review on appeal.</p> <p>2. Appeal — Review—Discretionary Orders.</p> <p>The action of the court in an equity suit, in denying a motion by plaintiff to continue the hearing upon the argument of a demurrer and plea, is not assignable as error on appeal.1</p> <p>3. Judge — Disqualification—'Waiver op Objection.</p> <p>Where a plaintiff has obtained the appointment of a receiver by a judge, and has argued before him and submit! ed questions relating to administrative matters in the suit, he must he, regarded as having waived the right to object to the decision of such questions on the ground that the judge is disqualified by reason of interest from acting in the suit, when the facts were at all times known to him.</p> <p>4. 'Same.</p> <p>Rot. St. S' 601, relating to tlie disqualification of a judge sitting in tins district court:, provides for tlie removal of a cause when 1he circumstances render it improper, in his opinion, for him to sit on tlie trial, and by analogy the disqualification of a judge in the circuit court is a matter for his own determination; and his decision that, under the circumstances, it is not improper for him to enter formal or preliminary orders in a case, or that the party objecting has by his own conduct waived the right to object, is not reviewable.</p> <p>5. Appeal — Appealable Orders — Appointment or Receiver.</p> <p>An order appointing a resident co-receiver to act with receivers previously appointed, entered prior to Act June 16, 1ÍX00, allowing appeals from interlocutory orders appointing receivers, is not appealable.</p> <p>6. Parties — Stockholders’ Bdits — Intervention by Other Stockholders.</p> <p>In a suit brought by a stockholder of a corporation on behalf of himself and all other stockholders, a formal order Is not necessary to entitle other stockholders to file a petition praying certain action in the cause.</p> <p>7. Appeal — Appealable Orders.</p> <p>An older entered on the intervening petition of stockholders in a corporation appointing a resident co-receiver to act with receivers previously appointed on application of the plaintiff in taking charge of the property of the corporation within the district eannot be considered a final decree, and appealable as such.</p>

<p>1. Deeds — Evidence to Impeach — Memorandum on Record.</p> <p>An unsigned memorandum on the margin of the record of a deed is not admissible in evidence to affect the validity of such deed.</p> <p>2. Administrator's Sale oe Hand — Conveyance—Construction.</p> <p>A probate court, on petition of the administrators of a decedent, authorized the sale of two tracts of land and a portion of two adjoining tracts, also owned by the estate, “containing 1(> acres, and making in all 150 acres.” A sale was reported and confirmed in accordance with said order. Two deeds appeared of record, purporting- to have been executed by the administrators on the same day to- the purchaser, conveying the land sold. Each described the two full tracts and a fractional part of the adjoining tracts by metes and bounds, and each purported to convey 150 acres. But the description in the fractional part differed in the two; the one first recorded bounding a tract containing a little less than 10 acres, while the other included in such description only about 10 acres, making the entire quantity conveyed by that much short of the full 150 acres. Held, that the first deed, being the one which conformed to the orders of sale and of confirmation made by the court, and the declared intention of the parties as to quantity, must be given effect.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The facts in this case are very fully and fairly stated in the brief of counsel for plaintiffs in error as follows:</p> <p>On the 5th day of August, 1897, the defendant in error instituted an action in debt in the circuit court of the United States for the Northern district of Illinois against the plaintiffs in error herein on a bond executed by them to the defendant in error for $20,000, and dated the 28th day of December, A. D. 1896, and conditioned that if the plaintiff in error the “Chicago House Wrecking Company shall by the first day of April, 1897, complete in each and every particular the work contemplated by the contract dated May 26, 1896, and do and perform each and all of the covenants therein stipulated by said company to be kept and performed, then this obligation to be void; otherwise, to be and remain in full force and virtue.” There was a further recital in the bond that the plaintiffs in error “and tlieir sureties are held and firmly bound unto the United States of America in the sum of $20,000, lawful money of the United States of America, computed and agreed upon by and between the United States of America and ourselves as liquidated damages, and not as a penalty, to be immediately due to the United States of America on the 1st day of April, 1897.” The history of this bond is as follows: On the 28th day of April, 1896, defendant in error invited proposals for the purchase and removal of the old United States Custom-House and Subtreasury building at Chicago. Each bidder was notified that “a copy of the advertisement, general instructions, and conditions, specifications, accepted proposals, and letter of acceptance of proposal will be attached to and form a part of the formal bond and contract to be executed and approved.” The Chicago House-Wrecking Company, one of the plaintiffs in error, became the successful bidder, and on the 26th day of May, 1896, entered into a formal contract for the purchase of the building and its demolition and removal. The obligations of the contract on the part of the Chicago House-Wrecking Company were as follows: “That the party of the second part covenants and agrees to and with the party of the first part to purchase the United States Custom-House and Subtreasury building in the city of Chicago, county of Cook and state of Illinois, including extension, heating apparatus, elevators, sidewalk flagging, lot and area coping, drainage, water, gas, and other piping,” etc., and to remove the same from the premises, with all concrete foundations, foundation walls, coal vaults, etc., and all débris, etc., and to leave the site clean, in strict and full accordance with the specification for the work, the advertisement for proposals, dated April 28, 1896, general instructions and conditions, the proposal dated May 16, 1896, addressed to William Martin Aiken, supervising architect, by said party of the second part, and letter dated May 26, 1896, addressed to said party of the second part by C. D. Hamlin, acting secretary of the treasury, accepting said proposal, “a true and correct copy of each of which said papers is attached hereto, and is hereby made a part of this contract.” “The party of the second part further covenants and agrees ⅜ * * that the entire work shall be completed to the full satisfaction of the said party of the first part within five (5) months from the date of the approval by the secretary of the treasury of the formal bond hereto attached.” This formal bond, which was for $10,-000, but which was not used on the trial of this case, was approved by the then acting secretary of the treasury on the 13th day of June, 1896. Upon the approval of the contract and bond by the acting secretary of the treasury, plaintiff in error the Chicago House-Wrecking Company began the -work of demolition and removal of the building, and had gotten down to and into the walls of the first story when it became evident that they could not complete the work within the time stipulated in the contract. An extension of time was asked by plaintiffs in error, and granted by the department, until the 1st day of April, 1897; and on the 28th day of December, 1890, plaintiffs in error, in compliance with the terms of said extension of time to April 1, 1897, executed the bond on which this action is brought. At the time of giving this bond the work of removal had not reached the cement bed or foundation upon which the building rested, and plaintiffs in error had no knowledge of its actual thickness, except as they had been told by defendant in error in the general instructions and conditions which had been promulgated by the department for the use and guidance of bidders in making their proposals, and after-wards made a part of the contract. These general instructions and conditions, under the head “Foundations,” stated as follows: “The building rests on a continuous mass or slab of concrete, covering the whole area of building, and varying from 3'- 6" to 4' 6" thick. The space between the top of said slab and under side of basement floor was also filled with concrete. Louisville and White Creek cement was used for this concrete.” These general instructions and conditions contained other provisions. Under the subject “Requirements,” it was stated: “Before submitting a proposal, each bidder should make careful examination of the specification and of the building, and fully Inform himself as to quantity and quality of the materials, and the work to be performed. And, should liis proposal be accepted, he will be responsible for any and every error in his proposal resulting from ills failure so to do.” Under the subject “Examining Building,” it was stated: “Parties intending to submit bids must apply to the custodian of the building for permission to examine the same, and for such oilier information as may be desired, and in making said examination must conform to the directions of the custodian.”</p> <p>On February 24, 181)8, plaintiffs in error filed a plea confessing a breach of the bend, in that the work was not fully completed before the 1st day of April, 1S97, and setting up in avoidance thereof the great thickness of the concrete foundations in excess of tlie thickness as given in tlie general instructions and conditions. On April 10, 1899, plaintiffs in error filed seven other pleas, to the following effect, namely: Tlie first plea being the same as the plea, filed February 24, 1898, except, confessing in more precise language the failme to complete the work entire by April 1, 1897. The second idea confessing tlie breach, and setting up in avoidance thereof tlie making of rest borings in 1he concrete foundation wherever it was possible to do so, and wherever not occupied by machinery, pillars, boilers, etc., and that this extra thickness was subsequently discovered in those inaccessible parts. The third plea confessing the breach, and setting up a delay of 30 days in the completion of the work by reason of the supervising architect withholding permission for that length of time to the wrecking company to remove tlie granite flagging and sidewalk as provided in the contract. The fourth plea, confessing the breach, and alleging that tlie agents and officers of defendant in error exercising control and direction over the work aided and assisted tlie officers of tlie city in retarding the progress of the work. The fifth plea confessing tlie breach, and alleging that, because of tlie extra thickness of ¡.he concrete foundation, it was necessary to do blasting, and that tlie work was delayed in its completion because the city authorities of the city of Chicago delayed tlie giving of authority to make such blasting. The sixth plea confessing the breach, and setting up a claim in tlie nature of set-off against defendant in error in tlie sum of ip(i.958, being the cost of removing this extra thickness in the concrete foundation in excess of the thickness given in the general instructions attached to and made a part of the contract. The seventh plea confessing tlie breach, and setting up the request of the defendant in error that the sidewall!, fJagging be left on the ground, to be used in the now building. On May 28. 1899, an amendment was filed to the fourth plea, alleging that after waiting a reasonable time for permission from the supervising architect to remove the granite flagging a.nd sidewalk, and not having received same, they proceeded to remove the same, and were hindered by the officers and servants of defendant in error in doing so; also an additional plea setting up a set-off for 810,000 expended in removing the additional thickness of con- • crete subsequently discovered.</p> <p>Upon the trial of the case, plaintiffs in error, in open court and to the jury, admitted the breach of the bond, in that they did not complete the demolition and removal of the building in question by tlie 1st day of April, 1897, and moved the court that, having admitted the issues, the burden of proof be adjudged to be on them, and they be entitled to open and close the case in the introduction of testimony and argument to the jury. The motion was refused, and an exception taken by the plaintiff in error. Counsel for defendant in error then introduced in evidence the bond sued on, the original contract marked “Plaintiff’s Exhibit B,” together with the exhibits attached thereto, one of which was the general instructions and conditions. Here counsel for the plaintiff (defendant in error) stated to tlie court that if it is admitted that the work was not completed according to contract on the 1st day of April, 1897, the plaintiff would not call any witnesses and would close its case, and thereupon it was admitted in open court by counsel for the defendant (hen1 pi,: in tiff's in error) that the contract referred to in the bond sued on in this case was not completed on the 1st day of April, 38S17, as required by tlie contract, and that this admission should be taken as evidence and proof of that fact. This concluded the testimony on the part of the plaintiff. Thereupon plaintiffs in error tendered witnesses and offered proof of the various pleas sot up in their answer, which testimony was excluded by the court on objection by counsel for defendant in error, and exception was taken to the court’s ruling. Counsel for plaintiff in error also offered to show by the witnesses that the wrecking company, having obtained the extension of time and given the bond required therefor, continued to prosecute the work of removal of the building and the performance of the various items in connection therewith enumerated in the contract; that after a time the walls of the building were removed, and the work of blasting and removing the concrete foundation was begun; that it was then discovered for the first time that the concrete mass or slab under the outer walls and inner walls and pillars, and under that portion occupied by the electric light plant, the boiler and engine room, and other places occupied by heavy machinery, had a thickness of from seven to twelve feet, and contained an excess of about fourteen thousand five hundred cubic yards over what would be contained in the dimensions furnished by the government under the subject “Foundations.” This testimony was likewise excluded by the court, and exceptions taken. It was further offered to be proven that the wrecking company continued to prosecute the work of its removal, notwithstanding the fact that it was apparent the work could not be completed within the period of the extension; that after April 3, 1897, which was the expiration of the extension period, the wrecking company continued the work of removal with the full knowledge and acquiescence of the government, and completed the work about the 14th day of June, 1897; that the quantity of extra material so removed from this cement, foundation was about 15.500 cubic yards, and the extra cost of its removal was about $16,500; that during all of this time, from the 1st day of April until the 14th day of June, the government permitted the wrecking company to go on expending large sums of money to remove this extra concrete and finish the work, accepted the results, and received the benefits thereof. This offer the court also excluded upon objection by counsel for defendant in error, and exceptions were duly taken. Testimony was also offered to show that, but for this extra thickness in the concrete foundation, the work would have been completed by April 1, 1897; but this, too, was excluded. It was further offered to be shown by the witness James O. Rankin, who was the supervising architect for the United States government in the original erection and construction of this building in .the years 1868, 1869, 1870, and 1871, that the original plans and specifications of this building contemplated making the concrete foundations about four feet thick, but that various local conditions necessitated making it much thicker. The same testimony was offered by the'witness Garnsey. an architect who was associated with the architect Rankin in the erection of the building; also that the concrete nnder the columns and outer walls was in excess of seven feet in thickness; that later on concrete pieces, or buttresses, were put down on the outside of the walls to' strengthen them; that these pieces were put down twelve feet below the surface in many places, and the thickness of the concrete under the outer walls and pillars was as much as nine feet in thickness. All of which testimony the court excluded. The court also refused to permit plaintiffs in error to show that they were delayed in the completion of the work by reason of the conduct of the city authorities in withholding permission to do the necessary blasting to remove ilie concrete foundation, and that they were also delayed by the officers and agents of the government, who refused them permission to remove the granite-flagging and sidewalk at the proper time in the progress of the work. All the rulings of the court were made upon the theory that the bond sued upon was a bond for liquidated damages, and that the amount thereof became due as a debt upon the failure to fully complete the work by April 1, 1897. The action was defended on the theory that the bond, notwithstanding the recitals on its face, was in fact and in law a penal bond, and that, under section 961 of the Revised Statutes of the United States, the recovery must he limited to such sum “as is due according to equity.” The court said: “It is a matter of law here. I passed upon alt the points you suggested. There is no use pasting any more time,” — and, after refusing the instructions requested by plaintiffs in error, directed the jury to find against them “for the total sum of twenty thousand dollars,” and “to assess the damages at the sum of twenty thousand dollars,” which was accordingly done; and the court, after overruling a motion for a new trial, entered judgment upon the verdict.</p>

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

<p>In Error to the Circuit Court of the United States for the 27orthern District of Texas. ,</p>

This was a common-law action for damages, brought in the United States circuit court for the Western district of Texas, at Austin, by Dillard R. Fant, the defendant in error, against Benito Garza y Garza, the plaintiff in error, and others, for the sum of $14,750, claimed to be due for pasturing live stock for the parties sued.

At Law. This action was brought hy plaintiff to recover from defendant the sum of $2,889.82, alleged to be due him for 1,612 days’ services, at $1 per day, as care-taker of defendant’s mining property at Pittsburg, Nev., between September 30, 1895, and March 2, 1900. The action was originally brought in the state court, and thereafter, upon motion of defendant, removed to this court.

