Volume 107 — Federal Reporter

This case originated in the attempt of John E. Holmes, a receiver appointed for the purpose of collecting the stockholders’ liability of the Commercial Bank of Cincinnati, an insolvent corporation, to enforce the liability alleged to have been incurred by one John M. Kirtley as a stockholder in said bank. It appears that on the 27th day of March, 1895, the Commercial Bank made an assignment for the benefit of its creditors under the laws of the state of Ohio.

<p>Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.</p> <p>The Western Union Telegraph Company, complainant, a corporation under the law's of the state of New York, authorized to do a general telegraphic, business throughout the United States, on June 17, 1867, accepted the terms of the act of congress of July 24, 1866 (Rev. St. U. S. §§ 5263-5268), the first section of which provides: “That any telegraph company now organized or which may hereafter be organized, under the laws of any state in this Union, shall have the right to construct, maintain and operate lines of telegraph, through and over any portion of the publig domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of congress, and over, under or across the navigable streams or waters of the United States: provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber and other materials for its posts, piers, stations and other needful uses in the construction, maintenance and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.” Subsequently, by an act approved June 8, 1872 (Rev. St. U. S. § 3964), all letter-carrier routes established in any city or town for the collection and delivering of mail matter by carriers were declared by congress to be post roads. Soon after its acceptance of the terms of the act of congress of 1866, the complainant constructed its lines of telegraph in the city of Toledo, and lias since, with full acquiescence of the city, occupied its streets and alleys with its poles and wires. It has conformed to the regulations of the city from time to time by putting its wires underground where required, and removing its poles from one district to another. For several years the Western Union 'telegraph Company had its messages delivered and gathered by a local company, with which it failed to make a contract to continue such service, and at some time before the commencement of this suit several persons had agreed to form another such company, to he known as the '‘National District Telegraph Company,” with which, when formed, the Western Union Telegraph Company had agreed to make a contract for the gathering and delivering of its messages in the city of Toledo. This company was never formed, and never acquired any rights in tiie streets of Toledo, although the persons who contemplated forming It had call boxes made and placed in some of the offices and buildings, and advertised for business under the representation that this company was connected with the Western Union Telegraph Company. Without obtaining' a franchise, the persons contemplating forming the National District Telegraph Company applied to the complainant to be allowed to install its system on the poles and in the conduits of the complainant, which, on advice of counsel, was refused. The project ol‘ forming the National District Telegraph Company was then abandoned, and the complainant purchased the boxes which bore the name and advertisement of the National District Telegraph Company, and purposed completing the system by stringing wires on its poles and in its conduits, and carrying- on the business of a district telegraph company for its own service and for the general public. For this purpose, without disclosing it, the complainant applied to the superintendent of fire-alarm telegraph and city civil engineer of defendant city for permits to set poles as required by the ordinance with which it had always complied, 'filíese permits were granted under the belief that the work was for the regular and accustomed business of the complainant; hut when it was found that complainant was connecting wires with the call boxes which had been put in, and installing a complete district telegraph system, the defendant, under the impression that complainant was clandestinely doing this for the National District Telegraph Company, revoked the permits, and the complainant, was notified that, if it desired to do any more new work, a separate permit should he applied for, stating exactly what was required. The common council of the city then passed a resolution stating that parties styling themselves the National District Telegraph Company had, without right or authority, erected poles and fixiures, and had strung wires in and over the streets, alleys, and public places in the city, which were a hindrance to the fire department, and a menace to the safety of the lives and property of citizens, and directing the chief of police, city civil engineer, and superintendent of fire-alarm telegraph to remove all such wires, fixtures, and poles erected or constructed by the National District Telegraph Company, or by any other individual, company, or corporation, without having first complied with the laws, ordinances, and regulations governing this class of work in the city of Toledo. Thereupon this hill was filed against the city and its officers, stating in the most general terms that the defendant city threatened to cut the wires, destroy the lines, and remove the poles of the complainant, and interrupt the working of its lines, ruin its business, and incapacitate it from discharging its duties to the general public and its agency to the federal government. An order to show canse why a preliminary injunction should not he granted was made., and a preliminary restraining order was issued. Oil the hearing, the defendant disclaiming every intention of interfering with the lines and property of the complainant used in its usual and ordinary business, and avowing that its purpose was only to arrest the installation of the plant of the National District Telegraph Company, the preliminary injunction was denied, and the temporary restraining order vacated. W. U. Tel. Co. v. City of Toledo, 103 Fed. 7-16. The complainant then filed a petition setting out frankly its purpose of installing a district telegraph system in the city of Toledo in connection with its business as now conducted, and stating- for that purpose it had purchased the boxes with the National District Telegraph Company’s name and advertisement imprinted upon them, and intended to connect the boxes already placed and others to be placed in complainant’s office by the wires and construction which the defendant threatened to destroy"; that the defendant had, since an order for a preliminary injunction had been denied, and the temporary restraining order set aside, cut the wires belonging to the complainant, and it 'again asked for a preliminary injunction against the defendant. After a hearing, an order was made reciting that the complainant proposed to establish and operate a local district telegraph system in the city of Toledo, through its own wires and apparatus, and restraining the defendant, until the further order of the court, from obstructing the complainant in installing the system on its poles and through its conduits, ánd from interfering with the complainant in carrying on and conducting a district telegraph system within the city of Toledo. From that order the defendant has appealed to this court.</p>

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 sustained the action of the collector of the port of New York in the assessment for duty of certain merchandise imported under the tariff act of 1897.

<p>Right to Maintain Suit — Issue as to Complainant’s Ownership op Corporate Stock.</p> <p>On an issue as to complainant’s ownership of corporate stock, on which his right to maintain suit depended, a letter was produced, in which, referring to the stock in question, he stated that he did not recall the terms of a transfer thereof made to a gentleman of Boston, and that no doubt the person referred to, whom he named, would cheerfully show the transfer lie executed; and if it gave, or the law gave, the purchaser the right to use his name as legal plaintiff, he had such right, and otherwise not, “as 1 have no interest whatever in the stock, and have not had since the date of the transfer.” Besides, complainant testified that he could only say just what lie said in the letter; that he liad no interest in the stock whatever, but that, if counsel of the then owner needed the use of his name as legal plaintiff, and would protect him from any responsibility for the costs of litigation, he had no objection to its use; and that he knew nothing about the institution of the suit except what was stated in the letters in evidence. There was other testimony to the same effect. Held, that it was obvious that he was not the owner of the stock, and thíjt he susiained no trust relation to the owners thereof entitling him to sue in his own name for their benefit.</p>

This was a suit in equity, brought by the appellants in the court b low for an injunction to restrain the appellees from prosecuting a certain action at law pending in said court for the recovery of a tract of land of about 3,000 acres in Stephens county, Tex.

<p>In Equity. Suit for foreclosure of a mortgage against a water company. On petition of the Holly Manufacturing Company, intervener.</p>

<p>1. Finding of Master—Conclusiveness.</p> <p>Where a reference was made to a master in a suit for an accounting to determine the value of certain property conveyed to one of the parties an'd sold by him, finding of .the master will not be disturbed where based upon the evidence.</p> <p>2. Accounting—Credits.</p> <p>Where property is conveyed to a creditor as security to be sold, on accounting with the debtor the creditor is entitled to be credited with interest on mortgages on the property, paid by him to save the property for the benefit of the creditor, and the taxable costs of foreclosures from which the creditor redeemed.</p>

<p>1. Homestead — Exemption—Fraudulent Conveyance.</p> <p>A rural homestead of an Insolvent, being exempt from execution by positive statute (Rev. St. Tex. 1895, art. 2396), cannot be tbe subject of a fraudulent conveyance as against the grantor’s creditors.</p> <p>2. Same — What Law Governs — Federal Courts.</p> <p>Wbat real estate Is subject to or exempt from execution issued from federal courts is governed by the law of the state where the real estate is situated.</p> <p>8. State Statutes — Construction by Federal Courts.</p> <p>Decision of a state court showing the state’s policy to liberally construe its exemption statutes Is binding on the federal courts in considering whether or not certain real estate in such state Is subject to execution issued out of the federal courts.</p> <p>A Homestead — Conveyance—Intent to Abandon — Fraud.</p> <p>Where an insolvent conveys the homestead to his wife, and she thereafter contracted to convey the land to B. in exchange for cattle, but, though the cattle were delivered, and possession of the homestead given, the sale was not completed, but was subsequently rescinded, such attempted sale did not show an attempt to abandon the homestead, and thus raise a presumption of fraud in the disposition of the homestead as against the husband’s creditors.</p> <p>5. Same — Excess op Land Conveyed — Intent.</p> <p>Tex. Bev. St. art. 2396, provides that a rural homestead of a debtor to the extent of 200 acres shall be exempt from sale on execution. Held, that the fact that a deed of an Insolvent homestead calling for only 200 acres In fact conveyed 220 acres did not render the conveyance void as against the husband’s creditors, where It appeared that neither the husband nor wife had actual knowledge of the exact amount of land included, and the first knowledge of the excess arose from a survey made after suit was brought.</p> <p>8. Same.</p> <p>Where a deed to a homestead conveyed 20 acres in addition to the amount which was exempt, which was inadvertently included, the rule that a deed fraudulent in part as against the grantor’s creditors is fraudulent in toto did. not apply, since such rule is not applicable to an excess of a few acres inadvertently included.</p> <p>7. Same — Conveyance by Husband to Wife.</p> <p>Tex. Const, art. 16, § 50, and Tex. Kev. St. 1895, art. 636, requiring the wife to consent to and join in a conveyance of a homestead, and articles 635, 4618, requiring an acknowledgment by her on privy examination, did not preclude a husband from conveying the homestead directly to his wife, since, as she is not required to join in such conveyance, the statutes enacted for her protection'and benefit have no application.</p> <p>8. Same — Limitation of Actions — Suspension—Married Women.</p> <p>Tex. Kev. St. 1895, art. 3342, declares that peaceable and adverse possession of ‘real estate for five years bars a recovery, and section 3201 provides that such statute shall not run against a married woman. Laws April 1, 1895, abolished such exception, but provided that the disability of married women shall continue for one year from and after the passage of the act, and that they shall have, therefore, the same time to sue as is allowed others by the provisions of the act. Held, that limitations did not begin to run against an action to recover real property by a married woman until one full year had expired after the act took effect, and that a contention that the time elapsed before the adoption of the amendment should be counted allowing married women one year to sue after the adoption of the amendment was not sustainable.</p> <p>9. Same — Direction of Verdict.</p> <p>Where in an action for the recovery of real property it would have been the court’s duty tq have set aside a verdict for the defendants if returned, the court properly directed a verdict in favor of plaintiffs.</p>

<p>1. Garnishment — Debt Dub Creditor of Another State Subject to.</p> <p>The right to garnish a debtor is not limited to the situs of the chose in, action, and a garnishment by a citizen of one state of a debtor of the same state, whose creditor resides, whose debt was contracted and is/ payable in another state, is such an attachment of the chose in action as will authorize the court to obtain jurisdiction to dispose of it by publication of the summons against the defendant.</p> <p>2. Removal — Estoppel from Denying Jurisdiction.</p> <p>One who removes a case from a state to the federal court is estopped from attacking the jurisdiction of the latter upon any ground except that the court from which it was removed had no jurisdiction.</p> <p>3. Party Conducting Defense in Another’s Name Estopped by Judgment.</p> <p>One who instigates another to do a wrongful action, and, when the wrongdoer is sued, takes upon himself and conducts the defense of the ease, is estopped from again litigating with the plaintiff in that action1 the issues there decided.</p> <p>4. Defect of Parties Waived by Failure to Present by Demurrer or Answer to the Merits.</p> <p>A defect of parties plaintiffs or defendants through misjoinder or non-' joinder is waived by a failure to suggest the same by demurrer or answer.</p> <p>5. Creditor Instigating Conversion and Defending Converter Bound by Judgment against Him. ' '</p> <p>A creditor who indemnifies an officer against damages for seizing and converting property, and defends an action against the officer individually for the conversion, is estopped by the judgment against him' from' again litigating with the plaintiffs in that action the issues there decided.</p> <p>(Syllabus by the Court.)</p>