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

<p>L Patents — Suits for Infringement — Statement in Specification as to Prior Art.</p> <p>When a patentee has practically disclaimed other devices by stating in his specification that they existed before his own was contrived, such other devices may fairly be considered to be a part of the prior art in a suit upon his patent.</p> <p>2. Same — Invention—Determination on Demurrer.</p> <p>Where it is claimed in the specification of a patent that certain improvements embodied in the device shown are novel and of great utility, and ■ they are not disclosed in the prior art so far as the court can take judicial notice of it, the patentee should be given» the opportunity to show that his device has been so received by the public as to indicate that it has the merit claimed, and should not be declared void on its face.</p> <p>8. Same — Hat Boxes.</p> <p>The Lyons patent No. 573,789, for improvements in hat boxes and trunks, describes a device not so obviously lacking in invention as to warrant the court in declaring the patent void on its face.</p>

<p>Saiyvage — Rescue op CfeoiiNnun Schooner — Amount op Award.</p> <p>A schooner worth, with her cargo, 98,000, grounded on the shoals inside tlie mouth of Cape Fear river. She was in imminent danger of being lost, with her cargo, by the action of the wind and breakers. She had hoisted a distress signal, and was about to be abandoned by her crew, when she was rescued, and towed safely into port, by libelant’s passenger steamer, which was worth about $16,000, and manned by a crew of seven, and which left her wharf, and went to the assistance of the schooner, there being- no other vessel near enough to give assistance. The salvage service occupied an hour, and was promptly and efficiently rendered. The steamer passed through the breakers, but was at no time in great peril, nor were the lives of those on board either vessel in great danger. Held, that an award of $2,000 was excessive, and should be reduced to $1,000. *</p>

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Wilmington, in Admiralty.</p> <p>“The barge Carrie L. Tyler has been employed in carrying phosphate rock from the port of Charleston, S. C., to the port of Wilmington, N. C. Her tonnage is 565 tons gross, 503 tons net. She is enrolled at Charleston. She draws 18 feet. This barge carries two low masts, with a spread of sails used to steady her at sea, but entirely incapable of propelling her; and, in fact,-she is without any propelling power whatever. When she was towed towards the mouth of Cape Fear river, she was taken in tow by the tug Alexander Jones, a regular coastwise steam tug. The master of this tug and her first mate are both duly licensed as branch pilots for' the Cape Fear river and bar. The libelant is a duty-licensed pilot of the Cape Fear river and bar. On three separate occasions while on his cruise he saw the Carrie L. Tyler proceeding towards and crossing the bar of the Cape Fear river, and on each occasion proffered his services as pilot to her. On each occasion his proffer was refused. He thereupon filed his libel in rem against the said barge, demanding the fee to which he would have been entitled had he piloted the barge. Under the law of North Carolina, the pilot fees for all vessels drawing 18 feet is $143, except coastwise vessels. These are entitled to a discount of 25 per cent., leaving $107.25. For the three occasions he demands $321.75. The answer denies all liability to libelant on the facts stated. The district court disallowed the claim, and dismissed the libel. 103 Fed. 326.</p> <p>The statutes of North Carolina under which libelant claims are as follows:</p> <p>“Sec. 3496. When the Master of Vessel Need not Take Pilot. 1858-’9, e. 23, §8. No master of a vessel shall be required to take or keep a pilot on board or pay for pilotage in the river or over bars, who is or has been a full branch pilot, or employs a full branch pilot as first mate of his vessel.”</p> <p>“Sec. 3499. Rights of Pilots as to Main and New Inlet Bars of Cape Fear. R. C., c. 85, § 11; 1797, c. 486, § 1. The pilots having branches to pilot over the Main bar, or New Inlet bar, of Cape Fear river, shall be entitled to pilot and navigate vessels into port over either bar; and the pilot who shall bring a vessel into port over either bar shall be entitled, exclusively, to navigate the same vessel out of port over either bar; provided, when any vessel shall be ready to go out of port, and such pilot does not attend to navigate the same, the captain or master may employ any other pilot for that purpose, such other pilot being a branch or commissioned pilot for the bar over which the vessel is to be< navigated out; and every pilot who shall navigate a vessel out of port contrary to this section shall for every such offence forfeit and pay forty dollars to the pilot or pilots, who, by this charter, would have been entitled to navigate said vessel out of port.”</p> <p>“See. 3502. Idiots Refused, Entitled to Full Pilotage. R. C., c. 85, § 14; 1784-, c. 207, § 8. AVlien any master of a vessel, not having a pilot on board, coming over the bar into the Oape Fear river; or being in the river and going out of either of the inlets, shall refuse a pilot across the bar, then each pilot so refused shall be entitled to (he same pilotage as If he had been actually employed to pilot, and had piloted such vessel.”</p> <p>"Sec. 3503. One-Third Fees to be Paid to Pilots in Certain Cases. R. G., c. 85, S 15; 1780, c. 202, § 6. When any vessel shall come over the bar before a pilot boards her, she shall pay only one-third fees for coming in, unless when it may happen the weather Is so bad that no person can board a vessel, in which case, if lie shall hail her without the bar, he shall be entitled to full fees.”</p> <p>“Sec. 3505. Pilot Entitled to Full Pay (hough Refused, When. R. €., e. 85, Si 17; 18X3, e. 800; 1823, c. 1222, §§ 1, 2; 1831, c. (55; 1810, e. 48; 183(5-57, c. 1-. When a master of a vessel shall refuse a pilot either up or down the Cape B’ear river, then each pilot so refused shall he entitled to the full pilotage in the same manner as he would have been had he been actually employed for the purpose of piloting such vessel. But any vessel under sixty tons burden shall not be compelled to take a pilot while crossing the bar, or pay pilotage, except where signals are made for a pilot: and no vessel coming in at eitiier of the said inlets with a view to the more convenient prosecution of her voyage, or to make a harbor, shall be subject to the payment of pilotage.”</p>

This case comes up on appeal from the,district court of the United States for the Eastern district of North Carolina sitting in admiralty. 103 Fed. 327. •The libel is filed by the board of commissioners of navigation against the barge Carrie L. Tyler, and is a proceeding in rem.

<p>1. Coi/lisioN — Credibility op Witnesses.</p> <p>The fact that the testimony of witnesses to a collision was manifestly incorrect as to certain matters of estimate or judgment, such as the distance between the vessels at a particular time, the length of time during which one of them kept a certain course, or the distance traversed on such course, does not impeach their veracity, and is not sufficient to discredit their testimony as to other facts which were obvious, and about which they could not be mistaken.</p> <p>2. Same — Effect of Misstatement in Pleading.</p> <p>A statement in the answer of a steamer to a libel for collision with a sailboat that the boat changed her course when “some one hundred feet” off the steamer’s bow, is not of such an absolute fact as to preclude the steamer from showing that in fact the sailboat changed her course, and attempted to cross ahead of the steamer; and that the collision was due to such fact, although, if the vessels had been in the positions and at the distance stated when the change was made, collision would have been impossible, having regard to the relative speed of the two vessels as shown by the evidence.</p> <p>3. Same — Steamer and Sailboat.</p> <p>The evidence showed that libelant was in a small sailboat, sailing in the same direction as the steamer. The evidence of libelant was that he continued his-course until struck and sunk by the overtaking vessel. A passenger with him testified practically to the same fact, though his testimony was impeached by evidence of contradictory declarations. Testimony of persons on board the steamer was all to the effect that, just before they overtook the sailboat, libelant changed the course of the same so as to go directly in front of the vessel. There was evidence that libelant was intoxicated at the time of the collision. Testimony for the defendant was in no way discredited, except by the contradictory testimony of libelant. Held that, it being very clear from the ‘evidence that the fault of the steamer, if any there was, was slight compared with that of the libelant, a decree should be rendered in favor of the defendant.</p> <p>4. Same — Division of Damages.</p> <p>The rule in admiralty does not admit of the apportionment of damages for collision to correspond with the respective degrees of negligence of the two vessels; but, if divided, it must be equally, and, where the fault rests chiefly with the vessel of libelant, he will not be entitled to recover because there may have been slight negligence on the part of the other vessel.</p>

<p>Motion to Remand.</p>

<p>1. Receivers - Proceedings agunst — Cross Bu.Ij.</p> <p>That an instrument entitled as in a cause in which a receiver was appointed for the defendant is improperly designated as a cross bill, the sole defendant named in it being the receiver, who was not a party to the original suit, is immaterial; it not being denied that the complainants in the so-called cross bill have an interest entitling them to ask, as they therein do. the judgment and order of the court respecting the proposed conduct of its receiver.</p> <p>2. Federad Courts — -Jurisdiction—Receivers.</p> <p>A federal court has jurisdiction of a proceeding by the parties interested in a corporation for which it has appointed a receiver to enjoin him, on obtaining his discharge, from making use of the knowledge of the corporation’s business acquired by him in his office of receiver, by engaging in competition with it, or the successor to its business, though all the parties to the proceeding are citizens of the state; but under such conditions it cannot inquire into any contractual obligations of his not to enter into such competition.</p>

<p>Receivers — Appointment.</p> <p>A receiver will not be appointed on preliminary hearing, all the grounds therefor being fully met by afíidavits.</p>

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

This is an action at taw by the receiver of an insolvent national bank to collect a second assessment made by the comptroller of the currency upon its stockholders.

This was an action in replevin, brought by the plaintiff in error against the defendant in error to secure possession of 47,000 ties alleged to have been cut by the defendant without authority from unsurveyed public lands. The marshal returned that he executed the order of delivery made in the case by taking possession of 47,000 ties, located on ¡he bank of tho North Platte river at or near the mouths of Mullen and French creeks, in Carbon county, in the state of Wyoming.

This was a suit in ejectment instituted in 1892 by Platt Rogers, as mayor of the city of Denver, against Samuel B. Morgan and some 40 other persons, grantees oí Morgan, for the possession of the S. ½ of the X. E. ¾ of the S. E. ⅛ of section 2, township 4, range 08 W., in Arapahoe county, Oolo.

<p>1. Mandamus — Collection op Judgment against Municipality — Single Writ against Separate Officers.</p> <p>Whore it is by statute made the duty of a county auditor to assess, and of tlie treasurer to collect, a tax Cor the payment of a municipal debt evidenced by a judgment, a single writ of mandamus may issue against boih officers, commanding' them to perform their separate but co-operative duties in the collection and payment of such judgment.1</p> <p>3. Municipal Bonds — Repeal on Statutory Provisions for Payment — Mandamus to Enforce Judgment.</p> <p>Where the legislature of a state has authorized a municipality to issue bonds, and provided in the same act for the levy of taxes to pay the principal and interest of tlie same, such provision becomes a part of the contract on the issuance of the bonds, which cannot, be impaued by any subsequent legislation; and a federal court which 1ms rendered a jixdgmeut against the municipality on such, bonds, or their coupons may compel the levy of a tax for its payment by mandamus, notwithstanding the attempted repeal of the provisions therefor by the legislature.</p> <p>S. Constitutional Law — Impairing Obligation of Contracts — South Carolina Statute.</p> <p>Tlie acts of the legislature of South Carolina prohibiting the levy of any tax to pay township bonds issued in aid of a railroad, except in certain cases, and repealing all acts inconsistent therewith (22 St. at Large, p. 634; 23 St. at Large, p. 78), are in violation of the constitution of the United States, as impairing the obligation of contracts, and void in so far as they affect bonds in the hands of bona fide holders which were issued under prior statutes providing for the levy of taxes for their payment; and they constitute no defense to a proceeding in a federal court for a writ of mandamus to compel the levy of a tax to pay a judgment of such court rendered on such bonds.</p> <p>A Municipal Bonds — Mandamus to Enforce Judgment — Levy to Pay Ar rears of Interest.</p> <p>Where an act authorizing the issuance of township bonds required the proper taxing officers of the county to levy and collect an annual tax to pay the interest thereon, and such officers have neglected or refused to make the levies and collections until the interest has become in arrears for several years, a court which has rendered judgment for such accumulated interest against the township may order a single levy to meet the entire judgment.</p> <p>5. Judgment — Matters -Concluded — Collateral Attack.</p> <p>The validity of a judgment rendered against a municipality by a federal court for interest on bonds issued by such municipality cannot be attacked on appeal from an .order subsequently made directing the issuance of a writ of mandamus to enforce payment of the judgment. In such proceeding the judgment is conclusive as to all matters affecting the right of the plaintiff to recover, and which were or might have been litigated in the action, including the constitutionality of the act under which the bonds were issued.</p> <p>6. Mandamus against Municipal Officers — Direction to Defendants and Their Successors.</p> <p>A writ of mandamus directing the officers charged by statute with that duty to levy and collect a tax for the payment of a judgment against a municipality may properly be directed to such officers and their successors in office, and will bind such successors.</p>

<p>1. Slander of Title — Pleading.</p> <p>Tlie complaint alleged the assignment by defendant to plaintiff of a contract for purchase from a third person of a bond and mortgage, which was a lien on defendant’s property; that the agreement between plaintiff and defendant was that, if plaintiff took an assignment thereof, he should become, and continue to be, the owner thereof, with all the rights of an ordinary assignee for value; that, after plaintiff became owner -of the bond and mortgage, defendant made false statements concerning plaintiff’s ownership and his right to dispose thereof by sale, whereby plaintiff was prevented from making a certain sale, and was obliged to sell at a less price. Held, that the action was improperly laid in contract, the cause of action being for slander of title.</p> <p>2. Same —Damages.</p> <p>A complaint for slander of plaintiff’s tille to property, wlicrel>y he was prevented from making’ a certain sale, and was obliged to make another at less price, being for special damages, should state the names of the customer lost and of the one to whom sale was made, and the price he could have obtained and that actually obtained.</p>

<p>Res Judicata — Judgment on Demubrer.</p> <p>Judgment of dismissal on plaintiff’s declining to amend Ills complaint after the sustaining of a demurrer setting form that the complaint does not state facts sufficient to constitute a cause of action, and that it is ambiguous and uncertain, may be pleaded as res judicata to a second action for the same cause of action.</p>

<p>1. Mikes- -Location — Ovkblai’s.</p> <p>For the purpose of locating a mining claim with parallel linos, parts of (lie lines may be within another claim, though within the overlaps the rights of the older claim jirevail.</p> <p>2. Samk — Including Part op Width op Yf.in.</p> <p>The senior location, having within its surface a part of the width of the apex, owns the entire width of the ledge.</p>

<p>1, CleRks of United States Courts — Fees—Rules of Court.</p> <p>While a court may properly direct its clerk, as to the manner of keeping his records,' by a rule or order, it cannot authorize him to charge fées for the making of such records, except under and in accordance with some statutory provision.</p> <p>2. Same.</p> <p>Under Rev. St. § 828, par. 8, providing that clerks of United States courts shall receive fees “for entering any return, rule, order, continuance, judgment, decree, or recognizance, or drawing any bond or making any record, certificate, return or report, for each folio fifteen cents”; and section 854, which defines a folio as 100 words, and provides that less than 50 words shall not he counted, “except when the whole statute, notice, or order contains less than 50 words,” — one proceeding, as an arraignment and plea, or a sentence and judgment, entered at the same time as one entry, cannot he divided so as to count each part of it as a separate folio, regardless of the number of words, although by a rule of court each part is required to he made separate and distinct; but where the transactions occur separately, as where, on arraignment, time is given to plead, and the entries are made at different times, each may be counted as a folio, under the first paragraph of the provision.</p> <p>8. Same — Swearing Jurors on Yoir Dire.</p> <p>Under Rev. St. § 828, par. 4, providing that clerks of United States shall receive as a fee “for administering an oath or affirmation, except to a juror, ten cents,” a clerk is not entitled to a fee for swearing persons summoned to serve as grand or petit jurors to answer on their voir dire as to their qualifications, tlie term “juror” l)eing used in the statute in Its generally accepted sense, as meaning any person selected and summoned according to law to serve in Unit capacity.</p> <p>4. Samis — Order job Kemovat, ok Prisoners.</p> <p>The provision of Key. St. § 1080, that “no writ shall be necessary' to bring into court any prisoner or person in custody or for remanding him from the court into custody, but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal,” has reference to prisoners or witnesses in custody while In attendance upon a session of court, and does not deny (.lie clerk fees for entering orders of court for the removal of prisoners from one county to another, into which they are to he brought for trial, but he Is _ not entitled to a fee for entering an order for the bringing of prisoners ’ info court for trial or sentence or for remanding them to jail.</p>

<p>1. Bankruptcy — Proof and Allowance of Claims — Preferred Creditors.</p> <p>Under Bankr. Act 1898, providing that “tbe claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences,” a creditor who has received a partial payment while the debtor was insolvent, and within four months before the latter became bankrupt, must surrender such payment as a preference before he can prove the balance of his claim, notwithstanding the fact that he received it in the ordinary course of business, and without knowledge or reasonable cause to believe that the debtor was insolvent, or a preference intended.</p> <p>2. Same — Right to Set Off New Credit.</p> <p>Under Bankr. Act 1898, § 60c, providing that, “if a creditor has been preferred, and afterward in good faith gives the debtor further credit, without security of any kind, for property which becomes a part of the debtor’s estate, the amount of such new credit remaining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which would otherwise be recoverable from him,” the right to such set-off is not restricted to cases in which the trustee brings an action against the * creditor under the preceding clause to avoid the preference and recover the amount thereof, but is available to the creditor as against a preference he is required to surrender to secure the allowance of his claiip. The preference is as effectually “recoverable” through legal proceedings in the latter case as in the former, and it is c'ontrary to the equitable spirit of the act to give the right of set-off to a creditor who knowingly received a preference, and deny it to one who received a preference innocently.</p>

<p>Appeal from the District Court of tlie United States for the District of South Carolina.</p>

<p>Appeal from the District Court of the United States for the District of South Carolina., at Charleston, in Bankruptcy.</p>

<p>1. Bankruptcy — Acts op Bankruptcy.</p> <p>The withdrawal oí money from an insolvent firm by one of tlie partners, and its secret transfer to a third person, in connection with other concurrent transactions between the partners, held a. conveyance and transfer of property, with intent, to hinder and delay creditors, by both partners, which constituted an act of bankruptcy.</p> <p>2. Samis — Partnership—jVIarsiiamjío op Assets.</p> <p>When the actions of partners, in connection with the transfer by one of his interest in the firm to the o(her,.were fraudulent, and constituted acts of bankruptcy, upon which both partners and the firm are adjudged bankrupts, the property will be marshaled, as between firm and individual creditors, as though no transfer had been made.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>Trade-Mark — Infringement—Accounting—Laches.</p> <p>Right to an accounting of the gains and profits of an infringer of a ' trade-mark is .barred by laches, he having openly sold his product under the infringing label for over three years, to the knowledge of, and without objection by, the owner of the trade-mark.1</p>

<p>Trade-Marks — Injunction.</p> <p>Where plaintiffs have the sole right to use the trade-mark “Golden Wedding,” as applied to whisky of their production, defendant will be restrained from refilling plaintiffs’ barrels carrying such trade-mark, to palm off his product as that of the pilaintiils.</p>

<p>Patents — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction will not be granted in a suit for infringement of patents of recent date, which have never been adjudicated upon, and where there is serious contention as to the questions of validity and infringement, unless there are special circumstances shown.</p>

<p>In Equity. Suit for infringement of pa tent.</p>

In Equity. The cause comes here upon final hearing on pleadings and proofs. The suit is for infringement of United States patent No. 477,517, June 21,1892 (application filed November 13,1891), to Joseph M. Crary for improvements in typewriting machines.

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>The appellant was the complainant below in a suit for alleged infringement of letters patent No. 492,913, issued to J. G. Chambers, March 7, 1893, for an “electric lamp lighter” (used as a cigar lighter), and No. 522,934, issued to J. J. Eberhard and O. G. Sehimkatt, July 10, 1894, for an “electric cigar lighter,” — both patents being owned by the complainant. Infringement of a third patent (No. 522,727, granted to Chambers) is further charged in the bill, but no claim is made thereunder. On final hearing the bill was dismissed for want of equity and this appeal is from such decree.</p> <p>The Chambers patent. No. 492.913. was granted upon an application filed November 21, 1892, and the drawings and specifications are as follows:</p> <p> </p> <p>“My invention relates to certain new and useful improvements in an electric lamp lighter, and it consists of the devices and appliances, their construction, combination, and arrangement, as hereinafter specified and claimed, and illustrated in the accompanying drawings, in which Fig. 1 is a side elevation, blowing parts in seciion; Fig. 2 is a side elevation, illustrating a modification, of the invention; Fig'. 3 is a detail view of the insula tod cap; Fig. 4 is a partial side elevation, illustrating a modification of m.v invention; Fig. 5 is ano tiler detail, allowing the insulating cap in section adjacent to ihe upper end ol' the lamp. The principle of my invention depends upon providing poles of an electric circuit adjacent to the end of the lamp to be lighted, the circuit being normally open, and in closing and breaking said circuit to produce an electric spark to ignite the lamp. My invention contemplates preferably making the electric circuit through a properly constructed lamp and an adjacent arm, and in breaking said circuit by a movement of the lamp or arm, to produce an igniting spark adjacent to the lamp when it is desired to light the lamp. To effect an economical use of electriciiy, and prevent an unnecessary running down of the battery, it will obviously he requisite to have the electric poles of the battery normally out of connection, so that the circuit shall be upen. The object of my invention, is to provide a device of tins class of superior utility, which shall be simple, economical, and eXiicient, and which may be readily operated. 1 carry out my invention as follows: A represents any suitable support. B, B, is an electric battery. B' is an induction coil, connected therewith. O and O' are the wires connected with said coil. D denotes a standard upon which rests a lamp, ¾ provided with a wick lube, as at e. Tlie chamber of the lamp is constructed preferably of metal. One of the wires, as the wire O, is electrically connected with said standard; the current. when the circuit is completed, passing through the standard and lamp and adjacent to the exposed portion of the wick. F denotes an arm which may be supported on said standard, D; said arm extended into proximity to the lamp wick. The other wire, as the wire C', is («tended tltrough said standard, and insulated therefrom, and electrically connected with said arm. (J- denotes insulating material, and H is a coimeeling metallic bar, electrically uniting said wire, O', and the arm, F; said bar being insulated from the standard, 1), and from the lamp. The arm, F, may he fulcrumed upon the bar, H, as at h, and provided at its lower end with an operating handle. At the end adjacent to the lamp wick, the arm, F, is provided, preferably, with a piece of wire, F'; the wire being coiled, as shown at f, between its outer extremity and the arm. The extremity of the arm projects normally over the wick, at which point it is also provided with an insulating cap, Ite, and with an extension, F» (Fig. 5); the cap and its extension acting as an extinguisher. The lamp may have a removable engagement with the standard, D'; the standard being constructed with a flanged, seat, 'd, for the lamp, Uto flange being provided with a retaining recess, as at d', and the lamp being provided wiili a ¡(in, o', engaging said recess. The operation of the device as now described is evident. By moving the arm, F, upon its fulcrum, the wire tip, F', is brought first into cor1 act with the metal of the lamp adjacent to the wick, thereby completing the electrical circuit. An the arm. F, continues to be moved fur (her, said wire point is disconnected from the lamp, producing an electric spark adjacent to the lamp wick, and igniting ihe lamp. J is a spring to automatically return the arm, F, to normal position out of electrical connection with the lamp, and bringing the insulating cap and the extinguisher into position to extinguish the lamp. I»y removing the spring from its bearing upon the arm, it may be held out of norma) position, allowing the lamp to burn freely for any length of time desired. The lamp may be thus removed from the standard and carried about, if desired. 1 do not limit myself to any particular material to supply combustion in the lamp, but And gasoline very suitable, and I prefer to saturate a supply of cotton, as indicated at e2, within the lamp, or analogous material, with the gasoline. Alcohol or other suitable material may, however, be used, instead of gasoline. As shown in Fig. 4, the lamp is hinged to the standard, as at IiX As so constructed, the arm, F, may remain stationary, and the lamp be moved, so as to form electrical connection with the wire lip upon the arm, F, and automatically light the wick. By this construction, shown in said last-named figure, either the arm or ilie lamp may lie moved, as may be desired, to produce ignition. In Fig. 2. the lamp, instead of being directly supported upon the standard, is suspended upon shaft, K, of a .gear, K', meshing with a gear, h, rigidly connected with the arm, F. By this latter construction, evidently, when the upper end of the arm Is moved in one direction, the upper end of the lamp- is moved in the opposite direction. In this case both the arm and lamp are movable. It will be seen, thus, that the lamp is self-lighting and self-extinguishing, by moving either the arm, F, or the lamp. The lamp, being movable, may be taken out from the support and carried about. The device is adapted for a wide variety of uses. It may conveniently be used as a cigar lighter, for lighting gas jets, and for other analogous purposes. As shown in Fig. 1, the standard, D, is vertically adjustable in the base, A, so as to raise and lower the lamp to a desired height. A set screw, M, may be provided to'hold the standard in position. A screw, j, insulated from the standard, D, serves to hold the spring in plaice, while an additional similarly insulated screw, N, serves as a stop for the arm, D, when automatically returned to normal position. The screws may be made of insulating material, or the standard, D, may be provided with insulating material.”</p> <p>Infringement is alleged of claims 1, 7, 10, and 12, reading as follows:</p> <p>“(1) In an electric lamp lighter, the combination, with a lamp, the burner of which is formed into or provided with an electrode, an extinguisher formed into or provided with the opposite electrode, the means for establishing and breaking the electric connection between said electrodes substantially as set forth.”</p> <p>“(7) In an electric lamp lighter, a metallic supporting standard, a metal lamp, a metal arm insulated from the standard and lamp and led into proximity to the lamp, an electric circuit through the arm, lamp, and standard, having its poles adjacent thereto; said lamp and arm the one made movable in relation to the other, to make and break said circuit at said poles, the circuit being normally open, substantially as described.”</p> <p>“(10) In an electric lamp lighter, a lamp, a support therefor, an arm, led into proximity to the lamp, provided with an extinguisher, an electric circuit having, its electrodes at the adjacent portions of the arm and lamp; said arm and lamp thfe one movable in relation to the other to close said circuit to ignite the lamp, and self-retracting to extinguish the lamp, said circuit being normally open, substantially as described.”</p> <p>“(12) In an electric lamp lighter, the combination o-f a lamp, a support therefor, an arm overhanging the lamp tube, an electric circuit in electrical connection with the lamp and with said arm, a. metallic bar, H, connecting said arm with the circuit and insulated from the standard and lamp; said lamp and arm the one made movable with relation to the other, to close the circuit and ignite the lamp, substantially as described.”</p> <p>The Eberhai'd & Schimkatt patent, No. 522,034, was granted upon an application filed September 25, 1893, and the drawings and specifications are as follows:</p> <p>“Our invention relates to improvements in electric cigar lighters, and it consists in certain features of construction and in combinations of parts hereinafter described and pointed out in the claims. A preferable construction embodying our invention is illustrated in the accompanying drawings in which Fig. 1 is a side elevation of the lighter, portions being broken away and in section to more clearly show the construction; Fig. 2 is a front side elevation of the lighter, or left-hand side elevation relative to Fig. 1, portions being broken away and in section to more clearly show the construction; Fig. 3 is an enlarged elevation in section, hereinafter more fully described. Fig. 4 is a top plan in section on line 4, 4, Figs 1 and 2. Referring to the drawings, A represents a lamp preferably composed of a metallic or electric current conducting tube open at its upper end for receiving a wick or suitable absorbent and inflammable material, a. The remaining portion of the tube is bent to form a loop or handle, A', that, serves as a reservoir for receiving the oil or liquid fuel; said reservoir having a nozzle, A2, for filling purposes, a cap or plug, As, being provided for said nozzle. The lamp is pivotally hung, as at C, between a pair of arms or brackets, B, that are suitably connected at the top by a cross member, B', suspended from the ceiling or support overhead by means of the insulated wires, D and D', that lead from the two terminals of an electric battery or other electric source (not shown). Members, B, B, and</p> <p> </p> <p>B', are preferably composed of a single piece of metal or conducting material, forming a U-shaped frame. Upon the insulating material that incloses one or both of the electric -wires is preferably formed a knot. K, that engages the tinder side of the central portion of, and thereby supports, cross member, B'; the latter being preferably bent upwardly at that point to more conveniently accommodate the location of said knot and other parts hereinafter described. The one electric wire, namely, wire 1), electrically connects with member B', as at d; member B', through supporting arms of brackets, B, and the pivotal bearings of the lamp, having electrically connected therewith the wick-holding tube of the lamp. The other electric wire, D', electrically connects with an electric current conducting plate, G, suitably supported a suitable distance below member B', preferably from screws, H, the heads, h, whereof engage the upper side of member B\ and the shanks of the screws extend through said conducting plate and screw into an extinguishing plate, I, located below the conducting plate and hereafter more fully described. Said conducting plate is electrically insulated from supporting arms or brackets, B, and consequently from the lamp; insulating bushings, K, being mounted upon the supporting screws where the latter extend through the conducting plate, insulating material, L, being interposed between the conducting and extinguishing plates, insulating material, M, being interposed between the flanged edges of the conducting plate and the supporting arms or brackets, and insulating material, N, lining the under side of cross member, B'. By the construction just described, the conducting plate is effectually insulated from the lamp. A spring, O, suitably supported, is electrically connected with the conducting plate a suitable distance in advance of the aforesaid extinguishing plate (see Figs. 1 and 2); said spring being preferably of the coiled variety, with the one end of the eoiled portion electrically connected with the conducting plate, as at O', and the other end projecting downwardly into the path of the upper extremity of the wick-holding tube of the oscillating or swinging lamp, as at 02; the arrangement of parts being such that, normally, the lamp hangs in position with the upper end of the wick-holding tube rearward of the aforesaid contact spring, so that, upon oscillating or actuating the lamp forwardly upon its pivotal bearings, the upper end of the wick-holding tube thereof makes and breaks contact with the contact spring, first closing and thereupon interrupting the electric circuit, resulting in the production of an electric spark that establishes the ignition of the wick or absorbent and inflammable material of the lamp. The extinguishing plate I hereinbefore referred to, as already indicated, is supported by means of screws, H, It is located at the rear of the contact spring, 0, and has a downwardly and rearwardly extending incline or arc-shaped member, I (see Fig. 1), located just outside of the path of the upper extremity of the wick-holding tube of the lamp, so that, when the lamp is released" after use, and thereupon swings rearwardly by gravity, the light thereof will swing in under and close to the incline or arc-shaped member of the extinguishing plate, and be extinguished thereby. Another feature of considerable importance consists in the adjustability of the lamp, relative to the contact spring, so that proper contact shall be made between said spring and lamp in the operation of the device. A preferable construction for the purpose is exhibited very clearly in Figs 1, 2, and 4, wherein the pivotal of the lamp is a part of two clamp sections, R, R, that embrace opposite sides of the wicket holder of the lamp, respectively, and are caused to clamp said holder by tightening screws or bolts, S, S, that extend through the clamp sections on diametrically opposite sides of the holder, respectively. By loosening said securing screws or bolts, the clamp releases or loosens its grip on the lamp, whereupon the latter can be adjusted vertically to bring the upper extremity of the wick-holding tube in the position required relative to contact spring, O.”</p> <p>Infringement is alleged of claims 1 and 6, reading as follows:</p> <p>“(1) In an electric cigar lighter, a suitably supported framework carrying a contact device, and comprising the cross bar, the depending hangers, the lamp pivoted to-the lower end thereof; also carrying a contact device adapted, in the swinging of the lamp, to engage with the contact device on the framework, — substantially as described.”</p> <p>“(6) In a cigar lighter, the combination, with a frame comprising a cross bar and two depending members, of a lamp pivotally secured at the lower ends of said members, — the cross bar of the frame being provided with an inclined extinguishing plate, and the upper end of the lamp being cut at an angle, whereby the light of the lamp is extinguished when the end of the lamp passes under the extinguishing plate, — and means of automatically forming an electric spark when the end of the lamp passes out from under the plate, substantially as set forth.”</p> <p>The device which is alleged to be an infringement is made in accordance with letters patent No. 562,395, issued to A. O. Gruhlke and W. F. Kessler, June'23, 1896, and No. 598,489. issued to W. F. Kessler, February 1, 1898; and it is accurately shown in the drawings of the last-mentioned patent as follows:</p> <p> </p> <p>The following patents were introduced as showing the prior art, classified by the experts on the part of the appellant as (1) gas-burning lighters; (2) incandescent wire lighters, purely electric; (3) fluid lighters, as follows: Of the first class, Rouillion’s, No. 170,303 (1875), Tag & Smith’s, No. 399,168 (1889), Kronenberg’s, No. 399,416 (1889), and Knot’s, No. 493,030 (March 7, 1893); of the second class, Belfield’s, No. 383,611 (1888), and Engert’s, No. 463,754 (1891); of the third class, Flora & Hoy’s, No.422,196 (1890), Graham’s, No. 432,-197 (1890), Robert’s, No. 135,668 (1890), Hayden’s, No. 436,354 (1890), Gutberlet '& Tsard’s, No. 488,889 0 892), Hen & Welnmanu’s, No. 382,231 (1888), and Eafet-man’s, No. 481,692 (August 30, 1892); also the following patents, which aye subsequent to Chambers’, but prior to Eberhard & Schimkatt’s: Russell’s, fío. 499,596 (1893), and Struble’s, No. 506,347 (1893). On the part of the appellee these patents are classified In another aspect, thus: (1) Torch lighters, No. 435,068, No. 422,196, No. 436.354, and No. 432.197; (2) swinging lighters, No. 170,303, No. 399,168, and No. 399,416; (3) fixed base lighters, No. 493,030, No. 481,692, and No. 382,231;' (4) incandescent lighters, No. 383,611, No. 463,754, — and in such subdivision of the prior art tin- Chambers patent is placed in the third class, and that of Eberhard & Sehimkatt in' the second class.</p>