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

<p>1» Order Granting or Refusing New Trial within Jurisdiction of Court not Reviewable.</p> <p>An order granting or refusing a new trial, which the court has the jurisdiction to make, is discretionary with the trial court, and cannot be reviewed by appeal or writ of error in the federal courts.</p> <p>2. The Question of the Power to Make Order for New Trial Reyiew- ' -ABLE.</p> <p>But the question whether or not the trial court has the Jurisdiction to make an order granting or refusing a new trial is reviewable in the federal courts by an appeal or writ of error challenging such order.</p> <p>3, Order for New Trial — Remedy for Incapacity of Judge to Sign Bill</p> <p>of Exceptions.</p> <p>An order for a new trial, when the application for it is made in due time, is the proper remedy for the incapacity of the judge who tried the case to settle and sign the bill of exceptions.</p> <p>4. Courts without Power to Vacate or Modify Their Judgments after the Term.</p> <p>Judgments at law cannot he vacated or substantially modified by the courts which rendered them subsequent to the expiration of the terms at which they were entered, in the absence of motions or proceedings for that purpose during such terms; and the only exceptions to this rule are that clerical mistakes, and such mistakes of fact not put in issue or passed upon as may be corrected by writ of error corara vobis, or by motion in lieu of that writ, and mistakes in the dismissal of a cause, may he corrected after the expiration of the terms.</p> <p>5. Power and Practice of Federal Courts in Settling Bills of Exceptions and Granting Motions for New Trial Independent of State Statutes and Practice.</p> <p>Section 914 of the federal statutes was not intended to and did not conform the power or the practice of the federal courts to those of the state courts in matters relating to hills of exceptions, motions for new trials, and methods of review of their judgments.</p> <p>(Syllabus by the Court.)</p>

<p>Complaint — Single Cause of Action.</p> <p>Though gambling on margins continued from day to day for three months, a complaint to recover the money lost therein may plead it all in a single paragraph as a single cause of action, a single and continuous purpose evidently running through the entire transaction.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Action by John Gladish against the Pennsylvania Company. From a judgment on a directed verdict in favor of defendant, plaintiff brings error.</p>

Action by S. S. Jones against the Mexican Central Railway Company. Judgment in plaintiff’s favor, and defendant brings error.

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

<p>On Exceptions to the Master’s Report.</p>

<p>In Bankruptcy.</p>

<p>Submitted on Petition for Discharge, and on Final Order Closing the Estate.</p>

.. The bankrupt filed his petition praying to be adjudged a voluntary bankrupt In the proper court on the 10th of June, 1899. Shortly thereafter the court adjudged him a bankrupt, and referred the matter to the referee, who, in proper time, appointed a trustee to the estate. A general examination of the bankrupt was held at the creditors’ meeting, and later on, in due course and as provided by law, the bankrupt filed his application to be discharged.

<p>’li. Bankruptcy — Preference of Creditors — Payment in Regular Course of Business.</p> <p>Payment was made to creditors by a bankrupt In good faith in the regular course of business, when he was unaware of his insolvency, and was not intended to cause- a preference. It was likewise' received by the creditor, who was also ignorant of his insolvency. Held not to amount to a preference, within the meaning of Bankr. Act 1898, § 57g, prohibiting preferred creditors from proving their claims without first surrendering their preferences.</p> <p>2. Same — Payment Inducing New Credit.</p> <p>Though the payment induced a new credit, it did not amount to a preference, within section 60c, providing for a set-off of a preference against a new credit.</p>

<p>Bankruptcy — Composition—Failure to Keep Books.</p> <p>Where the bankrupts’ failure to keep proper hooks of account was not shown to have been with a fraudulent intent to conceal their true financial condition, or in contemplation of bankruptcy, such failure, and proof that their business methods had been loose, were insufficient to prevent the confirmation of a composition between the bankrupts and their creditors which was for their best interests.</p>

<p>1. Bankruptcy — False Oath of Bankrupt — Irrelevant to Estate — Discharge not Barred.</p> <p>Where a bankrupt testified under oath on examination before a referee that he had not stated to certain parties that he had an interest in a certain firm, which firm in fact never engaged in business, such oath not having been made in connection with the administration of the bankrupt’s estate or an act affecting the estate, will not bar a discharge under Banlcr. Act 1898, § 14b, subd. 1, providing that the court shall discharge a bankrupt unless he has committed an offense punishable by imprisonment, and section 29b, declaring that the bankrupt shall be imprisoned on conviction of knowingly and fraudulently making a false oath in relation to any proceeding in bankruptcy.</p> <p>2. Same — Statement Under Oath — Contradiction of Statement not under Oath — Falsity not Proved Thereby.</p> <p>Where a bankrupt was alleged to have made a certain statement not under oath, and afterwards denied the same under oath, his statement under oath was not proved to he false by proof that he made the contradictory statement not under oath.</p> <p>3. Same — Mutilation of Account Books.</p> <p>A bankrupt’s discharge was not barred by the fact that the account books of a corporation, for which he was bookkeeper, and in which he had no interest, had been mutilated before they came into the possession of the corporation, under Bankr. Act 1898, § 14b, subd. 3, providing that the court shall not discharge a bankrupt who destroys or fails to keep books of account to conceal his true financial condition.</p>

<p>In Bankruptcy. On petition of the Central National Bank of Philadelphia.</p>

<p>Petition for Review of Proceedings in the District Court of the United States for the Eastern District-of Pennsylvania.</p> <p>In Bankruptcy.</p>

<p>Bankruptcy — Attachment—J udgment.</p> <p>An action was brought July 22, 1899, and attachment levied and an order of sale entered September 19, 1899. A petition in involuntary bankruptcy was filed against 1he debtor August 7, 1899, and it was adjudged bankrupt October 5, 1899. The debtor was insolvent when tlie attachment was levied, but the attaching creditors had no knowledge thereof. The statutes of Oregon provide that from the date of the attachment, plaintiff, as against third persons, shall be deemed a purchaser in good faith. Held not to bring- the claim of plaintiff in attachment within Bankr. Act, § 67f, pi-oviding that nothing in the act shall destroy a title obtained by attachment, or other lien, of a bona fide purchaser for value, but that the attachment was void under section 67, par. “£,” of the act, which provides that all attachments obtained against insolvents within four months prior to the filing of a petition shall be 'deemed void.</p>

<p>Bankruptcy — Adjudication on Voluntary Petition — Dismissal of Proceedings — Payment of Trustee’s Expenses.</p> <p>After a trustee in bankruptcy lias been appointed on a voluntary petition, a dismissal of the proceedings, though unopposed by creditors, will not be made till payment of expenses incurred by the trustee in employing an attorney, and properly found to be reasonable by a referee.</p>

<p>In Bankruptcy. Application to vacate an order staying the payment of money deposited to await the result of a creditors’ suit.</p>

<p>'Bankruptcy — Preferences—Expenses of Sheriff in Attachment.</p> <p>Hill’s Ann. Laws Or. § 3173, provides that assignments for creditors shall discharge all attachments in which judgment shall not have been rendered at the date of the assignment, and that the claims shall share pro rata with other claims, after payment of costs and disbursements in the attachment proceedings. ■ Bankr. Act, is 64b, subd.. 5,’ provides that debts entitled to priority under the laws of the states or the United States shall have priority of payment out of the bankrupt’s estate. Held, that the claim of the sheriff or expenses incurred in the attachment were not entitled to priority of payment, as the attachment ceased to operate on the rendition of the judgment in the attachment suit, and. the lien of the judgment became substituted for that of the attachment, which judgment is made null and void by the bankruptcy act, and the preference given by the state statute applied only to assignments for benefit of creditors, and furthermore, the bankrupt act, while providing for the payment of taxable costs incurred in good faith, does not include such costs in any class given priority of payment.</p>

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

In Bankruptcy. On questions certified by referee relating to the bankrupt’s claim to exemptions. The bankrupt, a resident of the state of Arkansas, and the head of a family, carried on a mercantile business under the firm name and style of Meriwether & Taylor. . The. only .evidence introduced tends to show that.

<p>Customs Duties — Additional Duties — Undervaluation—Construction of Act 1897.</p> <p>Section 32 of the tariff act of 1897 provides that, if the appraised value of any imported article subject to an ad valorem duty shall exceed the declared value in the entry, there shall be levied and collected an additional duty proportionate to the excess, but not exceeding 50 per centumof the appraised value. By a proviso it is declared that if the appraised value shall exceed the declared value by more than 50 per cent., except when arising from a manifest clerical error, the entry shall be held presumptively fraudulent, and the collector shall seize the goods, and-proceed as in case of forfeiture. Held, that the fact that a case is within the terms of the proviso, or that the government has proceeded thereunder for the forfeiture of the goods, does not relieve the, importer from liability for the additional duty imposed by the previous portion of the section, which expressly provides that such duty shall not be construed to be penal, and shall not be remitted nor refunded on any ground.</p>

This cause comes here upon appeal from a decision reversing a decision of the board of general appraisers, which affirmed the action of the collector in the matter of the classification for customs. duty of certain merchandise imported under the tariff acts of 1894 and 1897.

District of New York. This- cause- comes here upon appeal from a decision of the circuit court, Southern district of New York (99 Fed. 425), reversing a decision of the board of general appraisers which had affirmed the action of the collector of the port of New York in assessing a countervailing duty on certain sugar imported from Amsterdam under the tariff act of 1897.. The facts are set forth in the opinion.

<p>Appeal from the Circuit Court of the United States for the Southern District of Yew York.</p> <p>This cause comes here upon appeal from a decision of the circuit court, Southern district of Yew York (99 Fed. 264), reversing a decision of the hoard of general appraisers which affirmed the action of the collector of the port of Yew York in the assessment of duties on merchandise imported by the appellees.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern -District of New York,</p> <p>This cause comes here upon appeal from a decision of the circuit court, Southern district of New York, affirming a decision of the hoard of general appraisers (99 Fed. 557), which sustained the action of the collector of the port of New York in assessing certain imported-merchandise for duty. .</p>

This cause comes here upon appeal from a decision of .the circuit court, Southern district of New York, affirming a decision of the hoard of general appraisers which- sustained the collector of the port of New York in the assessment of duty on certain merchandise. The importations represented by tbe exhibit comprised various pieces of beaded net lace made of silk.