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

<p>1. Patents — Validity—-Description- or Principle ok Operation.</p> <p>Where a patentee has invented and described a successfully operating machine, which accomplishes the results sought, it is immaterial whether or not his attempted description of the principios by which such results were attained is correct, as the fact that he did not understand the scientific principles of operation does not deprive him of the right to protection.</p> <p>2. Same -Water Meters.</p> <p>The Nash patent, No. 547,378, for a disk water meter, claim 1, construed, and held valid, when limited to substantially the construction shown in the drawings. Claim 3, which covers a nutating piston or disk having ports, held void for lack of novelty. Claim 1 also held infringed.</p> <p>3. Same.</p> <p>The Nash patent, No. 527,535, for a disk water meter, claims 1 and 2, which relate to the location and simpe of the ports in the nutating disk, if broadly construed, were anticipated, and, if narrowly construed, are void for lack of invention.</p> <p>4. Sami: — Threatened Inerinoement — In.iünctio.ní.</p> <p>Where a defendant made patterns and castings therefrom which embodied an infringing device, and assembled sis. machines, which were placed in stock, a sufficient intention to infringe is shown to warrant a court in granting an injunction against tlie threatened infringement.</p>

<p>Maritime Liens — Demurrage—Sufficiency of Liber.</p> <p>A libel which alleges that libelant hired a lighter to persons engaged in furnishing a cargo of lumber to be loaded on a vessel, and that the lighter "was detained by the master of the vessel, not on account of the hirers, but for the benefit of the vessel,' for 14 'days after the expiration of the time allowed by the custom of the port for unloading it, but which contains no averment,as to whos.e duty it was to unload it, and avers no contract with the vessel or her master, is insufficient to state a cause of action-in rem against the vessel for the demurrage. 1</p>

<p>1. Removal op Cause to Federal Court — Subject-Matter.</p> <p>2 Burns’ Rev. St. 1894, § 362!) et seq., prescribes the various steps for appropriating’ real estate for opening a street, commencing with a. reference by the common council to the city commissioners of the question of expediency of the appropriation, and making their determination of that question, when approved by the common council, conclusive, and providing that approval by the common council of the report of the commissioners as to benefits and damages shall be a final Judgment with respect thereto, from which appeal may be taken to the circuit or superior court of the county, on which appeal may be considered only the questions of the regularity of the proceedings and the amount of benefits or damages, blit, as to these, “issues of law and of fact may be formed, tried, and determined as in other actions at law.” Held, that such appeal is not ⅛, mere proceeding for condemnation, but presents, so far as the subject-matter is concerned, an' action at law, properly cognizable in a federal court, and therefore removable there if the other Jurisdictional requisites exist.</p> <p>2. Same — Oiuíun' of Cause.</p> <p>That the stale law requires the questions of law and fact involved in a case io he brought into a court of the state by appeal, instead of by summons or other process, does not affect the question of right to have the case removed to a federal court.</p> <p>3. Same — DivFRsri y of (Jrr’zr..xs¡m’ — Prejudice.</p> <p>Under Judiciary Act 1887-88, § 2, a, cause may be removed from a state to a federal court for prejudice or local influence only where there is a diversity of citizenship between the parties, the right of removal being limited to suits of which the federal court is given original jurisdiction by the preceding section, and such diversity of citizenship being there required for such original jurisdiction.1</p>

Motion to set aside service of summons on the ground that defendant is a foreign corporation, and the person served was not an officer or director of the company. Preliminary objection that the petition for removal did not contain averments as to what was the citizenship of defendant when action was begun.

<p>Removal or Causes — Time ok Application.</p> <p>Tlie extension of time to answer after default, when summons had been served, extended the time for removal from state to federal court</p>

<p>1. Removal of Cactus — Effect of Denial ok Motion.</p> <p>The filing of a proper petition and bond for removal by a defendant entitled thereto effects such removal, and deprives the state court of further jurisdiction; and the fact that it makes an order denying the petition, and proceeds to try the cause, and that defendant participates in such trial, does not affect the jurisdiction of the federal court, acquired by the timely filing of tlie record therein.</p> <p>3, ¡Same — Part* Entitled to Remove — 'Defendant in Condemnation Pno-CEKDINUS.</p> <p>The provisions of the Iowa constitution, as construed by the supreme court of the slate, entitle a landowner to a trial by a jury of 12 men on the question of just compensation for land taken by a railroad company under the power of eminent domain. The statutes provide that on the application of either the landowner or the company (he sheriff shall appoint six commissioners, who shall assess the landowner’s damages, and that on the deposit of the amount so awarded the company shall have the right to take possession of the land. They further provide that either party may appeal from such award to the district court, where the question of damages shall be tried by a jury, and that in such case 1lie landowner shall be plaintiff and the corporation defendant. Held that where the landowner alone appeals from such an award, the company is not only nominally, but in fact, the defendant in the district court, and entitled to the rights of a defendant under the federal removal statutes, without regard to which party'made the application on which tlie comm s-áionors were appointed; the proceeding in the district court being the first m which tlie rights of the parties can be determined by a constitutional jury.</p> <p>3. Same — Suits Removable — Condemnation—Pkooebdings.</p> <p>A statutory proceeding in a state court to determine the damages sustained by a landowner by reason of the taking of his land under üm power of eminent domain is a suit of a civil nature at law, and removable under section 2 of the federal judiciary act of 1887-88, where the other requisite facts exist.</p> <p>4,- Same — Special Proceedings.</p> <p>That a statutory proceeding is required by the state statute to be brought in a particular court, and could not have been originally brought in a federal court, does not affect the right of the defendant to remove it to that court, where it is in the nature of a civil action at law, made removable by the federal statute.</p>

<p>Equity Pleading— Striking Out Plea for Insufficiency.</p> <p>A motion to strike a plea from the files for alleged insufficiency denied.</p>

<p>1. Corporation must Use Diligence to Make Authorized and Prevent Unauthorized Transfers of Stocks.</p> <p>It is the duty of every corporation to use reasonable diligence in each case to ascertain whether or not a transfer of stock requested is duly authorized by the former owner, to make transfers so authorized, and to prevent those unauthorized; and for every breach of this duty it is liable to the injured party for the damage it inflicts.</p> <p>2. Trustee Presumptively Has no Power of Sale.</p> <p>The legal presumption is that a trustee has no power to sell or transfer the subject of his trust.</p> <p>3. Record of Title in Trustee — Notice.</p> <p>A corporate record and certificate of ownership of stock by A. B., trustee, is notice to the corporation that he holds it, without the power of disposition, for some cestui que trust.</p> <p>4. Transfer without Inquiry for Assent of Cestui Que Trust TSmwligenck.</p> <p>It is actionable negligence for the corporation to cancel the certificate and transfer the stock on the signature of the trustee to the assignment, without any inquiry for the cestui que trust, or for his assent to the transfer.</p> <p>5. Local Custom Violative of Law Inoperative..</p> <p>A local custom of dealers in a place where a sale is made, which violates a well-established principle of law, and changes the nature and obligations of the relation of two parties to each other, is inoperative unless known and assented to by both.</p> <p>(Syllabus by the Court.)</p>

The trustee for the mortgage bondholders 0of the defendant railroad company instituted this action to foreclose the mortgage, default in the payment of the interest having been made.

<p>1. Attorney’s Fres — Stipulation in Mortgage.</p> <p>3 Burns’ Rev. Si. 1891, § 7532, declaring void any agreement to pay attorney’s fees, depending on any condition therein set forth,'.and made part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness, does not apply to a mortgage stipulating for attorney’s fees in ease of foreclosure, the bond secured thereby being , the written evidence of indebtedness.</p> <p>2. Judicial Notice — Federal Courts.</p> <p>Federal courts take judicial notice of the statui.es of the several states without their being pleaded.</p> <p>8. Contracts — By What Law Governed.</p> <p>It being provided in the by-laws of a building and loan association that all contracts made by or with It shall be deemed to have been made at its home office in Illinois, stipulation in a. mortgage given it by a member, on land in Indiana, for attorney’s fees in case of foreclosure, conforming in its terms to the laws of Illinois, though not to those of Indiana, is good; it not being against the public policy of Indiana to contract in a mortgage for an attorney’s fee for its foreclosure.</p>

In Equity.- On motion by plaintiff for the appointment of a receiver to take possession and charge of a certain certificate of stock in controversy in the suit.

<p>Receiver— Grounds for Appointment — Denial of Allegations of Bill.</p> <p>A court will not appoint a receiver for a corporation on a preliminary application by a bondholder, where all charges of fraud and mismanagement, and all allegations which would authorize the appointment, are denied, but will postpone action until a hearing on the evidence.</p>

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

There is, at or near the border line between the states of Virginia and West .Virginia, a large, bold spring of pure water, known as the "Beaver Pond Spring,” which has as an outlet, a creek called the “Beaver Pond Creek.” This creek, shortly after it leaves its source, enters the land of Walter M. Sanders, complainant helow, appellant here.

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

<p>1. Municipal Bonds — Repeat, of Statutory Provisions for Payment — Mandamus to Enforce Judgment.</p> <p>Where the legislature of a state has authorized a municipality to issue bonds, and provided in the same act for the levy and collection of taxes to pay the principal and interest of the same, such provision becomes a part of the contract on the issuance of the bonds, which cannot be impaired by any subsequent legislation; and a federal court which has rendered a judgment against the municipality on such bonds or their coupons may compel the levy of a tax for its payment by mandamus, notwithstanding the attempted repeal of the provisions therefor by the legislature.</p> <p>2. Constitutional Law — Impairing Obligation of Contracts — South Carolina Statute.</p> <p>The acts of the legislature of South Carolina prohibiting the levy of any tax to pay township bonds issued in aid of a railroad, except in certain cases, or any judgment rendered thereon, and repealing all acts inconsistent therewith (22 St. at 'Large, p. 534; 23 St. at Large, p. 78), are in violation of the constitution of the United States, as impairing the obligation of contracts, and void, in so far as they affect bonds in the hands of bona fide holders, which were issued under prior statutes providing for the levy of taxes for their payment; and they constitute no defense to a proceeding in a federal court for a writ of mandamus to compel the levy of ¿ tax to pay a judgment of such court rendered upon such bonds.</p> <p>3. Municipal Bonds — Mandamus to Enforce Judgment — Levy to Pay Ar-rearage of Interest.</p> <p>It is no defense to a proceeding for a writ of mandamus to compel the levy of a tax to pay a judgment rendered on municipal bonds that the act under which bonds were issued required the levy of an annual tax to pay the interest and create a sinking fund to pay the principal, and that the municipality has failed to make such annual levies; and the writ may command a single levy to meet the entire judgment.</p>

Action by the Pfaudler Vacuum Fermentation Company against the Braddock Brewing Company and another. From a judgment for plaintiff the defendants bring error.

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

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

Action to recover the value of certain cotton alleged to have been misdelivered and converted by defendant, in violation of the rights of plaintiff as owner by virtue- of bills of lading therefor.

<p>Libel — When Publication Actionable.</p> <p>Publication by a newspaper that plaintiff was, 30 years before, the center “of the most gigantic conspiracy ever known in Wall street, and resulted in the events culminating in Black Friday,” is actionable as tending to scandalize the plaintiff, and injure his personal as well as his pro-fessiofial reputation, though it does not charge a crime or misdemeanor.</p>

<p>Judgment — V acatino.</p> <p>A decree cannot be vacated six terms after entry, for errors of fact or law, except clerical mistakes only.</p>

<p>1. Life Insurance — -Vested Interest of Beneficiary.</p> <p>The beneficiary in a life policy bas no vested interest in It during the life of the insured; it being issued by an association doing business under Laws N. Y. 1883, e. 175, § 18, providing that membership in the association shall give a member the right at any time, with the consent of the association, to make a change in his beneficiary, without requiring the consent of the beneficiary.</p> <p>2. Samis — Substitution of Policy.</p> <p>The substitution of a new life policy for an old one, in accordance with an agreement therefor, is completed, the old policy being surrendered, and tbe new policy being delivered by mail without payment of premium being exacted, though the latter provides that it shall not take effect till delivery in person and payment in cash, while the old policy is in full force; the provision being one for the benefit of the insurance company, which it was not bound, to insist on, and which it waived by delivering the policy as it did.</p> <p>3. Same — Consideration.</p> <p>The consideration recited in an agreement for substitution of life policies, that the surrender of the old policy is in consideration of the issuance of a new one on different terms, is sufficient.</p>

This was an action to recover for an injury happening to the plaintiff a.t By tie Post Office, near Battlefield, Ga., a station on the Chattanooga, Rome & Southern Railway. The injury was received under the following circumstances: Some distance south of the passenger depot at this point, variously stated at from 60 to 600 feet, the Southern Express Company, by permission of the railroad company, had erected a building for the reception and delivery of express packages.