<p>Elections — Offenses against Eight of Suffrage — Constitutionality of Federal Legislation.</p> <p>Rev. St. § 5507, providing that “every person who prevents, binders, controls, or intimidates another from exercising or in exercising the right of suffrage, to whom that right is guarantied by the fifteenth amendment-to the constitution of the United States, by means of bribery or threats,” etei, shall be punished, is void, as beyond the constitutional power of congress. The only power possessed by congress to legislate with reference to elections held solely for state or municipal purposes is derived from the fifteenth constitutional amendment, providing that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and that “the congress shall have power to enforce this article by appropriate legislation”; but the right conferred by such article, and which congress may enforce by legislation, is not the right of suffrage, but the right of the citizen to exemption from being discriminated against in the exercise of the elective franchise by the United States or a state on account of race, color, or previous condition of serví-, tude, while the statute is not limited to the enforcement of such right, and in fact has no relation, to it, but is so broad in Its terms as to- make punishable as a criminal offense an act of a private person committed at a state election, if committed against a voter of African descent, although it has no relation to the race, color, or previous condition of such voter.</p>

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

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

<p>In Equity. Suits for infringement of patents. On motions for preliminary injunctions.</p>

<p>Bill for Infringement of Patents. On exceptions to answer. Exceptions sustained.</p>

<p>1. Patents — Assignment—Validity.</p> <p>Where a joint owner of a patent assigns bis joint interest therein, and the assignment recites the consideration as paid, if it was not paid that fact would not invalidate the assignment as to those who should deal with the assignee on the faith of it.</p> <p>2. Same.</p> <p>.Where an instrument recites that the subscriber assigns his entire interest in a “trunk-shaped bank” manufactured under certain patents, and writes at the same time to one having the right to manufacture under such patents on payment Of a royalty that he must thereafter pay the royalty to the assignee named, it constitutes an assignment of the patent.</p> <p>8. Same — Infringement.</p> <p>Headley’s patent No. 379,534, for a toy registering savings bank, held infringed as' to the third claim.</p> <p>4. Same.</p> <p>Headley’s patent No. 384,523, for a coin receptacle and register, held not infringed as to its fifth claim.</p>

<p>1. Patents — CoNSTiuroxioN of Chaims.</p> <p>A clause in a sxiecifieation of a patent which was clearly Intended to-relate to one claim of the patent only, and was so understood by the patent office, cannot be construed as a limitation of the oilier claims.</p> <p>2. Same— Infringement — Knitting Machines.</p> <p>The Paxton and O’Neill patent, No. 521,218, for a 1'asliionlng device for circular limiting machines, construed, and held not anticipated and; valid. Claims 3, 2,8, and 4 also- held infringed.</p>

<p>Patents— Infringement — Metallic Pillows.</p> <p>Yogler patents, No. 11,514, No. 11,508, and No. 562,940, relating generally to metallic pillows or cushions, composed of spring wires, taking the place of feathers, hair, or other soft materials, cover a new and useful invention, which has not been anticipated, and are infringed by a couch in substantial imitation thereof; the differences that exist relating merely to details of construction.</p>

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

Appeals from the District Court of the United States for the Southern District of New York. Two libels were brought in the district court for the Southern district of New York against the steamship Merida to recover the damages sustained to consignments of hides and bales of horse hair and glue stock shipped to the different libelants on the steamship in May and June, 1898, and arriving in New York in a damaged condition on July 22, 1898.

<p>Liability on Tits — Injury to Tow.</p> <p>Where the masts of a steamer in tow were evidently very high, and the captain of a tug, when twice requested to come up at low tide with the vessel under the Brooklyn Bridge, had refused to do so, but took the vessel under the bridge at the top of the tide, having been informed that the masts were about 134 feet high, and believing the bridge to be 135 feet above mean high water, leaving only about a foot for contingencies, he assumed the risk of the uncertainty as to the exact height of the •masts, and that, together with the fact that in warm weather the bridge drops from expansion of the steel cables, and that it varies with the loading, and that if from any cause the course of the vessel is forced to one side or the other from’ the center of the bridge, the bridge itself at the point of passage is lower, it rendered the owner of the tug liable for the breaking of the masts of the vessel in attempting to tow her under the bridge. - ... •</p>

<p>Shipping — Cargo Damages — Unseaworthinesr—Frozen Water Pipes.</p> <p>'A water-service pipe on the tipper deck of a steamship had a branch passing down through the deck, across the vessel, and terminating in a brass cap for the attachment of a hose for washing the midship' deck. The space where the pipe terminated was not originally intended for .cargo, but bad' been inclosed, and was sometimes used for that purpose. There was no valve by which such branch pipe could be cut off from the main pipe on the upper deck. While the ship was loading for a voyage in New York there was severe cold weather, during which the hatch into the compartment where the pipe terminated was opened, and the compartment was filled with cargo, and the hatch battened down, so that the compartment was not readily accessible. During the time of loading, the water in the branch pipe froze,1 and the cap hurst, and in using the main pipe during the voyage water ran through the branch .pipe into the compartment, and damaged the cargo, before it was discovered. Held, that as to such compartment tbe vessel was not seaworthy on sailing, nor was due diligence used to make her so, within tbe provisions of tbe Harter act or similar provisions in tbe bills of lading; that there was a lack of suitable care, also, in loading the cargo in tbe compartment with such a pipe not suitably protected against frost, and without inspection as to its condition, 'which could have been readily discovered and easily remedied, so as to prevent exemption of the owners from liability under other provisions of the hills of lading.</p>

<p>1. Collision— Steamer at Pier and Tow.</p> <p>An ocean steamer was attempting to make her dock in the East river in the ebb tide. The bow of the steamer was made fast to the upper corner of pier 29, her stern swinging down, and just clearing the upper comer of pier 28. Her stern was from 15 to 20 feet from the pier. A tug with a tow was coming up the river, and the tow struck the steamer oil her port bow. The tug was not navigating in mid-stream, as the statute required, though nothing prevented her going in mid-river. She made no serious attempt to go to the right, as a tug with a tow just behind her did, though there was abundant time and opportunity for her to do so; nor did she stop and hack in time, as she might have done, had she not wished to go ont into the river in her proper place. Held, that the collision was the fault of the tug.</p> <p>2. Same — Contributory Negligence,.</p> <p>As the steamer had no reason to apprehend that vessels coming up from below against the tide, in plain sight of her, would run Into her without cause, and until a few moments before collision had a right to assume that 1he tug would stop her headway, or go to , the eastward of her, It. was not contributory negligence to fail to reverse, which would have Involved running into the pier with greater damage, and brought the bow of the steamer against the tow with greater force.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. Libel for collision.</p> <p>These are cross appeals from a decree of the district court, Southern district of New York, holding both vessels in fault for a collision which took place off Fire Island, a little before 2 p. m., September 5, 1898, between the schooner Frances M., of 1,096 tons register, and the Patria, an iron screw steamer of 2,200 French tons register.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama.</p> <p>This is an appeal from an interlocutory order entered in an equity case. The matters charged in the bill of complaint, briefly stated, are as follows: The complainant, E. T. Ide, is a citizen of the state of Vermont. Some time prior to the filing of the bill, one Edwin Underwood, who is also a citizen of Vermont, arranged with the defendant B. F. Richardson, a citizen of Massachusetts, that 50 shares of the capital stock of the defendant the Tredegar National Bank, owned by the former, should he transferred on the books of the company to, and a certificate therefor issued in the name of, the latter, and by him indorsed in blank to the former. This was done. Some time in September, 1900, Underwood authorized Richardson to sell this stock for him for 8106 a share. On September 20th Richardson gave an option to the 'defendant Orosby, who is also a citizen of Massachusetts, to take this stock at 8106 a share at any time within ten days or two weeks. The bill alleges that Underwood refused to recognize Richardson’s right to give this option, and further alleges that on September 24th Underwood “sold, transferred, and assigned” the stock to the complainant for'85,100, which was paid at the time of sale. The bill goes on to allege that the certificate for the stock was in Underwood’s safe in Boston, and. when the stock was sold to the complainant, Underwood informed Richardson of that fact, and sent him the keys of the safe, requesting him to obtain the certificate and return it to him for delivery, and that Richardson, instead of doing as requested, handed the certificate to Crosby, and received from him the price he had agreed to pay. It is further alleged that Underwood refused to receive this money from Richardson, and directed him to return it to Crosby, and that Richardson did so tender it, and demanded that the certificate of stock be surrendered, which Orosby refused and still, refuses to do. The bill further alleges that Orosby purchased the stock as the agent of, and holds it in trust for, the other defendants: that the defendants propose to have the stock transferred on the books of the hank to tho name of some one of them, and to vote at an approaching stockholders’ meeting; that the object of the defendants is. to obtain control of the bank, and to exclude the complainant and other st;oek: holders from participation in its management, to the irreparable injury of the complainant and of the bank. The relief prayed is (1) that the defendants be enjoined from assigning the stock or having it transferred to them on the books of tbe company, and from voting or attempting to vote the same at any Stockholders’ meeting; (2) that the transfer to the- defendant Crosby be, declared null and void, and that the defendants be required tov surrender it up to be canceled; and (3) that a certificate for tbe stock be decreed to be issued to the complainant.</p> <p>October 10, 1900,', the bill was presented to the Honorable John .Bruce, district judge of the district, who forthwith issued the injunction prayed for, without notice, and without hearing, and without bond. An application to dissolve and discharge this injunction was filed on October 24, 1900, based on grounds as follows:</p> <p>“(1) That there is no equity in the bill of complaint. (2) That the said injunction was granted improvidently and without notice to the defendants, and without showing that irreparable damage would ensue from delay in granting said injunction after notice. (3) On the ground that the complainant has a plain, adequate, and complete remedy .at law. (4) That the said bill fails to set up any facts sufficient which entitle the complainant to the interposition of a court of equity. (5) That this court has no jurisdiction of said cause, because indispensable parties cannot be made parties to the said bill, on account of nonresidence.”</p> <p>Notice was given of this motion, and the same was brought on for hearing before the Honorable David D. Shelby, circuit judge, who on November 7, 1900, entered an order as follows:</p> <p>“The motion to discharge and dissolve the injunction in this case filed Octob%r 24, 1900, having been submitted on briefs, and having been duly considered, it is now ordered, adjudged, and decreed that said motion be overruled, but without prejudice to the right of the defendants to renew the motion, if they think proper to do so, before the Honorable John Bruce, district judge,- who made the order granting the injunction.</p> <p>“At chambers, New Orleans, Louisiana. November 6th, 1900.</p> <p>“David D. Shelby, U. S. Circuit Judge.”</p> <p>On November 15th another motion to discharge and vacate the injunction was made on the following grounds:</p> <p>“(1) Because the same was granted without notice, and in violation of the law and the rules of the court. (2) That this court has no jurisdiction of the case, because indispensable parties cannot be made parties to the bill; they being nonresidents and citizens of other states^ who cannot be sued or made parties. (3) That the bill is without equity.”</p> <p>On .the 16th of November the defendants named in the bill filed a general demurrer to the same for want of necessary parties and for want of equity. On December 10, 1900, the following was entered:</p> <p>“The motion to discharge the injunction in this ease filed October 24, 1900, having been argued and submitted, and having been duly considered, it is now ordered, adjudged,-and decreed that said motion be denied and overruled, and that respondents making the same pay all the costs thereof, for which execution may issue.</p> <p>“At chambers, Montgomery, Alabama, Dec. 10, 1900.</p> <p>“John Bruce, U. S. District Judge.”</p> <p>On December 17th an appeal was allowed as follows:</p> <p>“Whereas, motion having been made to dissolve and'discharge an injunction heretofore granted against the defendants in said cause; and whereas, the motion was, on the hearing thereof, denied; and whereas, an appeal is desired by the defendants making said motion, from said order, — it is ordered that an appeal from said order refusing to discharge and dissolve said injunction, to the circuit court of appeals for the Fifth circuit, be allowed George H. Rowan and John F. Rowan and others, the defendants herein making said motion, returnable to the present term of the U. S. circuit court of appeals for the Fifth circuit, on giving bond in the sum of two hundred ($200) dollars, conditioned according to law; such appeal, however, not to operate as a supersedeas.”</p> <p>On the 8th of February, 1901, the appellee appeared in this court and moved to dismiss the appeal on the following grounds, to wit:</p> <p>“(1) For that the order from which this appeal was taken was rendered more than thirty days before the taking of the same, and is therefore barred. (2) For that said order will not support an appeal. (3) For that this' court is without jurisdiction to entertain said appeal.”</p> <p>Afterwards the appellee, on leave of the court, supplemented the above with the following:</p> <p>“(4) No assignment of errors was hied in the lower court at or before the taking of the appeal or since.”</p> <p>On ilie 11th of February counsel for appellants filed in this court a motion as follows:</p> <p>“Peyton Rowan and others, appellants in the above cause, move the court for a mandamus to the lower court, or for a prohibition or other remedial writ, commanding the vacation and disssoiution of the injunction heretofore granted therein.”</p>