<p>1. Master and Servant — Assumption op Risk.</p> <p>A minor employed as a servant assumes, to the same extent as au adult, the ordinary dangers and risks of his employment: which he actually knows and appreciates, and those that are so apparent and open that one of his age, experience, and capacity would, in the exercise of ordinary care, know and appreciate them.</p> <p>2. Peremptory Instruction — Preliminary Question for Judge before Submission to Jury Always Arises.</p> <p>At the close of the evidence there is always a preliminary question for the judge before the case can he properly submitted to the jury, and that Is whether or not there is any substantial evidence upon which the jury can properly return a verdict in favor of the party who produces it, and, if there is no such evidence, it is the duty of the court to direct' the jury to return a verdict against him.</p> <p>8. Minor Asst mbs Risk of Slippery Floor.</p> <p>A minor who for four weeks had been working upon a block fourteen inches square and five inches in thickness, placed upon a wet, greasy, and slippery floor by himself, assumes the risk and danger of the slipping of the block upon the greasy floor, by means of which his hand is involuntarily thrown into the cylinders of a chopping machine.</p> <p>(Syllabus by the Court.)</p>

<p>Breach op Cohtraot — Pi/eading.</p> <p>A complaint in an action for breach of contract, under which plaintiff was to furnish machinery to defendant for shipping, in accordance with shipping instructions, on notice that the machinery was ready, which alleges notice of readiness, without an allegation of readiness in fact, is demurrable.</p>

<p>Pl.BADIVG— DkMURRBH— COSTS.</p> <p>Where demurrer to answer is carried back to the complaint, and plaintiff asks leave to amend, taxable costs of the demurrer on leave to amend fall on plaintiff.</p>

<p>1. Possession of Tenant — Evidence.</p> <p>Upon the issue whether or not third persons in possession of leased premises during a certain term were holding under the lessee, testimony that they were holding under void leases from other parties for which they paid the rent, and the void leases themselves, are competent evidence.</p> <p>S. Agency — Evidence.</p> <p>One who has no knowledge of a contract of agency between a principal and an alleged agent, no knowledge of any authority from her to the agent, and no knowledge of any assent by her to any act of her alleged agent in her behalf, is incompetent to testify to the alleged agency.</p> <p>3. Trustee — Estopped.</p> <p>A trustee authorized to collect rents for, and to distribute them among, his cestuis que trustent, who directs the occupants of trust lands to pay the rents for a term to a representative of the cestuis que trustent, is thereby estopped from collecting rents for the same premises for the same term from a lessee to whom he does not deliver possession.</p> <p>4. Lands in the VVinnf.isaoo Indian Reservation Held in Trust.</p> <p>The United States hold the lands in the Winnebago Indian reservation an Nebraska in trust for the Winnebago tribe of Indians and its members, .and they are the parties entitled to the use, benefit, rents, and profits thereof.</p> <p>'(Syllabus by the Court.)</p>

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

<p>Petition for Revision of Proceedings of the District Oonrt of the United States for the Northern District of Ohio, in Bankruptcy.</p>

<p>Bankruptcy— Revisory Jurisdiction — Courts in Indian Territory.</p> <p>Bankr. Act 1898, §.24b, which provides that “the several circuit courts ' of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their-jurisdiction,” confers such power only as to such inferior courts as were at the time of the passage of the act within their appellate jurisdiction; and the circuit court of appeals of the Eighth circuit has no revisory jurisdiction over the proceedings of the courts of bankruptcy in the Indian Territory, the court of appeals for the territory alone having appellate jurisdiction over such courts since its creation in 1895. 1</p>

<p>Bankruptcy-— Execution against Surety — Injunction.</p> <p>At date of adjudication in bankruptcy there was pending against bankrupt in a state court a suit in which a ball bond had been taken, and to protect the surety on the .bond the bankrupt had deposited with him a sum of money. After adjudication the plaintiff in the suit proceeded to judgment, and took out execution, "and sought to enforce it against the surety on the bail bbnd. Held, that the enforcement of such judgment and execution will not be restrained, though by Bankrupt Act, § 11, the federal court has power to stay suits against bankrupts, and it is alleged that the bankrupt, has a good defense to the original’action, the state court having refused-to reopen the case.</p>

<p>1. BANKRUPTCY —EXEMPTIONS.</p> <p>The burden of showing that an article alleged to be exempt is within 1lie provisions of the statute rests on the bankrupt.</p> <p>2. Same — Watch.</p> <p>A wat cli is not “necessary wearing aiiparel,” within Pub. St. Mass. c. 171, § 34, and exempt from execution.</p> <p>3. Same.</p> <p>Without proof that a watch belonging to a bankrupt is necessary to him in bis trade as plumber, it is not exempt, under Pub. St. Wass. c. 171, ⅛’ 34, cl.,5, as “the tools, implements, and fixtures necessary for carrying on bis trade or business.”</p>

<p>1. BANKRUPTCY- Petitions- En.rtjo.</p> <p>All petitions in bankruptcy proceedings should be filed with the clerk, and not sent, directly to the judge.</p> <p>3. Same — -Notice.</p> <p>A petition by a. bankrupt asking a special reference to the referee, requiring him to take proof and report whether or not lie is entitled to be discharged, will not be considered until trustee or creditors have notice of petition.</p>

In Bankruptcy. Application to stay sale of real estate. ■The bankrupt’s trustee being about to offer for sale an alleged interest of the bankrupt in certain real estate in Brooklyn claimed to have vested in the bankrupt under the will of his grandfather, John Hedden, application was made to the court to restrain the sale on the ground that the bankrupt has no vested or alienable interest therein.

<p>Appeal by tbe United States from a Decision of tbe Board of United States General Appraisers.</p>

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

This cause, was tried by the court on an agreed statement of facts. The action is brought to recover the sum of $209.06, with interest from August 10, 1899, paid, as alleged, under protest, to the commissioner of internal revenue by the plaintiff.

<p>1. Witness — Refreshing Memory.</p> <p>A teller in a bank, testifying to checks on it, may refresh his memory by examining entries in its books, though some of them were not written by him.</p> <p>2. Banking Laws — Violation—Intent—Evidence.</p> <p>As evidence that overdrafts on a bank by its president were made with intent to abstract or misapply its funds it may be shown chat at the time of the overdrafts it was hopelessly insolvent, that this was due to its assets being notes of wholly irresponsible persons, and that these notes had been used by the president in connivance with the cashier, who was a director, and another director, to give him a fictitious credit.</p> <p>8. Same.</p> <p>On the question of whether or not a bank president is guilty of abstracting ot misapplying its moneys, it is immaterial that he drew out some of it for his children.</p> <p>4. Same.</p> <p>The acts and intent of the president of a bank in obtaining money from it on worthless securities, being such as to make him guilty of embezzlement, abstraction, or willful misapplication of its funds, it is immaterial that his acts were permitted, sanctioned, or ratified by the other officers of the bank, with knowledge of the facts.</p> <p>5. Same.</p> <p>Though the president of a bank, in appropriating and converting its funds to his own use, does it in such a way that it can be easily discovered, and he is liable to a civil action, and does not abscond, or otherwise avoid the civil suit, he may be convicted of embezzlement.</p> <p>6. Criminal I.vnr- í'haroe on I videm”--.</p> <p>It is within the discretion of the judge to refuse to charge that there is no evidence in the case justifying a conviction.</p> <p>7. Same— Expression of Opinion isv Judge.</p> <p>An expression of opinion by the judge that defendant is guilty is not error, he having camioned the jury that they were the sole judges of the facts, aruj should not be governed by the opinion of the court.</p> <p>8. Banking 'jaws — Violation —indictment.</p> <p>An indictment under the national banking laws, wliicli, following the words of the statute, charges the president of the bank with embezzling, abstracting, and misapplying moneys, funds,, and credits of the hank at various times, need not specify how much was moneys, how much funds, and how much credits.</p> <p>9. CRIMINA!, I.AW — i’ENTKNCK—Becoiid.</p> <p>The record in a misdemeanor case not showing that defendant was present when sentenced, the case will be remanded for new sentence.</p> <p>Goff, Circuit Judge, dissenting.</p>

<p>• 1. Unfair Competition — Similarity of Packages — Evidence of Intent.</p> <p>.Where the designer of a package for use by one manufacturer admittedly bad before liim the package in prior use by another manufacturer, and the similarity between the two packages is such as is well calculated; to confuse or deceive retail purchasers, his testimony that his entire effort .yvas to “individualize his own goods” is not persuasive, and will not be accepted as sufficient, on a motion for a preliminary injunction, to refute the charge of unfair competition, which appears, from a comparison of ;he- two packages, to be wéll founded.1</p> <p>2. Same — Preliminary Injunction against Seller.</p> <p>It is no sound objection to the granting of a preliminary injunction against unfair competition by the simulating of complainant’s packages that defendants are sellers only, and not the manufacturers, where the manufacturer has been advised of the suit, and given an opportunity to be heard, of which he has availed himself.</p>

In Equity. Motion for preliminary injunction against the use of the word “Junket.” The complainant sells “Junket Tablets”; the defendants, “Junket. Capsules.”

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

Appeals from tbe Circuit Court of tbe United States for tbe Eastern District of Missouri. In tbe year 1897 tbe Chicago Railway-Equipment Company brought a suit in equity in tbe court below against tbe Interchangeable Brake-Beam Company for the infringement of letters patent No. 486,218, issued to Henry B. Rob-isebung, for improvements in brake beams.

<p>1. Patents — Validity—Second Patent for Same Intention.</p> <p>A patent for a generic invention is not rendered invalid by the prior issuance to the same inventor, but on a later application, of a patent for a specific device for practicing such generic invention, in the nature of an improvement on the device described in the first application, where there is no waiver or abandonment of any of the claims made in either application.</p> <p>2. Same — Electric Power Transmission — Split-Phase Motors.</p> <p>The Tesla patents, No. 511,559, and No. 511,560, relating to electric power transmission by the use of the alternating current, and which describe what is known as the “Split-Phase Motor,” and the method of its operation, were not anticipated by any prior invention of the patentee, but mark a distinct advance in the art which involved invention. Claims 1 and 2 of the first patent, and claims 1, 2, and 6 of the second, held, infringed.</p> <p>8. Same — Contributory Infringement — Process Patent.</p> <p>A defendant must he held guilty of infringement of a process patent where it admits having manufactured for sale and sold machines which necessarily involve such process in their operation; the presumption being that such machines were used by the purchasers, and that defendant intentionally contributed to such use.1</p> <p>4. Same — Selling Element of Patented Combination.</p> <p>Where a defendant admits having manufactured and sold one element of a patented combination, which is not shown to have any commerc al value except as a part of such combination, the inference is that it was sold for such use, and that he is guilty of contributory infringement.</p>

<p>Patents — -Invention—Electro-Magnetic Motors.</p> <p>The Tesla patent, No. 101,520, claim 1, which describes a method of operating synchronizing motors, by which, through changes in the circuit connections, such a motor may be converted at will into a double-circuit motor, to enable it to start itself, discloses invention, and is valid. Also, held infringed.</p>

<p>Patents — Suits fob Infringement — Enjoining Suits in Other Jurisdictions.</p> <p>A court in which a suit is pending for infringement of a patent, brought by a nonresident Corporation against the manufacturer of an alleged infringing article, will not undertake to enjoin the further prosecution by complainant of suits in other'' jurisdictions against sellers ort users of such article until it shall have determined the validity of the patent, since it would be powerless to enforce such an order if made, having no jurisdiction over the complainant or its officers except for the purposes of the suit pending before it. At least, such an order should not be made unless a clear case of oppression is shown.</p>

<p>1. Patents — -Validity—Antioti’Atton.</p> <p>The fiundlacli patent, No. 526,486, for a medicine or sample case, held not anticipated and valid.</p> <p>2. Same — Infringement.</p> <p>The Gundlacli patent, No. 526.486, for medicine or sample case, held infringed by a structure substantially like that of the patentee, doing the same thing for the same purpose, in a substantially similar manner.</p>

<p>1. Patents — Invention—Store-Service Apparatus.</p> <p>The McCarty patent, No. 325,618, for a store-service apparatus, claims 16 and 17, held, void on demurrer to a bill for infringement for lack of invention apparent on their face.</p> <p>2. Same — JumciAi, Notice op Prior Art.</p> <p>In determining the validity of a patent on demurrer to a bill for its infringement, the court may take Judicial notice, as a part of the prior art, of a mode of suspending lamps in railroad cars and in hand lanterns, which has been long in common and public use.</p>

<p>1. Infringement of Patent — Kquity Jurisdiction.</p> <p>Tlie fact that, at time of suit brought to restrain infringement of a patent, the infringement liad ceased, and the patent expired soon after the suit, without application for injunction, was brought, did not take away jurisdiction in equity, and leave plaintiff only to his remedy at law for damages.</p> <p>H. Same.</p> <p>Farnum patent, No. 213,642, for an improvement in ball toys, held infringed by Shattuek patent, No. 485,713.</p>

<p>1. Admiralty — Jurisdiction—Maritime Contract.</p> <p>A contract by which a steamship company agreed to reserve space for certain cargo for foreign shipment, and the other party bound itself to furnish such cargo at a specified rate of freight, is maritime in its nature, and an action to recover damages for Us breach is within the jurisdiction of a court of admiraity.1</p> <p>S. Shipping- (Ioxtii.v t kor Cargo Kitaob- Co&xKczum Links.</p> <p>An engagement of cargo space from a steamship line foi* a shipment of cotton at an agreed rate oí freight, ñaue by a company operating a connecting lino, constitutes a contract, which binds the latter to furnish the cargo, or respond in damages, although it was in fact made in behalf of a third party intending to make a through shipment over both lines, where such fact was not disclosed.</p>

<p>1. Admirat/l'y — Jurisdiction.</p> <p>IVliere a steamship company, in accordance witli its custom to receive passengers’ baggage at its pier for transportation by its steamer, in anticipation of tickets to be obtained and afterwards presented, there receives baggage of a passenger, and gives him a receipt therefor, and lie soon afterwards purchases a ticket, and presents it, with the receipt, but the baggage cannot be found, admiralty has jurisdiction of an action for its loss; its reception forming part of the maritime contract from the time of the purchase of the ticket.</p> <p>2. Passkxokh’s Bahc.age — Loss by T'Teoi.igum'K</p> <p>The loss of a passenger's baggage is presumptively by negligence of the carrier, it having- been delivered into the custody of its proper agent, and no excuse being- given for its disappearance.</p>