<p>1. Cikcuit Court of Appeals — Jurisdiction—Injunction—Statutes—Amendment — Repeal.</p> <p>Tlie act of June 6, 1900, providing that section 7 of the act of 1.891, relating to the jurisdiction of the circuit court of appeals as to injunction cases, should he amended to read as therein prescribed, is valid, notwithstanding it purports to amend a section of the act which had already been amended hy the act of February 18, 1895, to.which it.did not refer, and its enactment necessarily operates to repeal the latter amendments</p> <p>2. Same — Appealable Order.</p> <p>An order appointing a receiver directed a party to deliver to him possession of property in controversy, and enjoined him from interfering with the receiver’s possession, and thereafter an order was entered dismissing an application to set the injunction aside. Held, that the latter order was not equivalent to an order continuing the injunction, within the meaning of the act of June 6, 1900, amending section 7 of the judiciary act of 1891 (26 Stat. 828), and authorizing appeals from such orders to the circuit court of appeals.</p>

These two bills in equity, which were brought in the circuit court for the Southern district of New York, are founded upon substantially the same facts* but the legal liability of the defendant is presented in-the respective bills in a different form.

<p>,1. Receivers — Interference with Assets — Relief by Petition.</p> <p>Relief from interference with assets belonging to a receiver appointed by the circuit court may be obtained by petition, instead of by bin against the wrongdoer, whether they have ever been in the receiver’s possession .or not.</p> <p>2. Same — Assets of Railroad Company — Subscriptions for Building Road.</p> <p>'A town voted aid to "a proposed railroad, conditioned on aid from other towns, which was partly subscribed by individuals, payment to be made when the road was completed, and a party agreed in writing to act as trustee-in collecting the individual subscriptions for the company, but the subscription papers were never committed to him. He collected nothing, and nothing accrued on the subscriptions before a receiver was appointed -for the railroad company. Before the latter’s appointment, however, the vice’ president, who was - also- a member of the executive committee for building the road, indorsed the trustee’s agreement with an order to pay the amount specified therein to T., who was active in furthering the enter- . prise, and had performed some services and made some expenditures about it after the company was organized. Held, that conceding that the vice president was authorized by the executive committee to indorse bills and cheeks, and to pay for labor, etc., and that they agreed T. should have the subscriptions for his services and- disbursements, he could not retain.the subscription papers without leave of court, as against the receiver, as the agreement was wholly executory, and his claim should be submitted to the -court, and besides they might be important to the receiv'er in connection with the vote of the town first referred to.</p>

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

<p>L Corporations — Statutory Liability of Officers — Arkansas Statute.</p> <p>Sand. & H. Dig. Ark. § 1337, requires the president and secretary of every corporation to annually make and file a certificate showing the condition of the affairs of'the corporation in certain designated particulars either on the 1st day of January, in which case the certificate shall be filed on or before February 15th following, or on the 1st day of July, in which case it shall be filed on or before August 15th following. Section 1347 provides that, if such officers shall neglect or refuse to file such certificate, they shall be jointly and severally liable to an action founded on the statute for all debts of the corporation “contracted during the period of any such neglect or refusal.” HeZ<f, that under such statute the officers had their election as to whether the certificate should relate to January 1st or July 1st, but that it must be filed each year not later than August 15th, and that, if not so filed, the officers were individually liable for any debt thereafter contracted by the corporation during the remainder of the year.</p> <p>8. • Same — Limitations.</p> <p>A right of action to enforce such statutory liability accrues at once when, the debt of the corporation is contracted, and continues for three years under the statute of limitations of the state; and the time for bringing 'the action cannot be extended beyond such three years by extensions of the note of the corporation by which the debt is evidenced; the action being based upon the statute, and not upon the note.</p> <p>8. Same — Pleadino.</p> <p>A complaint in an action against the president of a corporation to enforce his individual liability under such statute must clearly state the date when the debt of the corporation was contracted, and facts showing that at such time the officers were in default for having failed to file the certificate required by the statute for the then current year.</p>

<p>1. Villages — Tax to Pay Interest on Indebtedness — Authority and Duty to Levy — Limitation.</p> <p>Rev. St. Ohio, § 2683, suM. 22, provides that a village council may levy annually, to pay interest on its public debt and provide a sinking fund, a sum sufficient to satisfy the interest as it accrues, annually, to be applied to no other purpose, and section 2689a limits the aggregate of all taxes levied to eight mills. Held, that the first provision authorized and required it to make the prescribed annual levy and apply it In payment o£ accrued interest on its debts, and that section 208!>a assumed that interest on any debts it was allowed to'incur could be paid from an eight-mills levy, leaving enough for current expenses, which could only be defrayed from the amount remaining after payment of such interest, notwithstanding it might need for such expenses the money arising from the levy for interest.</p> <p>2. Same — Iktrkest Coupons — Mandamus to Compel’Payment.</p> <p>It is no objection to mandamus to compel a village to apply, in payment of interest coupons sued on by relator, the full amount of moneys levied to pay interest on its debts, that there may be others holding similar coupons, but not parties to the cause, entitled to distribution from the fund, since they would not be thereby ultimately deprived of the right to collect such claims as they may have.1</p>

<p>Limitations — Ejectment—Adverse Possession.</p> <p>Lands in Arkansas owned in common by partners, and held as a part of the partnership property, after the death of one of the partners, were attached and sold by creditors of the firm as the property of the survivor. The purchaser and his grantees took possession, and held the same openly arid notoriously for more than 25 years before any claim was made on behalf of the heirs of the deceased partner, when an action of ejectment was brought by them to recover the land. One of the plaintiffs, who was a sister of the decedent, had been a married woman since a time prior to his death. Held, that the other plaintiffs, who were adults, were barred from any right of recovery by the seven-year statute of limitation of the state (Sand. & H. Dig. § 4815), but that under the saving clause in such statute the married woman plaintiff was entitled to recover her interest, with its rental value for three years prior to the commencement of the action, as damages; the recovery of previous rentals being barred by section 4822.</p>

<p>Indorsement of Check — Bona Fide Purchaser — Presentment—Unreasonable Delay — Drawer’s Liability.</p> <p>Several weeks after a check was drawn and indorsed by the payee to an innocent purchaser for value, the drawer, in reliance on the payee’s fraudulent representation that he had lost or mislaid it, and on his agreement to return it, overpaid the latter the full amount thereof on a settlement between them, though he would not have done SO' if the holder had promptly presented the check for payment. Held, that he was liable thereon notwithstanding the holder’s unreasonable delay, as the overpayment was due proximately to his imprudent reliance on the payee.</p>

<p>1. Wrongful Attachment — Replevin against Sheriff — Rtgiit to Maintain.</p> <p>1 Burns’ Rev. St. Ind. 1894, §§ 1286, 1287, provide that when personalty, wrongfully taken on execution or attachment, is claimed by any person other than defendant named -in the writ, the owner or claimant may sue for its possession, and that, if plaintiff wishes an immediate delivery, he must file a bond and affidavit, stating that it had not been taken for taxes, assessments, or fines, or seized under execution or attachment against his property, or, if so seized, that it was exempt. Held to authorize any person, other than the defendant to a writ of attachment, to sue in replevin against a sheriff who, professing to act under the writ, has wrongfully seized the personalty of such person, and that the rule of comity against the disturbance of property in the custody of one court by process from another of concurrent jurisdiction was thereby abrogated.</p> <p>8. Same — Jurisdiction of United States Circuit Court.</p> <p>The judiciary act of March 3, 1887 (24 Stat. 552). as re-enacted and re-enrolled by the act of August 13, 1885 (25 Stat. 433), provides that the United States circuit court shall have original cognizance, concurrent with the,-courts of'the several states, of all civil suits, at common law or in equity, in which there shall he a controversy between citizens of different states, involving a matter in dispute to the amount of $2,000, exclusive of interest and costs. Held to entitle the circuit court to original jurisdiction of an action of replevin authorized by 1 Burns’ Rev. St. Ind. 1894, § 1286, against a sheriff holding property under a wrongful execution or attachment, the requisite diversity of citizenship and the amount in controversy being admitted.</p> <p>8. Same — Necessary Parties — Joinder of Defendant in Official Capacity.</p> <p>It is unnecessary, in replevin against a sheriff personally for a wrongful attachment, to join him as a party defendant in his official capacity, as he does not act within his authority when he makes such an attachmenb and the writ affords him no excuse or protection.</p> <p>4 Same — Complaint—Statement of Cause of Action — Sufficiency.</p> <p>In replevin against a sheriff for attached property, the complaint alleged that plaintiff was the owner and lawfully entitled to its immediate possession, describing it, and that it was the same property which defendant, as sheriff of D. county, Ind., wrongfully levied on under a writ of attachment issued in a cáse described, and which defendant, as such sheriff, then had and held in his possession under the writ. It further averred that defendant held possession without right, and unlawfully detained the property from plaintiff, in said county and state, to his damage in an alleged sum, and that the property -was not taken for a tax, assessment, or fine, pursuant to any statute, or seized under execution or attachment against plaintiff’s property, and that it was wrongfully taken from him, and unlawfully detained by defendant. Eeld to state facts sufficient to constitute a cause of action, under 1 Burns’ Rev. St. Ind. 1894, §§’ 1286, 1287-</p>

Suit to recover a balance claimed for labor performed and materials furnished in executing a contract for the construction of the Gray’s Harbor light house and fog-signal station. Hearing on the merits. Findings and judgment in favor of the plaintiff for the full amount of the contract price and the value of extras.

<p>Anti-Trust Law — Restraint of Interstate Commerce.</p> <p>A' combination controlling not only the manufacture of an article in the state, but also the sale of the manufactured article, is not one in restraint of interstate commerce, so as to give a right of action against it, under the anti-trust law of July 2, 1890, to one injured by a resolution passed and circulated by it denouncing him for cutting prices, its sales being within the state, and any transportation and sale of the article in other states being by other agencies.</p>

<p>1. Dismissal — Right of Plaintiff.</p> <p>It is a general rule in the federal courts, subject to special exceptions, that a plaintiff at law or a complainant in equity may discontinue his action or dismiss his bill as of course at any time before the hearing, on payment of costs; and especially should such rule be followed where the action is at law, and the plaintiff is given such right by the law of the state.</p> <p>2. Same — Imposition of Terms — Payment of Costs in Another Court.</p> <p>Plaintiff commenced an. action at law for personal injury in a state court. Defendant filed a petition for removal, which was denied; hut it caused a copy of the record to be filed, and the cause docketed in the federal court, which refused a motion to remand. The action was tried, and a judgment rendered in the state court, which was set aside by the supreme court of the state on the ground- that the lower court erred in not ordering the removal. Thereupon plaintiff appeared in the federal court and obtained ex parte an order granting him leave to discontinue the action on payment of the costs of that court, including the costs of removal. Held, that such order was properly granted, and that defendant was not entitled to have plaintiff required to pay the costs of the state court, as one of the terms of such discontinuance, being entitled under the law of the state to judgment for such costs in the state court.</p>

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

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

<p>Factors — Sale- -Validity — Bona Fide Purchaser — Factor’s Act — Conversion.</p> <p>J. & Co., factors in Pennsylvania, received a consignment of wool from another Pennsylvania factor, and made advances, without notice that their consignor was not the actual owner. J. & Co. shipped the wool to Massachusetts, to purchasers; but, before delivery, defendant seized the same in replevin, and, being unsuccessful in the suit, defendant elected to hold the wool and pay its full value, with damages, under a stipulation with J. & Co.; whereupon plaintiff, the original owner, brought trover for its conversion. Held, that the stipulation amounted to a sale, which J. & Co.’s consignors had a right to make under Pennsylvania Factor’s Act, § 3, declaring that, where a factor disposes of or pledges property in his possession as security for advances, the transferee acquires the title; and hence defendant acquired a good title to the wool from J. & Co., and plaintiff could not recover.</p>

<p>Note — Consideration—Assessment on Stock of Insurance Company.</p> <p>It being the duty of the insurance commissioner to make requisition for an assessment on the stockholders of an insurance company, to make up the deficiency where its capital has been impaired, and, if i.he deficiency is not made up, to notify the attorney general to commence action for dissolution of the company (Pol. Code Cal. §§ 600, 601), there is consideration for a note given by a stockholder to satisfy an assessment made pursuant to such a requisition, though the assessment is technically defective.</p>

<p>1. Contractor's Bond — Liability of Sureties.</p> <p>Sureties on a bond of a contractor, conditioned for payment of persons supplying him'with “labor or materials,” are not liable to a bank which, under an arrangement to supply the contractor with funds, pays the time checks given the laborers and the orders given the material men; the same being indorsed merely as evidence of payment, without any assignments of the claims being made.</p> <p>2. Action on Bond — Judgment against Principal.</p> <p>Judgment by default against tbe principal in an action on a bond against principal and sureties is, at most, only prima facie evidence agajnst the sureties, who put In issue their liability, and incidentally that of the principal.</p>

<p>1. Rebuttal — Cumulative Evidence — Discretion of Court.</p> <p>Plaintiff, in an action for an injury received by him, while in defendant’s employ in a coal mine, from explosion of gas, through the alleged negligence of the fire boss in failing to attend to the ventilation on complaint of plaintiff, having in his ease in chief given evidence of the nature of the duties of the fire boss, and defendant having met this by evidence that a published rule of defendant required complaint to be made to the-mine foreman, and that no one but him had any right to interfere with the ventilation, it is in the discretion of the court to refuse to receive on rebuttal testimony that it was the duty of the fire boss to attend to ventilation on complaint; this being but cumulative evidence of what plaintiff was required to prove in opening his ease.</p> <p>2. Master’s Duty — Instructions—Statutes.</p> <p>The question of the duty of a coal-mine owner as regards ventilation being controlled by a statute providing for ventilation by certain means and in a certain manner, it is sufficient for the court, in instructing as to the master’s duty, to read the statute.</p>

<p>In Bankruptcy.</p>

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

<p>On Motion to Vacate Order Appointing Receiver.</p>

<p>1. Bankruptcy — Statement of Claims — Amendment.</p> <p>Amendments to a creditor’s claim against a bankrupt are allowed for tlie correction of misdescriptions and minor inaccuracies in tile statement of substantially the same claim, but not to state a new claim after the expiration of the time for filing claims; and the sufficiency of the amended proofs is to be determined on their face, irrespective of prior proofs, except as to whether they are for substantially the same claim.</p> <p>2. Same — Verification.</p> <p>The verification of a creditor’s claim against a bankrupt is amendable.</p> <p>3. Same — Claims Founded on Instruments in Writing.</p> <p>Bankr. Act 1898, §§ 57a, 57b, require in a statement of the consideration for and payments on claims founded on instruments in writing more than general allegations in these respects, which might be sufficient in a declaration against the bankrupt thereon, and extend to the particulars thereof, for the trustee’s information and those interested in the estate, but not beyond what relates to the claim as it accrued to the claimant</p> <p>4. Same — Prima Facie Invalidity.</p> <p>A large part of a creditor’s claim was against bankrupts as accommodation indorsers of 11 notes, set out, for tlie amount of which, with 12 others, also set.out, another note was given by the maker, with other security, and to which these 23 notes were placed in a bank as collateral, on which payments were to apply as that note should be paid, and which was largely paid, without specific application on any of the indorsed notes. The new note was stated to have been substituted May 5, 1895, for the 23 notes because they were overdue, when in fact they were not all overdue, and the claim as amended showed the change was not made till May 27th. The new note did not appear to have given time, but to have been made due not later than on demand; and the claim also-stated that a part of..the arrangement was that the old notes- were to be kept in force. Held, that the date of the change, and whether the indorsed notes were overdue, were not so material that a misstatement respecting them should ipso facto defeat the claim, which was not for the new note, which apparently did not pay the old ones or extend the time for their payment, and thus discharge the indorsers, and hence the claim should not be rejected on its face.</p> <p>5. Same — Facts' not Conclusively Implied — Necessity of Proof.</p> <p>A material fact which cannot be conclusively implied from the statements of the proof of a claim against a bankrupt must be found on a trial thereof.</p> <p>6. Bills and Notes — General Payments — Application—Presumption.</p> <p>It is legally presumed that payments made generally on notes are intended to be applied in the order of their maturity.</p>

<p>la Bankruptcy.</p>

The following is the opinion of WISE, Referee: The facts relevant to the issue herein and established by the evidence may be briefly stated as follows: The bankrupt, Abraham Pheinbaum, was on and prior to August 16, 1900, a manufacturer of clothing, occupying a loft in the premises, 21 West Third street, New York City.

<p>1. Discharge in Bankruptcy — Pleading Answer as Defense — Assumptions on Demurrer.</p> <p>In passing on a demurrer to an answer setting up a discharge in bankruptcy, the court must assume that every step in the bankruptcy proceeding prior to and at the time of discharge was in all respects regular and complied with every requirement of the act, and hence must assume that notice was given to defendant’s individual and partnership creditors, and that an inventory of all his individual property an'd of all his beneficial interest, if any, in a firm of which he was a member, was fully scheduled.</p> <p>2. Same — Release from Partnership Debts.</p> <p>Bankr. Act 1898, f 5, par. “h,” provides that, where one member of a firm becomes bankrupt, partners not adjudged bankrupt shall wind up the business and account to the trustee for the bankrupt’s sháre; section 18 provides that the discharge of a bankrupt shall not alter the liability of his partner; and section 5, par. “g,” provides that the court may permit the proof of claims of the partnership estate against the individual estate, and vice versa, and may marshal the assets of both estates to prevent preferences, and secure an equitable distribution of the property of the several estates. Held, that these provisions, in connection with the general intent of the law to release a bankrupt from all his indebtedness, authorized a discharge from partnership debts, and hence that a bankrupt’s discharge must be held to have released him therefrom.</p>

<p>1. Bankruptcy — Revocation of Discharge — Grounds.</p> <p>A voluntary bankrupt some years before the filing of his petition had taken possession of and improved certain land within the limits of a railroad grant, intending to purchase from the railroad company should it acquire the title. The grant was subsequently declared forfeited, and a homestead entry was filed on the land by a third person, which was unsuccessfully contested in the local land office by the bankrupt, and the homestead claimant took possession and seeded the land to crop. While the matter stood in this position the bankrupt filed his petition, and in due course was discharged without objection. Under advice of his attorney, he did not schedule any interest in the land or crop, but the facts were fully stated to his trustee. Some months after his discharge the decision of the local land office was reversed on appeal, and the bankrupt was held entitled, under the forfeiture act and Act Jan. 23, 1896 (29 Stat. 4), to purchase the land from the United States by reason of his prior settlement and improvement. Held, that there was no fraud in his failure to schedule the land which would justify a revocation of his discharge; nor did he in fact have any transferable interest therein which could have been made available for the benefit of his creditors.</p> <p>9. Same — Knowledge of Facts by Trustee.</p> <p>Revocation of a discharge for alleged fraud which is shown to have come to the knowledge of the petitioner since the discharge was granted will not be allowed where the trustee had knowledge of all the facts prior to the discharge, which knowledge is to be deemed that of the creditors whom he represents.</p>

<p>In Bankruptcy. On demurrer to petition for want of jurisdiction.</p>

<p>Customs Duties — Religious Figures.</p> <p>Certain figures five feet six inches in height, representing religious subjects, and scenes in the life of the Saviour, composed of pulverized stone, cement, plaster of Paris, and other materials, and colored and otherwise decorated, were properly assessed for duty' under Act July 24, 1897, pars. 97, 450, at 45 per cent, and 35 per cent, ad valorem, as manufactures of plaster of Paris not specially provided for, or as articles and wares composed wholly or in chief value of earthy or mineral substances not specially provided for; and were not exempt from 'duty, under paragraph 049 of said act, as casts of sculpture imported in good faith for the use of a society incorporated for religious purposes.</p>

<p>Cross’ Appeals from a Decision of the Board of United States General Appraisers.</p>

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

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

<p>Customs Duties — Olive Nuts.</p> <p>Ground olive nuts are improperly classified for duty as drugs, such as 'nuts not edible, advanced in value by grinding, “one-fourth of one cent per pound and ten per centum ad valorem,” under Act July 24, 1897, par. 20.</p>

<p>Customs Duties — Tafestkiks.</p> <p>Articles known as “tapestries,” and not commercially known as "pile fabrics,” though a portion thereof has a pile surface, are improperly, assessed for duty as “pile fabrics,” at $1.50 per- pound, under Act 1894, par. 299, but are within the provisions of paragraph 302 of said act.</p>

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

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

<p>Customs Duties — Whips;</p> <p>Holly whips, kept for sale by carriage men and hardware men, are improperly classified for duty as “saddlery” under Act July 24,. 1897, par. 447, but are dutiable under paragraph 208. of said act as manufactures of which wood is the component material of chief value, not specially provided for.</p>

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

<p>1. Criminal Law&emdash;Trial&emdash;Motion in Arrest&emdash;Insufficiency of Indictment.</p> <p>Judgment will not be arrested on motion for insufficiency of the indictment if any one of tbe counts therein is good.</p> <p>2. National Banks&emdash;Misapplication of Funds&emdash;Indictment of Accessory&emdash; Sufficiency.</p> <p>A count in an indictment for aiding tbe misapplication of national bank funds in violation of Rev. St. §' 5209, with ample allegations of fraudulent intent and purpose, 'distinctly charged embezzlement by the cashier of a national 'bank on many different days and times between May 24, 1897, and March 24, 1900, for the benefit and gain of defendant, by a pretended discount of paper contrary to the express direction of the directors, whereby defendant obtained $140,000 of its moneys and funds, and converted the same to his own use. Held good .on a motion in arrest, in view of section 1024, declaring the form of an indictment to be immaterial, provided the substance is there; the word “embezzlement,” as used therein, showing a misapplication by the cashier of the property in his official possession, within the meaning.of the statute, and the punishment prescribed being not so much for each offense, but so much for every officer or agent who commits such offenses, and every person, who aids or abets, irrespective of the number of times.</p>