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

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

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

<p>Mastek and Servant — Injury of Servant — Defective Appliances. .</p> <p>Libelant, a coal passer on a steamship, was assisting in removing ashes from the lire room, lie lilted buckets, which were then hooked to a chain, and drawn up through a ventilating shaft by means of a hand windlass by another member of the crew on the deck, who emptied the bucket, and again lowered it. An empty bucket falling down' the shaft struck and injured libelant. He claimed ihat the bucket caught on one of several nuts that projected about half an inch into the cylinder of the shaft, and thus became detached from the hook; and that the ship was negligent in permitting the presence of the nuts, and in not providing a more secure hook. Held, that the court.could not infer that the accident happened as alleged; and, in the absence of any proof as to the conduct and care of the man on deck, or that the bucket was in fact attached to the chain, and not accidentally dropped from the deck, the injury could not be charged to the improper construction of the shaft or hook.</p>

<p>.* .Libel by the crew of the steamship Charles I). Lane, who were discharged upon the return of the vessel to port in a disabled condition, after encountering a storm. The libelants were paid for the time of actual service!, and at the time of receiving payment signed an agreement before a shipping commissioner, releasing the vessel, her, master and owners, from all liability on account of their contract. On final hearing.</p>

<p>1. Shipping — Bottomry—Necessity.</p> <p>Where a vessel carrying passengers was so destitute of provisions that passengers and crew were put on short allowance, and very little remained when she reached an intermediate port, and the master was without money, and unable to obtain credit at such port, or to communicate with the owners or charterers within a reasonable time, the ease was one of'such necessity as justified his giving a bottomry bond on the ship for the money required.</p> <p>2. Same — Requisites and Validity op Bond.</p> <p>A bottomry bond, which does not purport to create any personal liability, and which is payable five days after the arrival of the ship at her port of destination, expresses a contract by which the debt is subject to the maritime risk essential to support such a bond.</p> <p>3. Same — Exaction of Premium.</p> <p>The exaction óf a premium of 10 per cent., besides interest, on the amount loaned on a bottomry bond on a bark having several hundred miles to sail before completing her voyage, is not so extortionate as to invalidate the bond.</p> <p>4. Seamen — Wages—Overtime.</p> <p>Seamen serving under entire contracts, either by the month or for the voyage, are not entitled to a lien on the vessel for overtime on account of services rendered on Sunday or at night, where the work performed was not outside their proper duties under their contracts, notwithstanding a promise by the master to pay them for such overtime.</p> <p>5. Maritime Liens — Services as Watchman.</p> <p>A watchman employed for a vessel by the master by the day for no definite period is not entitled to a lien on the vessel for wages on account of services rendered under such contract after the vessel has been taken into legal custody.1</p>

<p>Colmston — Excessive Speed — Foa</p> <p>A lug returning from sea, witli two dumps in tow on a hawser collided at about J2 midnight, in a thick fog, with a ferryboat. Both boats gave proper signals, which were heard by each some four or live minutes before the collision, which occurred at about right angles. Each claimed that bis own boat was stopped at the time of the contact. This evidence was rendered improbable from the severe injuries suffered by both vessels. The lights of the colliding vessels were discovered at a distance of from 100 to 200 feet. Held, that both vessels were in fault, in not srdUciemly reducing their speed so as to have been able to come to a full stop after the discovery of the lights.</p>

<p>Jurisdiction of Fudbrai, Courts — Amount m Controversy — Taxpayer's Suit to Enjoin Contract by City.</p> <p>In a suit by a property owner and taxpayer in a city against llie city and a bidder for public work to enjoin tliem from entering into a contract for such work, the value of the contract, and not the amount of the tax complainant may be required to, pay if the contract is performed, is the sum or amount in controversy, for the purpose of determining the jurisdiction of a federal court.1</p>

<p>Appeal from the Circuit Court of the United States for the District •of Forth Dakota.</p> <p>rI'he: leading- facts on which this case turns are as follows: On the 21st day of May, 1891, George P. Griffith and Elmer L. Signor ■ entered into a contract, by the terms of which Griffith agreed to si'll to Signor a certain section of land in North Dakota for 87,0-10, to be paid In the lime and manner following: The purchaser agreed to break 300 acres of the land prior to the 10th of .July, 1891, and that he would “cultivate and raise yearly Uieremx and thereafter a crop of wheat,” and that he would “deliver one-half of ail the crop of wheat raised on said premises annually, commencing with the year 1892, and until the full sum of 87,040, with interest thereon at the rate of seven per cent, per annum from and after April l, 1892, shall hare been paid.” It was further stipulated that the seller reserved “the right to have and hold a lien upon all the crop of grain to be grown and raised upon said hind, and any and all portions thereof, during the life of this agreement, to secure the conditions contained herein, and to secure the prompt and faithful performance of all the stipulations and agreements and promises of the party of the second part.” And it was further stipulated that the instrument should constitute a “mortgage to the said party of the first part, all of the crop and crops of grain, of whatsoever name or nature, to be grown, sown, raised, and harvested upon the said lands, and the whole thereof, during the years 1892, 1893, 1891, and 1895.” Signor entered into the possession of tlie land under the contract, and continued to occupy and cultivate it until the 9th day oí May, 1897, when he leased it for one year to G. Lee Clark, the appellant, who entered into the possession thereof under the lease, which by its express terms expired on the 9th day of April, 1898. This lease1 provided that the lessee should sow and plant the land to wheat, and pay for rent of the land during tlie season of 1897 ono-lialf of the crop of wheat grown thereon, according to the terms of the contract between Griffith and Signor above mentioned. The rent of that year was paid, and is not here in controversy. On tlie 15th day of July, 1897, Griffith conveyed the land by quitclaim deed to Christopher IT. Anheier, as receiver of the Citizens’ National Bank of Fargo, N. I)., tlie appellee, subject to the rights of Signor under his contract with Griffith: and by the same instrument Griffith assigned and transferred to the appellee all his rights under that contract. On the 9th day of April, 1898. Signor conveyed the land by quitclaim deed to <3. Lee Clark, tlie aripellant. It is claimed by Clark that this deed, though absolute in form, was in fact a mortgage to secure the payment of an indebtedness owing by Signor to Clark, and that his possession of the land for the year 1888 was as mortgagee under this deed, and not otherwise; and the controversy in this case is over one-half of a crop of /lax raised on the land by Clark in 1898. On the 25th day of March, 1899, the appellee, for the consideration of «86,000, conveyed the land to Bopliia A. Signor'. The amended hill on which the case went to final hearing and comes before this court was filed by Christopher H. Anheier, as receiver of the Citizens’ National Bank of Fargo, N. D., against G. Lee Clark on the 30th of June, 1899. It alleges, on Information and belief, that tin1 defendant, Clark, cropped the premises during the year 1898 by virtue of the contract entered into between him and Signor, whereby the land was leased by Signor to Clark for the year 1897. It also contains an averment to the effect that it was agreed between the complainant and defendant that a crop of 11 ax was to he put in on the promises during the year 1898. Tlie bill prays Hint it may be decreed that under the contraet of lease between Signor and Clark the complainant has a lien upon the crop of flax raised upon the land by the defendant. Clark, in the year 1898, and prays a foreclosure of the same. The averments of the bill are denied by the answer. The circuit court entered a decree as xirayed for in the bill, and the defendant appealed.</p>

<p>1. Appeal — Waiver op Right.</p> <p>The right to appeal from a final decree dismissing a bill at the end of the time specified in an order sustaining a demurrer thereto, and granting-leave to amend, is not waived by electing to stand on the bill as it was,, instead of amending it within the time limited.</p> <p>2.. Parties Dependant — Trustee Holding Legal Title.</p> <p>Where the complaint avers that the legal title to property in controversy is vested in one who is not a party to the suit, the necessity of making him a party is not dispensed with by an averment that his interest is. that of a trustee for the defendant.</p>

<p>Trusts — Accounting—Trustee’s Fraud — Assignment to Trustee — Vacation —Return of Consideration.</p> <p>Where one bolding property in trust to apply 'tbe income thereof to the use of the cestui procured an assignment and release from the cestui for $2,500 paid, and -there had been and were sums falling due on account from the trustee, a return of the consideration paid would not be required in tbe first instance in ¾ suit to set aside such transaction for fraud, but an account would be ordered, and not more than the balance of tbe $2,500 over the amounts due the cestui would be required to be returned before final relief.</p>

<p>Conclusion of Court on Demurrer.</p>

<p>1. National Banks — Stockholders’ Liability — Assessments.</p> <p>Under the national hanking act (Eev. St. § 5151), requiring that the shareholders of every national hank shall be held individually responsible, equally'and ratably, and not one for another, for all debts of the bank, to the extent of the amount of their stock, at the par value thereof, in addition to the amount invested in such stock, a stockholder cannot be required to make good the failure of another stockholder to pay his assessment; and, where an assessment has. been made, it must be considered, for the purpose of making a second assessment, as if the entire assessment had been paid.</p> <p>8. Same — Loss by Receiver — Additional Assessment.</p> <p>Where stockholders of a national hank have paid an assessment to a receiver of the bank, the receiver becomes the trustee of the creditors; and any loss he may sustain by investments, in endeavoring to save the debts of the bank, cannot be charged to the shareholders, and made the subject of an additional assessment.</p>

These cases involve a construction of certain oil leases upon the lands of one William E. Fowler, in North Township, Harrison county, Ohio, and may be considered together. On the 12th of November, 1898, Fowler made a lease of the land in question to one I-Iiram Snyder. This lease was acknowledged by Fowler and wife and Snyder before a notary. It had hut a single witneas.

<p>1. Pheliminaky Injunction — Grounds.</p> <p>The prerequisites to the allowance of a preliminary injunction are that the complainant must generally present a clear title, or one free from reasonable doubt, and set forth acts done or threatened by defendant which will seriously or irreparably injure his rights under such title, unless restrained.</p> <p>3. Same — Corporations—Suit by Stockitoi/debs.</p> <p>A bill alleged that complainants were minority stockholders, owning less than one-third of the stock of a railroad company which had leased its property to defendant company for a share ol' the gross earnings, and that under the agreement two-thirds of the stock liad also been transferred to the control of defendant; that defendant had failed to credit the lessor ■with its proper share of the earnings, and to avoid payment of future rentals had devised a scheme for the consolidation of the two companies, which it had caused to he ratified by the holders of two-tliirds of the stock of each company, and had issued additional stock, which, under the consolidation agreement, was to he exchanged for the stock of the lessor. It further alleged that the consolidation was ultra vires, and in fraud of complainants’ rights, and prayed that its consummation he enjoined, that the provisions of the lease he enforced, and for an accounting in respect to the earnings of the leased property. It appeared that the consolidation had been formally perfected in accordance with the laws of the state in which the companies were incorporated. Held that, conceding the sufficiency of the bill to entitle complainants to relief, the facts shown did not authorize the granting of a preliminary injunction, since the consolidation could only he annulled on the ground that it was ultra vires and void, or voidable, as in fraud of the rights of the minority stockholders, and In either case no action which could he taken by defendant pending the suit could prejudice complainants’ rights.</p>

This was an action brought by the plain ¡iff in error, as receiver of ihe First National Bank of South Bend, Wash., a corporation of that state, against the defendant in error, a citizen of the state of Washington, and a stockholder in said hank, for the recovery of the proportionate amount due on his stock of an assessment levied by the comptroller of the currency on the capital stock of said bank.

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

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

<p>L Life Insurance — Insurable Interest — Relationship.</p> <p>The mere relation of father and son is not sufficient to give an adult son an insurable interest in his father’s life, 1</p> <p>2. Same — Poor Law — Obligation to Support — Effect.</p> <p>Under the Pennsylvania poor law (Act 1836; P. L. 547, § 28), making the parents and children of every poor person liable to the district for the support of such person, an adult son has no insurable interest in his father’s life, except for the purpose of reimbursing himself for payments actually made, or to be made, for his father’s relief, and to protect himself against the loss of his father’s support, when there is a reasonable expectation that his father will be able to support him.</p>

<p>Life Insurance — Warranty—Breach of Warranty — Application to Another Company.</p> <p>Before insured made application for the life policy on -which suit -was brought, he had signed an application of another company, which had been forwarded to the company, and had substantially completed his medical examination, but afterwards refused to comply with certain physical tests required, whereupon the company formally rejected his application and notified him of the fact by mail. Thereafter he obtained a policy of defendant company, which provided that the application should be part thereof, and the application stated that all of defendant’s statements and answers therein contained would be deemed material, and any falsity therein would avoid the policy. Held, that a statement denying that insured had formerly made a proposal or application to any company, agent, or association on which a policy ha'd not been issued was substantially and technically false, and would avoid the policy.</p>

For former report, see 99 Fed. 534. This is an action by the beneficiaries named in a life insurance policy issued by the plaintiff in error. The case was tried before the court without a-jury. The policy was issued January 26, 1892. The first premium was then paid. The plaintiff in error is a corporation organized and existing under the laws of New York for the purpose of carrying on a life insurance business.

<p>1. Particular Recital Limits Following General Terms.</p> <p>Where general words follow a particular recital, the former are qualified and limited by the specific recital.</p> <p>2. “General Improvements, ” Following “the Purchasing of School-House Sites, the Erection of School Buildings, and, ” is Limited Thereto.</p> <p>Whore a legislative act authorizes the issue of bonds for the purchasing of school-house sites, and the erection of school buildings, a recital therein that the bonds are issued “for the purchasing of school-house sites, the erection of school buildings, and general improvements,” is no notice to a purchaser that they were issued for ¡my other purpose than the purchasing of the sites and the erection of the buildings, but the term “general improvements” is qualified and restricted to the preceding particular recital of the purpose of the issue.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal — Writ of Error — Stipulation—Waiving Jury.</p> <p>On a writ of error in an action at law tried in the circuit court without a jury, none of the questions decided at the trial can be re-examined, where the record does not affirmatively show that a jury was waived by written stipulation, as provided by Rev-. St. ¶ 649.</p>

<p>Insurance — Accident Policy — Demand to Dissect Body — Demurrer.</p> <p>In an action on an accident policy, which provided that any medical adviser of the company should he allowed to examine the person or body of the assured as often as he required in respect to the alleged injury or cause of death, the defendant answered that it had demanded the privilege of examining the body of the insured, and plaintiff had refused to allow the same. Plaintiff replied that the demand made was for her consent that the defendant might examine and dissect the body of the insured. Held, that a demurrer to the reply should he overruled, since the word “examine,” as used in a policy which insured against external accidental injuries only, would not ordinarily be understood to include dissection or an autopsy, and the language should he construed most strongly against the company.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>Suit by Tom G. Brady against the Berwind-White Coal-Mining Company. From a judgment for defendant, plaintiff brings error. Affirmed. .</p>