<p>.Extradition — Embezzlement—Partnership.</p> <p>It being provided by a treaty under which extradition of a person on the charge of embezzlement is sought that the evidence of criminality must he shown according to the laws of the place where he is found, and the laws of Oregon not allowing one to be held for embezzlement where ownership of the property was in part in him, or he was a partner in the business from which the fund was derived, extradition will be denied, on testimony that he and others went “in together” in the business from which the money was derived, on an agreement that it should be carried on in the same name as before he was connected with it, and that he should have 4 half the profits, though putting in no money, and thongh nothing was said about sharing losses, none being contemplated.</p>

<p>1. Patents — Invention—Electric Switches.</p> <p>The Thomson patent, No. 283,167, for improvements in electric switches or commutators, as to claims 1 and 4, the essential feature of which is the use of a magnet to dissipate, or prevent the formation of, an arc between the separated parts of the conductor when an electric current is broken by means of a switch, for the purpose of preventing the burning of such parts,- is void for lack of patentable invention. The influence of a magnet on the arc formed In a disconnected circuit was previously well known, and the result of preserving the contact points of an electric switch from injury by combining a magnet with such switch, which is the essence of the claims of the patent, is so much a part of the known rosult of its action that it cannot he claimed as a new discovery or render the combination patentable.</p> <p>.2. Same.</p> <p>The Thomson patent, No. 401,085, for a shield designed to retain the arc formed in breaking an electric circuit, by means of a switch, within the field of a magnet, used, in combination with the switch, to rupture or dissipate such arc, and prevent the burning of the electrodes, and which, as described in claims 1 to 6 of the patent, consists in covering the poles of the magnet, or the electrodes, or both, with a coating of insulating material, such as enamel, is void for lack of patentable invention; being merely the application to a new device of well-known mechanical means of insulation to accomplish the old result of preventing the injurious escape of an electric current.</p>

<p>Appeal from tlie Circuit Court of the United States for the District of Connecticut.</p> <p>This is an appeal from an interlocutory decree of the circuit court, district of Connecticut, finding infringement by defendant of two patents owned by complainant. Both were issued, on the same day, March 22, 1887, to Bernice-J. Noyes, assignor to the Municipal Signal Company of New Hampshire, the predecessor of- complainant, which is a Maine corporation. The patents are No. 359,687, with eleven claims, of which the first two only were held to be infringed, and No. 359,088, with five claims, all of which were held to be infringed. The first claim of No. 359,687 (hereinafter called ’87) and the five claims of No. 359,688 (hereinafter called ’88) were sustained in the First circuit by Judge Colt at circuit (Municipal Signal Co. v. Gamewell Fire-Alarm Tel. Co. [C. G.] 52 Fed. 464), and by the circuit court of appeals (10 C. C. A. 184, 61 Fed. 948), Judge Putnam dissenting as to No. ’88.</p>

<p>1. Patents — Validity—Insertion of New Clatm in Application.</p> <p>The fact that a new claim is inserted in an application for a patent by the attorneys for the applicant, without any new oath, does not render the patent invalid as to such claim, where it was within the invention described in the specification.</p> <p>2. Same — Presumptions—Effect of Decision of Patent Office.</p> <p>The decision of the patent office in interference proceedings as to priority of invention in favor of the later of two applicants, while not conclusive on the courts, overcomes the presumption in favor of the other inventor arising from priority of his application, and the presumption of validity attaches' to the patent granted on the later application.</p> <p>3. Same — Contributory Infringement — Process Patent.</p> <p>The selling of machines to the trade, designed to he used in employing a patented process, constitutes contributory infringement.1</p> <p>4. Same — Process of Wrapping Cigars.</p> <p>The Hammerstein patent, No. 201,849, for a machine for use in wrapping cigars, and method of using it, is void for lack of patentable novelty as to claim 2, which covers the machine, — similar machines having been in prior use in related arts,- — hut is valid as to claim 1, which describes the process by which the machine is applied to the art of cigar making. Claim 1 also held infringed.</p> <p>5. Same — Machine for Cutting Cigar Wrappers.</p> <p>The Hammerstein patent, No. 315,408, for a machine for cutting cigar wrappers, used in connection with the machine for wrapping cigars described in patent No. 261,849 to the same patentee, discloses patentable invention, was not anticipated, and is valid. Claims 1 and 3 also held infringed.</p>

<p>1. Shipping — Cargo Damage — Negligent Discharge.</p> <p>It is the duty of a ship to pay attention to any extraordinary circumstances that evidently affect her stability while discharging, and to regulate her mode of discharge accordingly, so as not to endanger the cargo. Negligence in such regard, which results in damage to cargo, is not a fault in the “management of the ship,” within the exemption of the third section of the Harter act, but rather in the care or proper delivery of the cargo, within the meaning of the first section, from which she is not exempt from liability.</p> <p>Si Same — Steamer Topiieavy prom Ice.</p> <p>A ship on entering port at New York during extremely cold weather in February was coated above her deck with some 200 tons of ice, which rendered her toplieavy and gave her a list to starboard of 4° to 5° even when laden. Being several hours late, in order to be ready for her outward voyage the master commenced discharging immediately and rapidly, at the same time taking in coal on both sides, the most of which was stowed above the water line. After most of her cargo in the lower hold had been discharged, and her list had increased to about 8°, she rolled over to port; and in doing so the cover of a coal port on that side was broken off, leaving the opening only about a foot above the water. By shifting cargo and stopping the loading of coal on the port side, she was again rolled back, but no means were taken to close the open port, and the loading of coal proceeded until she was nearly filled to the main deck. The wind had been strong all day, and in the evening increased to a velocity of 52 miles, but the ship was protected on either side to a considerable extent by buildings on the piers. About 5 hours after she first rolled to port, and when her list to starboard had greatly increased, she again went over, and, carrying the open port below the water, filled and sank, damaging the cargo on board. Held, that the damage could not be attributed to the wind to such an extent as to relieve the ship from liability, since she would not have been endangered but for her unstable and topheavy condition, due to the negligent and inconsiderate manner of unloading her cargo, without any regard to the great weight of ice above her deck, and to the equally negligent loading of the coal and failure to close the open port, all of which was negligence of the ship in handling the cargo, for which she was not exempted either by the Harter act or her bills of lading.</p>

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

<p>Appeal from the District Court of the United States for the District of Eh ode Island.</p>

This cause comes here upon appeal from a decree of the district court, Eastern district of New York, holding the Hudson City solely at fault for collision with libelant’s scow in tow of the tug, and condemning her for the damage to the scow, being $5,722.96.

<p>1. Taxation— Assessments— Discrimination — Injunction—Interference of Federal Court.</p> <p>Every presumption being in favor of the propriety of the action of assessment officers, and errors of judgment on their part not being a subject for injunction, proof that systematic discrimination is_ being made against a complainant corporation must he clear and convincing, and conclusively preponderate over opposing evidence, before a federal court will interfere by injunction in its behalf.</p> <p>2. Same — Jurisdiction of Federal Courts.</p> <p>Jurisdiction of a. federal court having been properly invoked for relief against assessments as discriminating against complainant, and thus depriving it of the equal protection of the laws under the fourteenth amendment, the bill, where complainant fails to show discrimination, may be retained to administer relief on other grounds; though the state courts could afford adequate remedy.</p> <p>3. Same — Illegal Taxation — Relief in Equity — Inadequate Remedy at Daw.</p> <p>A suit in equity lies to enjoin illegal taxation in Kentucky, as the statutes of that state do not afford an adequate remedy at law.</p> <p>4. Same — Corporate Stock — Affidavit for Injunction — Sufficiency.</p> <p>In support of an injunction against the taxation of corporate stock belonging to complainant, a Kentucky corporation, its president made affidavit that it owned the stock of the M. Co. in question; that it stood on its hooks at a specified value, and formed a part of complainant’s reported capital and surplus; and that the M. Co. was a Kentucky corporation, and as such pays taxes on its property and franchises. Held, in the absence of contradiction, to fairly establish that the Al. Co. was a Kentucky corporation, which paid taxes on its property and franchises, thus excluding complainant, as an individual stockholder, pursuant to Ky. St. §'§ 4085, 4088, from taxation on its holdings therein.</p>

Appeal, from the Circuit Court of the United States for the Eastern District of Texas, On October 13, 1897, the Guaranty Trust Company of New York, as complainant, filed its hill against the Galveston City Railroad Company, as defendant, for the foreclosure of a mortgage executed by the defendant upon its entire system of railways and other property, particularly described therein, then owned by it in the city of Galveston, or that should be thereafter acquired by…

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

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

<p>1. Injunction — Proceedings for Contempt — Constkuction of Order.</p> <p>On granting an injunction restraining subcontractors from hindering the completion of the work of constructing a railroad by the contractor, a reciprocal order required complainant, on defendants submitting their pay rolls, to pay their and their subcontractors’ obligations to their “laborers and employes * * * and subcontractors, of whatever grade, including time keepers, foremen, and office clerks,” whose names appear on the pay rolls. Held, in contempt proceedings, that the words “of whatever grade” referred to “employes” and not to subcontractors, and applied to laborers and employés of every grade-, including time keepers, foremen, and office clerks, whose names appeared on the pay rolls and time sheets for the time covered, and to no more, and that the order did not cover supplies, materials, use of boats, or horse hire, nor board of men, except in connection with their wages, nor any labor or service outside of the time specified in the requirement.</p> <p>2. Same — Performance of Order — Duty of Contemner.</p> <p>A bill for wages ordered to be paid to a railroad subcontractor by complainant in a bill for injunction against the contractors to restrain them from hindering complainant from completing' the construction was not paid by the orator, owing to a misunderstanding between its treasurer and agent. Held, in proceedings for contempt, that such misunderstanding' should have been removed by complainant and the bill paid.</p> <p>S. Same.</p> <p>A reciprocal order made on granting an injunction restraining contractors from hindering the taking over the work of constructing a railroad required complainant to pay wages due from the contractors and their subcontractors. Held, in proceedings for contempt, not to include wages which could not be paid without paying claims not included therein.</p>

<p>1. Assessment Insurance — Beneficiaries—Right to Designate Sister not Dependent on Assured for Support.</p> <p>The charter of an assessment insurance company declares that its object is to promote benevolence and charity by establishing a widows’ and orphans’ benefit fund, from which ,on the death of a member a sum not exceeding a specified amount shall “be paid to his family, or as he may direct.” The society’s laws relating to the surrender' and reissue of certificates declare that a member in good standing may surrender bis certificate, and a new certificate shall thereafter be issued, payable to such beneficiary or beneficiaries dependent on bim, or to any person or persons on whom he may be dependent, as be may direct, etc. Another clause of the same section provides that on his furnishing proof that the certificate is beyond bis control, and on payment of a specified fee, a new certificate may issue, “payable to such relative or dependent” as he may direct. Elsewhere the laws provide that each member shall enter on bis application the name or names and relationship of the members of his family, relatives, or the names of those dependent on him, to whom he desires his benefits paid, etc. Held to authorize a member to designate as beneficiary a sister not actually dependent on him for support.</p> <p>3. Same — Designation as Beneficiary — Relationship as Consideration— Validity.</p> <p>The relationship existing between a member of an assessment insurance company and his sister constitutes, in law, a good and valid consideration for his designation of her as beneficiary.</p>

<p>1. Railroad Construction — Contract—Estimates of Engineer — Mistake or Eraud — Equity Jurisdiction.</p> <p>A hill by contractors on a railroad construction contract based on mistake or fraud in the estimates' of defendant’s engineer, whom the contract undertook to make an arbitrator as to quantities of work and most other questions which might arise under it. discloses a subject for equity jurisdiction.</p> <p>2. Same— Proper Parties.</p> <p>A hill hy contractors on a railroad construction contract against the construction company and the railroad company alleged that the former company was a myth representing the railroad company ‘which was sought to he followed. Held that, if these allegations were true, the railroad was liable, and both were proper parties.</p> <p>3. Same — Agreement to Pay Contractors — Release of Guarantor.</p> <p>A release of a guarantor of a railroad construction company's agreement to pay contractors for their work, resulting from an extension of time for its completion without the guarantor’s assent, would not release the latter from liability for what had been done before the extension. '</p> <p>4. Same — Multifarious Bill.</p> <p>A bill against a railroad construction company and others alleged a contract with it to build a road, to be paid for at a specified price per cubic yard, on estimates of tbe company’s engineer, which were claimed to be either mistaken or fraudulent, and to have resulted in plaintiffs’ failure to complete the work within the agreed time, on account of which they were excluded therefrom. Alleged guarantors of the company’s agreement to pay for the work were also- alleged to have agreed, for the purpose of inducing the contract, to pay plaintiffs an additional five cents per cubic yard. Held that, if the fraud or mistake was shown, an account of the work done by plaintiffs was necessary, both as to the construction company and its guarantor, and that the alleged contract of guaranty and to pay the additional five cents per cubic yard were ancillary to the main contract, and hence making both the guarantors and promisors parties to the bill for such accounting did not render it multifarious.</p> <p>5. Joinder of Officers with Corporation Db:fendant.</p> <p>Joinder with a defendant corporation of its officers who took part in the transaction on v^hich the suit was based was proper, though no decree against them personally may be appropriate.</p>

District of Ohio. The bill in this cause was filed in the circuit court by the United States Board & Paper Company, the appellee here, for the purpose of obtaining a decree annulling certain certificates of stock in the corporation complainant alleged to have been unlawfully obtained by Browne, Stuart, Bell, Province VI.