<p>1. Assignment for Benefit of Creditors — Return of Consigned Goods — Right of Consignor to Set-Off against Advances.</p> <p>A principal demanding a return of consigned goods from bis factor’s general assignee, upon which the factor had made advances, is not entitled to offset against such advances unmatured notes held by a third person made by the principal for the personal accommodation of the factor, and indorsed by him, especially when it does not appear that the notes had any relation to the business existing between the principal and factor.</p> <p>3. Payments — Right to Recover — Duress.</p> <p>Duress involves illegality, and where one having in his possession property of.another demands as a condition of its restoration the payment of a sum for which he is legally entitled to a lien thereon, the owner cannot be said to have made such payment under duress, so as to give him any right to its recovery on that ground.</p> <p>3. Bankruptcy — Right of Creditor to Preference — Disallowance of Offset, by Bankrupt’s Assignee.</p> <p>A general assignee of a factor came into possession of goods which had been consigned to such factor for sale, and upon which he had made advances. The consignor, a manufacturing corporation, demanded'a return of the goods, and claimed the right to offset against the advances received thereon the amount of certain unmatured notes, which it had given to the factor as a personal accommodation, and which had been indorsed by the factor, and discounted, and were then held by a third party. The as-signee, in accordance with his duty under the law, refused to allow such offset, and required the corporation to pay the full amount of the advances, which it did under protest. The factor was subsequently adjudged a bankrupt, and the property and money in the hands of the assignee were turned over to the trustee in bankruptcy. Having paid the notes on their maturity, the corporation presented a claim to the court of bankruptcy for repayment of the amount from the funds in the hands of the trustee. Sold, that as it was not entitled to an offset of the amount at the time it made the payment to the assignee, and the latter demanded and received only what he was legally entitled to, the corporation, by subsequently taking up the notes, acquired no right to reclaim any part of such payment, or to follow the money into the hands of the trustee, by whom it was rightfully received as a part of the bankrupt’s estate; and that there was no ground, either of fraud, duress, or mistake, which gave the corporation any equity to be preferred over the other creditors of the bankrupt.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy Law — Suspension of State Insolvent Laws.</p> <p>State insolvent laws were not suspended by the enactment of the present national bankruptcy law.</p> <p>2. Same — Proceedings under Assignment Law — Protest by Creditors — Ef-FBCT.</p> <p>A protest by creditors pending a determination on their petition for an adjudication of bankruptcy against their debtor, made in a state court, against further proceedings under an • assignment for creditors executed by their debtor before their petition was filed, does not have the effect of a writ of injunction from the federal court against such proceedings.</p> <p>3. Same — Assignee’s Right to Compensation.</p> <p>Where, pending an adjudication of bankruptcy on a petition by creditors of an insolvent, an assignee of the latter for the benefit of creditors under a state insolvent law made a beneficial sale of the insolvent’s estate, he is entitled to retain from the proceeds, as against the trustee, a reasonable sum allowed by the state court for the services of himself and his attorneys.</p>

<p>In Bankruptcy.</p>

<p>Motion to dismiss petition for review in bankruptcy, made ob ground that same had not been taken within 10 days, under sections. 25 of the bankruptcy act.</p>

<p>1. Bankruptcy — Jury Trials — Review by Writ op Error. [</p> <p>Bankr. Act. 1898, § 19a, gives a person against whom an Involuntary petition is filed the right to a trial by jury, if demanded, in respect to the question of his insolvency and any act of bankruptcy alleged in such petition. Section 6, cl. 1, of the act creating the circuit courts of appeals (20 Stat. 828) gives such courts “jurisdiction to review, by appeal or writ of error, final decision in the district court and the existing circuit courts in all cases other than those provided for in Iho preceding section of this act, unless otherwise provided by law.” Held, that the reviewing authority so conferred was wide enough to authorize that court to review the judgment of a district court entered on the verdict of a jury under sueis provision of the bankruptcy act, adjudging the person proceeded against a bankrupt, and to grant a writ of error therefor; that being, under the law and practice of the federal courts, the necessary and appropriate proceeding for such review.1</p> <p>& Same.</p> <p>Such jurisdiction to review the action of a court of bankruptcy by writ of error, where that is the appropriate proceeding therefor, ⅛ also within, or at least consistent with, that conferred on circuit courts of appeals by section 24a of the bankruptcy act of 1898, which invests them “with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate Jurisdiction in other cases.”</p> <p>8. Same.</p> <p>■ The trial of an issue of fact to a jury under Bankr. Act 1898, § 19a, Is a trial according to the course of the common law, and, under the seventh amendment to the constitution, cannot he reviewed by what is technically known as an “appeal,” but must be the subject of a writ of error, as that writ was known at the common law, upon which questions of law arising upon the face of the record, and rulings of the court excepted to and preserved by bill of exceptions, can alone be considered; and the power of the reviewing court is limited, so far as the issue of fact is concerned, to the awarding of a new trial.</p> <p>4. Same — Right to Bill of Exceptions.</p> <p>Under the practice of the courts of the United States, where an issue is tried by a jury according to the course of the common law, as under the provisions of Bankr. Act 1898, § 19a, no statutory provision is necessary to entitle a party to have the rulings of the court at such trial made a part of the record by bill of exceptions.</p> <p>6. Same — Acts of Bankruptcy — Suffering or Permitting Preference.</p> <p>Bankr. Act 189S, § 3a, defining “acts of bankruptcy,” requires in all cases some conscious and voluntary act on the part of the debtor, in addition to the fact of his insolvency, to render him subject to involuntary proceedings; and.to constitute an act of bankruptcy under clause 3, by his “having % ⅜ * suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having * ⅞ s vacated or discharged such pre'ference,” there must have been some act of the will on the part of the debtor, either by way of active procurance or voluntary acquiescence. The entering of judgment by a creditor on a judgment note executed by the debtor years before, and prior to the passage of the bankruptcy act, by which the creditor obtained a preference which was not discharged within the required time, where the action of the creditor was without the connivance of the debtor, and beyond his power to prevent, does not constitute an act of bankruptcy on his part, under such provision. Dallas, Circuit Judge, dissenting.</p> <p>6. Same — Failing to Discharge Legal Preference. ,</p> <p>Under Bankr. Act 1898, § 3a, el. 3, a debtor does not commit an act of bankruptcy merely by failing to vacate or discharge a preference obtained by a creditor through legal proceedings, unless, being insolvent, he also, “suffered or permitted” such preference to be obtained, within the meaning of such clause; nor will his failure to vacate or discharge such a preference warrant the inference either that he was insolvent or that he consented thereto, where there is no legal ground upon which he could vacate it, and he is unable to discharge it by payment. To so construe the provision as to require the debtor in such case to file a voluntary petition in bankruptcy, in order to negative his consent to the preference, would be to fix upon him the status of a bankrupt, either voluntary or involuntary, solely as a result or effect of liis creditor’s act in obtaining a pre'ference, which he was powerless to prevent, and not by reason of any act of his own, which is not justified by the language used, nor by the general spirit and scope of the act construed as a whole, and is contrary to the construction placed by the supreme court upon analogous provisions of the act of 1867.</p> <p>7. Same — Insolvency—Fair Valuation of Property.</p> <p>Bankr. Act 1898, § 1, cl. 15, providing that “a person shall be deemed insolvent within the provisions of this act whenever the aggregate amount of his property * * * shall not, at a fair valuation,, be sufficient in amount to pay his debts,” gives a definition of “insolvency” which must be strictly adhered to in proceedings under the act; and an instruction by the court upon an issue as to the insolvency of an alleged bankrupt, tried before a jury under the provisions of section 19a, which makes the solvency of the debtor dependent on his ability to realize a sufficient amount from his property to pay his debts, and which, in effect, defines a “fair valuation” of the properly as the amount which the debtor ■would have been able to realize therefor, considering his situation, the number and amount of his obligations, and the time when they were due, is misleading and erroneous, as adding conditions not set forth in the statute, and as laying down an erroneous rule for determining a fair valuation.</p> <p>8. Same — Evidence ov Insolvency — Competency op Husband’s Statements against Wipe.</p> <p>Under the statute of Pennsylvania (P. T.. 1887, p. 158, § 5) which provides that husband and wife shall not be competent or permitted to testify against each other except in proceedings for divorce, and which is by Itev. St. § 853, made the rule in courts of the United States held within that state, evidence of statements made by a husband while acting as agent for his wife in conducting her business, but not in hor presence, are not competent against her to prove her insolvency in involuntary proceedings in bankruptcy against her.</p> <p>9. Same — Statements op Agent.</p> <p>The fact that a husband acted as general manager for his wife in conducting a store owned by her, without any written authority defining the scope of his powers, did not constitute him her general agent outside of matters pertaining to the buying and selling of goods in such store, in such sense that statements made by him to Ijer creditors regarding her financial condition, not in her presence nor in relation to the purchase or sale of goods, would be binding upon her, or admissible against her to prove her insolvency in involuntary proceedings in bankruptcy against her.</p>

<p>Bankruptcy — Evidence—Scope op Examination op Witness.</p> <p>Tlie provisions of Bankr. Act 1898, § 21a, which authorize a court of bankruptcy by order to require any person who is a competent witness under the laws of the state to appear in court, or before a referee or judge of a state court, to be examined “concerning the acts, conduct or property of a bankrupt,” should bo liberally construed, so as to enforce full and frank answers by a -witness in aid of the bankruptcy proceedings; but it does not authorize inquiry of a witness as to his private affairs which have no relation to the “acts, conduct or property” of the bankrupt, nor can a court require him to produce private papers which have no relation thereto; and a mere affidavit of belief on the part of creditors or others is not sufficient to overcome a positive statement of the witness that the transactions inquired about or papers demanded have no relation to the bankrupt, so as to authorize a court to compel him to answer or to produce such papers.</p>

<p>Petition for Revision of Proceedings in the District Court of- the United States for the Eastern District of Tennessee.</p>

<p>Bankruptcy — Voluntary Assignment — Parties—Assignee—Jurisdiction.</p> <p>The assignee in a voluntary assignment was made a party to bankruptcy proceedings, and, after a full response was submitted therein, the referee, in June, ruled him to turn over certain assets to the trustee. Afterwards the assignee petitioned the court to review such ruling, and the court referred the case to a referee to ascertain certain facts. On November 10th the assignee tendered to the referee an amended response objecting to the jurisdiction of the court, but on its refusal by the referee the amended response was not tendered to the court until December 22d. Held, that the assignee, by failing to make timely objection, and by meanwhile making certain claims for compensation, had submitted to tiie jurisdiction of the court, and had waived the right to object.</p>

<p>In Bankruptcy.</p>

'Motion by importers for an order that a commission issue, out of and under the seal of the court, to the consul general at Vienna, .Austria, authorizing him to examine Friedrich Strohmer, under oath, upon written interrogatories annexed thereto, in three actions, the same being appeals by importers to the United States circuit court from decisions of the board of United States general appraisers, brought under the provisions of the customs administrative act of June 10,…

<p>L Internal Revenue — Stamp Taxes — Agreements to Sell Stocks.</p> <p>A stockbroker by bis course of business entered into agreements with his customers to buy or sell stocks at a fixed price for future delivery. Each of such agreements was evidenced by a written memorandum properly stamped in accordance with Schedule A of the war revenue act of 1898, which enumerates, as subject to stamp taxes imposed by the act, “all sales or agreements to sell or memoranda of sales or deliveries or transfers” of stock. The transactions were purely speculative, conducted on margins, and no actual delivery of stocks was contemplated by the parties, but settlement was made by the payment of differences and the surrender of the written memoranda. Held, that such settlements did not involve agreements for a resale of the stocks, requiring new memoranda to be made and stamped under such provision; the courts having no authority to infer such agreements, contrary to the fact, for the purpose of extending the provisions of the statute to transactions not within its terms.</p> <p>8. Same — Mode of Collection.</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 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>

The plaintiff in error was found guilty of perjury under an indictment which charged him with making a false oath to a schedule -which he, as a voluntary bankrupt, filed in bankruptcy. The indictment charged him with deposing that he had $168.90 in money, and that his schedule contained a statement of all his estate, both real and personal.

<p>1. Census — Fictitious Returns — Indictment—Sufficiency.</p> <p>An indictment for making a false and fictitious census return, is sufficient, though it fails to charge that it was made to the supervisor of the district, since that official is the only one authorized to receive it.</p> <p>2. Same.</p> <p>An indictment under the census act of March 3, 1899, which punishes the making of a “false certificate and fictitious return,” is not bad because it charges the making of a false and fictitious return, since there may be a false certificate without a fictitious return, but there cannot be a fictitious return that is not false.</p> <p>3. Same.</p> <p>An indictment sfor making a false and fictitious census return is sufficient though it fails to state that the form on which it was made was prescribed by the director of the census, the presumption being that no other form was used, in the absence of allegations to the contrary.</p> <p>4. Same.</p> <p>An indictment for making a false and fictitious census return is not de: fective because a portion of such return contains information not required by statute, and omits information demanded.</p> <p>5. Same — Census Act — Constitutionality.</p> <p>So far as the government seeks voluntary information relating to manufacturing and mechanical establishments, the census act of March 3, 1899, is not violative of the provision of the federal constitution that private property shall not be taken for public use without compensation.</p> <p>6. Same.</p> <p>A person sworn to obtain information relating to manufacturing and mechanical establishments, required by the census act of March 3, 1899, cannot make a fictitious return and escape punishment on the ground that tlie act violates the provision of the federal constitution that private property shall not be taken for public use without compensation.</p> <p>7. Same.</p> <p>The functions vested in the national government authorize the obtainment of information relating to manufacturing and mechanical establishments demanded by the census act of March 8, 1809, though Const, art. 1, § 2, par. 3. and section 9, merely direct congress to take a census of the population for the purpose of apportioning- representatives and direct taxes.</p>

The plaintiffs in error were indicted for alleged violations of the Revised Statutes of the United States (section 5508), in that, being respectively judge of the election, sheriff of election, clerk of election, and challenger, at an election held on November 7, 1000, at Louisville, Ky., for the election of persons to fill certain state and municipal offices, they had entered into a conspiracy to injure, oppress, threaten, and intimidate certain colored persons, on account…

<p>1. Lotteries — Construction of Federal Statute.</p> <p>Act March 2, 1895, providing that “any person who shall cause to he brought within the United States from abroad, for the purpose of disposing of the same, or deposited in or carried by the mails of the United States, or carried from one state to another in the United- States, any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery,” etc., defines three separate and distinct offenses; and to constitute an offense under either the second or third clause it is not necessary that the paper, certificate, or instrument should have been brought into the United States from abroad for the purpose of disposing of the same, those being the elements of the first offense alone.</p> <p>2. Interstate Commerce — What Constitutes — Lottery Tickets.</p> <p>The provision of Act March 2, 1895, that “any person -Who shall cause to be * * * ■ carried from one state to another in the United States any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery * * * or similar enterprise,” shall be guilty of an, offense, is within the constitutional power of congress to regulate commerce among the states, and covers a case where an individual carries from one state into another a ticket or a slip of paper which is understood by all the parties to the transaction to represent the interest of the purchaser of a chance in a lottery or “policy” game in which the drawing has not taken place.</p> <p>8. Conspiracy — Criminal Prosecution — Sufficiency of Evidence.</p> <p>To sustain an indictment charging a conspiracy to commit an offense against the United States, under Rev. St. § 5440, it is not necessary that there should bo direct evidence of a formal agreement; but it is sufficient if (he evidence of the separate details of the transaction as it was carried out indicates with The requisite certainty the existence of a preconcerted plan and purpose.</p> <p>4. Cki.minad Law — Keviicw ox Appeal — Objections to Evidence.</p> <p>It is the established rule in the courts of the United States that,'to entitle a party to a review of rulings admitting evidence, counsel, in making their objections, must state the grounds thereof.</p>

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

<p>Sur Writ of Habeas Corpus.</p>

This cause comes here upon appeal from a decree of the circuit court, Eastern district of New York, dismissing a bill in equity to restrain defendant from selling soap which, it is alleged, wrongfully simulated complainant’s soap.

<p>1. Patents — Suit by Licensee —Preliminary Injunction.</p> <p>A court will not grant a preliminary injunction restraining defendant from manufacturing or dealing in certain patented articles on an allegation that, such business would be in violation of complainant’s rights as exclusive licensee for the sale of such articles under a license to which defendant is not a party, where the suit is not one for infringement of the patents; and the question whether defendant is so connected with the licensor as to make him equitably a party to. the license contract is one to he determined on final hearing.</p> <p>2. Unfair Competition —Licensee Under Patent — III gut to Exclusive Use ob’ Trade-Name.</p> <p>A federal court, granted a temporary injunction restraining a licensor from canceling a license which gave the licensee the exclusive right to sell and deal in a patented article, designated by tbe inventor by tbe name of “Gramophone,” in tbe United States. Eeld that, tbe contract having been, in effect, declared in force by such injunction, the licensee was entitled to a preliminary injunction in another jurisdiction to restrain unfair competition by another by using the name “Gramophone,” to the exclusive use of which the complainant was entitled under his license so long as it remained in force, 1</p>

<p>1. Primary and Secondary Patents — Application of Doctrine of Mechanical Equivalents.</p> <p>One who invents and secures a patent for a machine or combination which first performs a useful function is protected thereby against all machines or combinations which perform the same function by equivalent mechanical devices; but one who merely malíes and secures a patent for a slight improvement on an old device or combination, which performs the same function before as after the improvement, is protected against those only who use the very device or improvement he describes and claims, or colorable evasions of it.</p> <p>2. Mechanical Equivalents — Interpretation.</p> <p>The term “mechanical equivalent,” when applied to the interpretation of a pioneer patent, has a broad and generous signification; but when it is applied to a slight and almost immaterial improvement in the progress of an art it has a very narrow and limited meaning, while in its application to all that great mass of inventions which falls between the two extremes its significance is proportioned to the character of the advance or invention under consideration, and is so interpreted by the courts as to protect the inventor against piracy an'd the public against unauthorized monopoly.</p> <p>3. Combination Patents — Law of Mechanical Equivalents Has Same Application'as to Other Patents.</p> <p>■The doctrine of ihechanical equivalents is governed by the same rules and has the same application in a case in which the infringement of a patent for a combination is in question as in cases where the issues are over the infringement of patents for machines or compositions of matter.</p> <p>4. Patent for Combination — Infringement not Avoided by Use of Different Means of Operation.</p> <p>One who appropriates a new and useful patented combination cannot escape infringement by the use of mechanical devices to unite or operate the elements of the combination which differ from those which are pointed out for the purpose, but which are not claimed in the patent.</p> <p>5. Drawings Part of Specification of Patent.</p> <p>Drawings are a part of the specification of a patent, and for the purp.ose of ascertaining the sufficiency of the description of the invention must be read with it.</p> <p>6. Claim of Patent not Invalid for Failure to Include Obvious Operative Devices.</p> <p>A claim for a machine or for a combination of mechanical devices is not invalid or insufficient because it fails to include mechanical devices for uniting or operating the machine or combination which readily suggest themselves to a mechanic skilled in the art, or which are pointed out in the specification and drawings as means for the purpose.</p> <p>7. First Claim of Letters Patent No. 535,465 Sustained.</p> <p>The first claim of letters patent No. 535,465, to John Schroeder, for improvements in means for operating washing machines, is sustained.</p> <p>⅜. Patent No. 535,40)5 Inerinoed by Combination Secured by Patent No. GOG. 044.</p> <p>A combination oí mechanical devices described in and claimed by letters patent No. (100,014, to Henry S’. Brammer, infringes the first claim of letters patent No. 535,105.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Patents — Inbtiifgemf.nt—-S,pltt Wooden Pulleys.</p> <p>The Sanborn patent, No. 275,947, for a split wooden pulley, claim 1, is entitled to a narrow construction only, and is not infringed by a spoke pulley.</p> <p>2. Sami*:.</p> <p>The Philion patent. No. 408,490, for an improvement in the process of constructing wooden pulleys, which consists essentially in uniting segments to form rings, and then uniting the rings together by means of glue and pressure, is void for want of patentable novelty.</p> <p>8. Same.</p> <p>The McNeal patent, No. 331,004, claims 1 to 6, which cover split wooden pulleys and a mode of constructing' the same, show merely combinations of old and well-known devices, which produce no new result, and are void for lack of patentable invention.</p>

<p>1. Patents — Anticipation—Metallurgical Furnaces.</p> <p>The Peifer patent,. No. 411.226, for an improvement in metallurgical furnaces, was not anticipated by the Howatson British patent.</p> <p>2. Same — Construction of Claim — Infringement.</p> <p>The Peifer patent, No. 411,226, for an improvement in metallurgical furnaces, is limited, by its terms, the state of the prior art, and the proceedings in the patent office, to the particular construction shown, the essential feature of which is the making of lateral air ports through the outer side walls of the furnace, whereby streams of cold air are drawn in and impinge directly against- the sides of the neck of the furnace below its floor line, to protect it from the action of the boiling slag, and it cannot be construed to cover any other means of accomplishing the same object. As so construed, 7ieZd not infringed.</p> <p>8. Same.</p> <p>That a patent does not adequately cover the actual invention of the i patentee is a matter which cannot be remedied by the courts.</p>

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

<p>1. Court op Admiralty — Finding of Fact Presumptively Correct.</p> <p>A finding of fact by a court of admiralty upon conflicting evidence will not he reversed or modified by an appellate court unless there is a clear preponderance of evidence against it. *</p> <p>2. Agreement for Compensation by the Day for Salvage Services En-</p> <p>forceable.</p> <p>A contract by one party to pay at all events, and by the other to receive a fixed or deserved compensation for salvage services, Is as conclusive and enforceable as any other valid contract.</p> <p>3. Same — Burden of Proof.</p> <p>The burden of establishing such an agreement by a fair preponderance of evidence is upon the owners or claimants of the vessel or cargo who allege it.</p> <p>(Syllabus by the Court)</p>

<p>1. Shipping — Demurrage—Construction of Charter.</p> <p>A provision in a charter for carrying lumber that the cargo should be furnished “at the port of loading as fast as vessel can receive and properly stow same in suitable hours and weather,” has reference to the hours and weather suitable for loading and stowage, and does not exclude time lost by reason of the lumber becoming wet, and unfit for loading, before it is forwarded to the ship.1</p> <p>2. Same.</p> <p>A provision in a charter party that cargo shall be “discharged at port of destination at the average rate of not less than 35,000 superficial feet per running day, Sundays and holidays excepted,” refers as to the rate to the discharge at the port of- destination, and not to the loading.</p>

<p>1. Salvage — Amount of Compensation — Rule for Determining.</p> <p>The admiralty law does not contain any scale by which to determine on a'percentage basis the amount earned by salvors, but the rule should be to award such a sum as will give a moderately liberal compensation for the services rendered, considering the merit of the service, the value of the property saved, and all the other facts and circumstances appearing in the particular case.</p> <p>2. Same — Rescue of Disabled Steamship — Amount of Award.</p> <p>A steamship worth $150,000, and carrying a crew of 33 men, broke her shaft, and lost her propeller, when 197 miles off the Oregon coast. Stormy weather came on, and she was unable to make repairs, or to make a port of safety with the sails she carried. She drifted in the direction of Cape Flattery four days, when she came in sight of a lightship, and subsequently anchored in 30 fathoms of water. Two passing ^vessels to which she signaled attempted to take her in tow, but failed, owing to the parting of the lines and the heavy sea. Subsequently, libelant’s tug, a powerfiil and well-equipped vessel, came to her assistance, and by the prompt and skillful action of the master and crew of the tug she w'as towed to a port of safety, without injury, arriving the following morning. The service was attended by considerable peril owing to the severity of the storm, which also continued with increasing severity for some days thereafter; and the evidence tended to show that, if the ship had not been rescued that day, she would probably have been’ lost. On such facts an award for salvage was made, apportioned among the owners, officers, and crew of the tug, amounting in all to $8,175.1</p>

<p>I. Sbamen---Wages.</p> <p>A seaman, who signed articles before a shipping commissioner at a distance from the vessel, to which he was furnished transportation, arriving on the same day at 6 p. m., held to be in the service of the ship that day, and entitled to wages therefor.</p> <p>J. Same — Penalty for'Delay in Payment.</p> <p>On the discharge of a seaman, a dispute having arisen as to the amount due him, the master went with him before a shipping commissioner, who decided in favor of the contention of the master. Held, that such decision, although erroneous, constituted a reasonably “sufficient cause” for withholding the additional wages claimed to exempt the ship and owners from the penalty imposed by Kev. St. § 4529, as amended by Act Dec. 21, 189S (30 Stat. 756), for a failure to pay promptly on discharge.</p>

<p>In Admiralty. On exceptions to libel.</p>

<p>' In Admiralty.</p>

<p>1. Salvage — Fire—Harbor Tugs.</p> <p>Twenty-three harbor tugs, of the aggregate value of $300,000, extricated from the docks, which were on fire, a steamer worth $2,000,000. The moral certainty of great loss, except for their assistance, was the chief ground for a substantial reward. There was little danger to the tugs; the tim§ of service was short, — an hour or two, except in the case of a few tugs, which, at the request of the ship, remained by her till the next morning, and there were other tugs present which could not find employment. Held, that 820,000 should be awarded for the service.1</p> <p>8. Same — Apportionment among Tugs.</p> <p>In apportioning such award among the tugs, there will be kept in view’; (a) Their time of arrival; (b) their value, size, arid power; (c) their post tion, and the presumptive effectiveness of their services; (d) their aid in rescuing persons from the fire or the water; and (e) their remaining by, as requested, after the principal service had been performed.</p> <p>3. Same — Rights of Charterer and Owner of Titg. :</p> <p>The charterer, and not the owner, oí a tug is entitled to- the salvage earned; the charter being one of demise, under which the charterer received the bare boat, and agreed to return her in as good condition as received.</p>

<p>Salvage-Salved Vessel Becoming Salvor — Amount of Compensation.</p> <p>Tlie steamer S. having stranded, the W. Co., as salvor, made a contract to endeavor to get her off and deliver her at N. for 60 per cent, of the value recovered. The contract provided that such company should have the requisite possession and control of the property, and the reasonable use of material belonging to the vessel. Having got her off and made temporary repairs, the company started her for N. in tow of the steam tug M.- The tug becoming temporarily disabled, by losing her smokestack and rupturing a steam pipe, it was arranged that the S. should' take her in tow to a place 178 miles away, which was accomplished in 36 hours. The M. was worth $46,000. The S., which was afterwards taken to N., there sold for $45,000. Held that, while the owner of the S. was entitled to compensation for the service rendered the M., $750, besides an allowance for extra coal and oil consumed, was enough; the danger to the M. not being serious, and only the captain and engineer of the S. being aboard her, she being otherwise manned by the W. Co.’s men.1</p>

<p>1. Lighters — Substitute for Vessel.</p> <p>Where there is a contract to carry goods from one port to another, and they cannot.be loaded directly on the vessel, and lighters are sent by it to bring the goods to it, the lighters are for the time its substitutes, so that the bill of lading is applicable to the goods as soon as they are placed on the lighters.</p> <p>2. Unseaworthiness op Vessel — Presumption.</p> <p>A lighter taking goods to a vessel when the water was still, having capsized, causing the loss of the goods, and there being no other explanation than that there was an ordinary swell from a passing .steamer, there is a, presumption of unseaworthiness.</p> <p>8. Same — Duty op Owner.</p> <p>The Harter act (27 Stat. 445, c. 105), providing by section 3 that if the owner of a vessel engaged in transporting merchandise exercise due diligence to make it in ail respects seaworthy, and properly manned, equipped, and supplied, it or the owner shall not be liable for loss from faults or errors in navigation or in tlie management of it, or the dangers of the sea, does not lessen the owner’s obligation to furnish a seaworthy ship at the inception of the voyage in respect to losses arising from causes other than those designated. It is not enough that he uses due diligence, but the ship must be seaworthy.</p> <p>4 Bill op Lading — Stipulations—Lighters.</p> <p>A stipulation in a bill of lading that the carrier may convey goods in lighters to and from the ship at the risk of the owner of the goods does not apply to risks arising out of the unfltness of a lighter.</p> <p>5, Same.</p> <p>If taking a cargo to a vessel in lighters be part of the loading of the vessel, a stipulation in the bill of lading relieving the carrier from failure to provide a fit lighter is prohibited by Harter Act (27 Stat. 415, e. 105) § 1, declaring it unlawful for the owner of a vessel engaged in transporting merchandise to stipulate against liability for loss from negligence in loading.</p> <p>6. Same — Ambiguity.</p> <p>A stipulation in a bill of lading that “the ship is warranted seaworthy only to the extent that the owners shall exercise due diligence to make it so,” being ambiguous and uncertain in its meaning, can have no effect.</p>

<p>In Admiralty. Suit to recover damages resulting from alleged negligent navigation.</p>

<p>.Collision — Steam-Vessels Passing in Channel — Failure to Signal.</p> <p>A steamer coming out through the Kills met two steam lighters with a tow going in, and took a course somewhat towards the left shore for the purpose of making a landing on Staten Island. The first and second signals of the steamer, indieating her intention of passing to the right, not being answered, instead of reversing, as was her duty, she changed her course to the right, and came in collision with the tow. Neither vessel signaled until they were within 1,000 feet of each other, although they were' in sight of each other when half a mile apart, at which distance the rules require that signals should be given; and the winding course of the channel made the observance of the rule the more obligatory, as did also, as to the lighters, the additional fact that they were crossing the usual line of navigation of vessels coming out. Held, that all three vessels were in fault, and liable for the damages to the tow.</p>

<p>Collision — Sailing Yacht and Propeller — Mutual Fault.</p> <p>A collision between a sloop yacht and a propeller, crossing in the night at an obtuse angle, held to have been due to the fault -of both vessels,— of the yacht, in that she failed to have her lights properly screened, by reason of Which they crossed and misled the propeller as to her course: and of the propeller, because she failed to take timely precaution to keep out of the way after discovering that the yacht did not keep the course she was at first supposed to be on.</p>

<p>Collision — Smoke—Failure to Signal.</p> <p>Before daylight a tug came into collision with a boat in tow of a tug In a dense smoke coming from copper works on the shore. The lights of. neither tug could be seen by the other until about 50 feet apart. No signals had been given, for the alleged ■ reason that the smoke was not seen until the boats got into it, but the prevalence of such smoke' in a north wind, such as was blowing at the time, was a well-known fact to all navigators. The boats were moving at the rate of about five miles an hour. Held, that the omission to give timely signals on both sides with the rate of speed was the cause of the collision, rendering both tugs liable.</p>

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

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

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

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts.</p>

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

<p>Petition to Review Order of the District Court of the United States for the Southern District of Now York.</p>

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

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

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

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

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

<p>Motion to Dismiss Petition.</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>Appeals from the District Court of the United States for the Northern District of New York.</p>

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

<p>On Demurrer to Amended and Supplemental Rill.</p>

<p>Motion for Appointment of Permanent Receivers. •</p>

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

<p>Appeal by the United States from a decision of the Board of United States General Appraisers.</p>