On April 13, 1882, the city of Austin entered into a contract with the City Water Company, which contract is the basis of this suit. That contract is set out in full in the statement of facts in the case of Bartholomew v. City of Austin, 29 C: C. A. 5G8, 85 Bed. 359, and it will consequently be referred to here when necessary without incumbering the statement, of the case or the opinion with the entire contract.

J. M. Glover, defendant in error, brought this suit in the court, below against the Mexican Central Railway Company, limited, plaintiff in error, to recover damages against said railway company for personal injuries alleged to have been received by said Glover in the republic of Mexico, while an employé of said company, in jumping from the engine of which ho was fireman, when, it was about to collide with a train standing on the main track of said company's line.

In Error'to the Circuit Court of the United States for the Western District of Michigan, This action was- brought by defendant in error against plaintiff in error to recover for the reasonable value of labor done and materials furnished in the construction of á court house for plaintiff in error, and damages for being prevented from the execution of a contract, which the plaintiff in error undertook to rescind, and the further execution of which by the defendant in .error…

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

<p>1. Superintendent of Mint — Loss of Public Moneys — Liabilities on Bond.</p> <p>Whether the superintendent of a mint was at fault or not, he and his sureties are liable on his bond “for the faithful discharge of his duties” for the loss by fire of public moneys which the law required him to keep safely, and pay over when required.</p> <p>2. Same — Action for Loss — Right to Credit.</p> <p>In an action against the superintendent of a mint for a loss of public moneys, he is not entitled to a credit where the claim therefor was not shown “to have been presented to the accounting officers of the treasury, and to have been disallowed in whole or in part,” etc., as required by Rev. St. § 951, as a condition precedent to its being admitted on the trial.</p> <p>8. Same — Defense—Plea of No Damage.</p> <p>No damage is not a good plea in defense to an action against a mint superintendent to recover on his official bond, conditioned “for the faithful discharge of his duties,” for a loss by fire of moneys which his bond required him to keep safely, and pay over when required.</p> <p>4. Same — Recovery of Bond — Interest.</p> <p>On recovery on a mint superintendent's bond for a loss of public moneys which he was required to keep safely and turn over when required he should be charged with interest thereon from the date of their receipt until repayment, as provided by Rev. St. § 3024, in relation to all judgments obtained in suits to recover public moneys from persons accountable therefor, and who neglect or refuse to pay into the treasury the sum or balance due.</p>

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

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

<p>1. Administrators — Recovery for Intestate’s Death — Statute Authorizing — Construction—New Right of Action.</p> <p>Pub. St. N. H. 1901, c. 191, §§1 8-12, authorizing an administrator to recover for injuries resulting in the death of his intestate, do not create a new right of action in the administrator, but keep alive a former right in his intestate.</p> <p>2. Same — Survival of Cause of Action.</p> <p>Though a cause of action for the death of an intestate, which survives to his administrator under the New Hampshire statute (Pub. St. 1901, c. 191, §§ 8-12), is transitory, the survival is wholly where the right is, and local, and, the right to sue arising wholly in that state where the accident causing death occurred, it is not carried by the statute to a Vermont administrator of the decedent, endeavoring to sue defendant in the latter state.</p>

<p>Insolvent National Bank — Stockholder’s Liability — Determination on Agreed Statement.</p> <p>Where, on an issue as to whether defendant was liable as a stockholder of an insolvent national bank, it appears from an agreed statement as to what the bank books and reports show that, at the time the four shares in question purported to have been transferred to him by the president, the latter’s stock was all pledged, it must be held that defend-,, ant acquired no stock, and never in reality became a legal shareholder, and hence is not subject to a shareholder’s liabilities. 1</p>

<p>1. Insurance-Failure to Promptly Pay Loss — Constitutional Law — Due Process of Law — Equal Protection.</p> <p>Roa-. St. Tex. 1895, art. 3071, imposing on a “life or health insurance company” an additional liability for its failnre to pay a loss within the time specified, consisting of 12 per cent, 'damages on its amount, and attorney’s fees for its collection, is not repugnant to the provision of the federal constitution against taking property Avithout due process of law, and guarantying all persons the equal protection of the laAV.</p> <p>2. Same — Application of Statute to Accident Companies.</p> <p>Such article has no application to accident insurance companies.</p> <p>3. Same — Action on Accident Policy — Evidence.</p> <p>Where, in an action on an accident policy for injuries resulting in the death of the insured, defendant introduced the deposition of witness to a conversation with deceased, 13 days after the accident, intended to show how it occurred, it was competent for plaintiff to prove by persons present that it a vas entirely different, and to sIioav what in fact were the statements of deceased in such conversation in relation to the accident, whether they were a part of the res gestee or not, and no predicate was needed for such evidence after proof of the conversation by defendant.</p> <p>4. Review — Peremptory Instruction for Defendant — Refusal.</p> <p>Where there was evidence, though contradicted, strongly tending to support the fact on which plaintiff’s case depended, error cannot be predicated on the refusal of a peremptory instruction for defendant.</p>

This is a suit brought to recover from the principal and sureties on a certain bond, which is in the words and figures following, to wit: “The State of Texas, County of Galveston. Know all men by these presents', that we, the undersigned, George Hayes, as principal, and other subscribers hereto, Nicholaus Bohn and H. C. Kerst and George Schwoebel, as sureties, acknowledge ourselves bound to pay unto the St. Louis Brewing Association.

This is an action on a life insurance policy. It was brought by Thomas O. Jeffords, a citizen of Georgia, against the Fidelity Mutual Bife Association, a corporation under the laws of Pennsylvania. The action was brought in the city court of Savannah, Ga., and was removed into the court below on the application of the association.

On June 25, 1895, and on August 5, 1895, the plaintiff in error instituted three suits on the official bonds of Charles M. Norton, as former postmaster at Calvert, Tex., which suits were afterwards consolidated by order of court.

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

<p>Contract*for Decorating and Furnishing Room — Recovery for Partial Performance.</p> <p>Where a contractor agreed to decorate the walls, ceiling, and woodwork of a room, and equip it with furniture, at the agreed price of $5,200, defects in the woodwork which afterwards develop, and which are shown to be completely remediable at a cost not to exceed $500, should not preclude a recovery of the contract price, less a, deduction of that amount, as the defects do not reach the entire consideration.; substantial performance of the contract in all other particulars being shown.</p>

<p>R »NKRUPTOY — Liens—Chattel Mortgages.</p> <p>Under Bankr. Act 1898, § 67a, a mortgage of personal property executed in Rhode Island, and not recorded within five days, as required by Pub. Laws 1899, c. 614, to be effective as against creditors, cannot be allowed as a lien against the estate of the mortgagor in bankruptcy.</p>

<p>Petition for Eevision of Proceedings of tbe District Court of tbe United States for the Western Division of the Western District of Missouri.</p>

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

It is sought by the writ of error in this case to review the judgment of the circuit court (102 Fed. 125) in an action instituted by the United States against George F. Chevallier, doing business under the firm flame of F. Chevallier & Co., to recover special revenue tax as both wholesale and retail liquor dealer, which business it was alleged was carried on in the city of Portland, in Oregon, in violation of subdivision 4 of section 3244 of the Revised Statutes.

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

<p>.Unfair Competition — Preliminary Injunction — Review of Order Dentins.</p> <p>To authorize the granting of a preliminary injunction against unfair competition by imitation of packages, the right should be clear; and where it was not shown in support of the motion that any purchaser had ever in fact been deceived, and the question whether the similarity complained of was such as was likely to deceive ordinary purchasers could not be determined with certainty on the evidence addnced, the discretion of the trial court, exercised in denying the motion, will not be interfered with by the appellate court.1</p>

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

<p>In Equity. Motion for preliminary injunction against the use of a registered trade-mark.</p>

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

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

In Equity. Suit for infringement of patent. On final hearing. This is an equity suit in the usual form, seeking an injunction and accounting for an infringement of letters patent, No. 600,782, for improvements in weeding machines, granted to the complainants March 15, 1898.

<p>Patents— Infringement — Action for Damages — Co-Comvlainants—Settlement by One — Effect.</p> <p>A co-complainant and co-owner of a patent cannot defeat the other’s right to recover in a suit for infringement by its execution of a sole license and. release pendente lite to the defendant.</p>

- Appeals from the Circuit Court of the United States for the Southern District of New York. These two bills in equity were brought in the circuit court for the Southern district of New York to restrain the respective defendants I .from the alleged infringement of letters patent No. 595,728, dated December 21, 1897, to Friedrich W. Panse, assignor to the complainant, for an improvement in plaiting machines.

The bill in this cause, filed by Moore, the appellant, charged the defendant, Eggers, with the infringement of the first claim of letters patent No. 524,502, issued to the appellant, August 14, 1894, for the invention of an improvement in “hoisting and conveying apparatus.” 'The defendant denied infringement, and upon that issue the case was heard and determined in the circuit court; the validity of the appellant’s patent not being disputed.

This is a suit in equity upon a bill filed by the appellant, the Brown Hoisting & Conveying Machine Company, complaining of the infringement by the King Bridge Company, the appellee, of rights secured by letters patent No. 300,680, issued by the United States June 17, 1884, to Alexander E. Brown, the assignor of complainant, for improvements in hoisting and convoying machines. The bill is in the usual form.

<p>1. Patents — Infringement.</p> <p>Wherever patentability of a device turns on the application to sornt) particular purpose of an element used generally throughout the arts, although the patent issues for the device, and not for the process, product, or result, and if, also, the invention is of a. limited or low order, the patent must be restricted, so far as an alleged infringement is concerned, to the express purpose pointed out by the inventor. Electric Co. v. La Rue, 11 Sup. Ct. 670, 339 U. S. 603, 35 L. Ed. 294, U. S. v. Berdan FireArms Mfg. Co., 15 Sup. Ct. 420, 156 U. S. 552. 39 L. Ed. 530, and Watson v. Stevons, 2 O. C. A. 500, 51 Fed. 757, applied.</p> <p>2. Same — Vamdity and Infbingmment — Pegging Machines.</p> <p>The Davey patent, No. 555,434. for an improvement in pegging machines, the essential feature of which is a reduction in size of the horn tip used in such machines to support the work during the pegging operation, so as to enable it to enter far enough into shoes having pointed or small toes to do effective work therein, while describing a machine which consists of a combination of well-known elements, discloses patentable invention, in that it accomplished successfully what prior inventions had failed to accomplish; but, so construed, it is not infringed by a machine which contains substantially the same elements, arranged to accomplish the cutting of the pegs, as well as driving them, and without regard to reduction in size of the horn tip.</p>

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

<p>1. Marine Insurance — Construction of Policies — American Clause.</p> <p>A shipper of wool by rail and water contracted with the steamship company to cover the shipment by marine insurance for an additional rate of freight stated in the bill of lading, which was in accordance with the company’s custom. It carried several policies issued about six months before, covering such cargo as it was required by contract to insure, and also its own risk as a carrier. Such policies were all applicable to the cargo in which the wool was shipped. The consignees of the wool, having paid a draft against the shipment attached to the bill of lading, and not knowing whether the goods were insured, reported them for insurance under an open policy carried by them for several years, under which they had covered “wool * * * not previously insured.” This was before the goods had actually been received upon the ship, but while they were in course of shipment by rail. All-the policies contained the American clause against double insurance, providing that “if the said assured shall have made any other assurance * * * prior in day of date to- this policy, then the said assurers shall be answerable only for so much as the amount of such prior assurance shall"be deficient,” etc. Held,' that such clause had no application as between the two sets of policies to affect the validity of either, not being applicable by its terms to insurance under an open policy, and neither the assured, the interests insured, nor the risks insured against being the same in the two cases.</p> <p>2. Same — Prior Insurance.</p> <p>The policy of the consignees having been expressly limited by its terms to “wool, their own, or consigned to them, not previously insured,” did not attach, the wool being already insured, not only by the contract of the steamship company, under the bill of lading rate, to carry insurance, but also by its policies which at once became pro tanto applicable thereto, although the risk had not yet actually attached; it further appearing that it was the intention of the parties that the policy should take effect only in case there had been no insurance by the consignor.</p> <p>3. Same — Contract by Carrier to Insure.</p> <p>It was stipulated that the consignors received the steamship company’s written assurance that the shipment of wool under the insured rate would carry- marine insurance, and that it was to “cover the shipment” ■with marine insurance; and it further Appeared that the company, in accordance with its custom, insured in its own name the goods of all shippers on the vessel entitled to be covered by insurance in a lump sum, as well as covering by the same policies its own liability as carrier; the loss' being made payable to its agents or their order. Also that, there having' been a loss of a portion of the cargo, it collected by its agents the suranee payable to other shippers, and distributed it, omitting payment to the consignors of the wool only because the insurers denied liability because of the policy taken by the consignees. Held, that it was a rea--' sonable inference from such facts that the contract with the consignors contemplated that the company should insure in its own name, and, in case of loss, collect and pay over the insurance; and that, having failed to do so, the consignors could maintain an action against it for the amount.</p>

<p>Personal In juries — Written Release — Fraud—Burden of Proof.</p> <p>A libelant’s claim for personal Injuries against a schooner was settled by the agent of a casualty company, which had insured the vessel against liability for such injuries, the libelant signing a written release, and accepting a specified sum therefor. He averred that he was tricked into signing it by the way the paper was read to him, though admitting that he was able 'to read the same. Held that, to be relieved from the effect of his carelessness in not insisting on the right to read it himself, he must clearly show that he was defrauded; and there being nothing to corroborate his own testimony, which was positively contradicted by the company’s agent, the libel should be dismissed.</p>

<p>Shipping — Proceedings for Limitation of Liability — When Maintainable.</p> <p>A proceeding by tbe owner of a tug may be maintained, under Bev. St. U. S. § 4285, for a limitation of liability growing out of tbe loss of a tow, wber,e tbe petition shows that separate actions have been instituted against tbe tug, tbe charterer, and the petitioner in personam by tbe owner of tbe tow on account of such 'loss, and that other claims are likely to be presented by other parties affected.</p>

Libel in remr" against the steamship Santa Ana and her cargo by part of the officers and crew of the steamship Centennial to recover salvage. Hearing. • on -the merits. Decree for libelants.

<p>1. Shipptns — Seaman’s Contract — Execution—Fraud—Evidence.</p> <p>Shipping articles signed before a consul general described the voyage as “from the port of San Francisco to that of Mazatlan via Todos Santos of the Mexican republic.” Libelants, who signed the articles, and were discharged on the discharge of the ship at Mazatlan, contended that the agreement included the return voyage, and they, together with two other seamen on the same ship, testified that the articles were misread by the consul’s secretary, before being signed, as including the return voyage. The master of the ship, the consul general, and his secretary testified that the contract was read by the secretary precisely as written. Held, that the evidence was insufficient to show fraud in the execution of the articles, and hence libelants were not entitled to recover for the refusal of the master to reship libelants for the return voyage on their refusal to sign new articles. v</p> <p>2. Costs.</p> <p>A tender, unless kept good by a deposit in court, will not defeat a recovery for costs.</p>

This cause comes here upon appeals from a decree of the district court, Southern district of New York, holding the steam tug Transfer No. 9 solely in fault for a collision between a car float lasbed to her port side and the schooner Viking in tow of the William J. Sewell. The facts appear in the opinion.

<p>1. Collision in Fog- — Mutual Fault.</p> <p>A steamboat and a ferryboat collided in a harbof in a fog so dense that neither vessel could see the other at a greater distance than 20 or 25 feet. Both vessels were moving at a very moderate speed, and fog signals were blown. When, the signals appeared to be coming nearer, each stopped her engine, but, because of the density of the fog and the close proximity of the vessels before they saw each other, the collision followed. Held, that both vessels were in fault in not reversing their engines, so that each vessel should have been stationary.</p> <p>2. Same — Damages.</p> <p>In case of mutual fault, causing collision, the practice is-to equally divide the damage.</p>

<p>COLLISION — Tow AND GROUNDED BlilCi — MUTUAL FAULT OF BrTG AND TuG.</p> <p>A brig which had gone ashore in the Narrows was suddenly floated by the action of the wind, her sails having been trimmed with that object, and, going astern with the rising tide without any means of control, came in collision with a scow which was passing in tow of a tug, about 50 feet distant. The captain of the brig was the only person on deck at the time, no precaution had been taken to control her when she should come off, and no signal of danger was given to the approaching tug, nor was any attempt made to control her until too late to avert the collision. On tlie other hand, a proper lookout on the tug could have seen the brig, and understood her situation, and the tug could easily have passed at a safe distance. Heir), that both vessels were in fault for the collision, and liable for the injury to the scow.</p>

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

The first of the above-entitled causes comes here on appeal from a decree of the district court, Eastern district of New York, holding the George L. Garlick solely responsible for a collision between the ice barge Stuyvesant, in tow of the Garlick, and the schooner Uriah F. Washburn,'Owned by the libelants. 88 Fed. 553. The sedond cause is here on appeal by petitioners from a decree limiting liability to the sum of $3,000.

On January 9, 1896, Alice H. Rigney, the appellee, by her curator, Charles Lyon, exhibited her bill of complaint in the circuit court of the United States for the Western division of the Western district of Missouri against Hamilton De Graw and George Stout, the appellants, which contained the following allegations, in substance: That on October 23, 1872, the said Alice H. Rigney was the owner of a tract of land in Carroll county, Mo., known as the “northeast quarter of…

. This suit was brought by the trustee in a deed of trust executed by the Eau Claire Waterworks Company to secure a series of bonds, and by holders of the bonds, for the purpose of obtaining a decree of foreclosure.

<p>Removal of Causes — Jurisdiction of Ff,deral Court — Nonresidence of Parties — Motion to Remand.</p> <p>A defendant, by appearing in the courts of a stale in which neither plain!iff nor defendant resided, and filing a bond and petition to remove the case to the federal court, thereby waived his right to be sued in the district of his residence guarantied by Judiciary Act (25 St. 433) § 1, and thereby submitted himself to the jurisdiction of the state court; and hence plaintiff, after removal, is not entitled to have the case remanded on the ground that the federal circuit court had no jurisdiction, in that neither plaintiff nor defendant was a resident of the state in which the suit was brought.</p>

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

<p>1. Removal of Cause — JFbdbbal Coubt — Fraudulent Joinder of Parties— Remand.</p> <p>Ohio Rev. St. § 3305, declares that, where an Ohio railroad corporation leases its road to a corporation of another state, both corporations shall he jointly liable on all rights of action accruing for any negligence or default growing out of the operation of such road, and that service on both may he made on any officer or agent of either company. Held, that where an Ohio railroad company was joined in a complaint for injuries with a foreign railroad company, under a false allegation that the Ohio company had leased its road to the foreign company, which was alone served with process, and, on a motion to remand the cause to the state court after removal to the federal court by the foreign railroad company, plaintiff’s counsel in open court admitted that the allegation as to the relation between the two companies was false, and it appeared that the joinder of the two was to prevent the removal of the cause to the federal court, the motion to remand will be denied.</p> <p>2. 8amf. — Proceedings on Motion to Remand — Scope.</p> <p>.Where a. foreign and resident defendant are joined in an action in the state court, and the cause is removed to the federal court by the nonresident defendant before a motion to quash the service as to the resident defendant is heard, the fact that the federal court has no authority to pass on such motion, in determining a motion to remand the cause to the state court, does not preclude a consideration of the question whether such defendant was in court or not at the time limited for the filing of the petition for removal.</p>

In Equity. Suits by the People’s National Bank of Lynchburg, the First National Bank of Lynchburg, the Lynchburg National Bank, and the National Exchange Bank of Lynchburg in behalf of their shareholders, against Merton Marye, as auditor of public accounts of the state of Virginia, to enjoin the collection of taxes levied on their shares of stock. On demurrer to bills.

<p>Equity Jurisdiction — Enforcement of Trust — Assignee of Solvent Corporation.</p> <p>A suit in equity cannot be maintained by one claiming to be a contract creditor of a solvent corporation against an assignee to whom tbe corporation bas conveyed its property in trust to be converted into money and its debts paid therefrom. In such case a court of equity bas no jurisdiction to administer tbe fund in tbe bands of tbe trustee for tbe benefit of creditors, tbe trustee being merely an agent for tbe corporation, wbieb owns tbe property or fund; nor has tbe creditor, who bas no lien on such property or fund, any right of action against tbe trustee.</p>

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

<p>In Equity. Hearing on bill and answer.</p>

Appeals from the Circuit Court of the United States for the District of Minnesota. These appeals challenge decrees to the effect that the appellants hold their title to the N. W. % of the S. E. % of section 30, in township 03 N'., of range 11 W. of the fourth P. M., in the state of Minnesota, in trust for the appellees.

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

The suit in the Circuit Court was by defendant in error against plaintiffs in error to recover for the use and occupation of a certain dwelling house in the City of Chicago, from the first of March 1896, to the thirtieth of April 1898. The count was framed upon section 15, c. 68, of the Illinois Revised Statutes relating to liability for family expenses.

<p>1. Federal Courts — Counterclaims—Distinction Between Law and Equity.</p> <p>Though a state statute provide that there shall be no distinction in pleading and practice between actions at law and suits in equity, and be but one form of action for enforcement of private rights, a federal court will not take cognizance, on its law side, of a counterclaim which seeks a judgment in favor of defendant against plaintiff, and is therefore of equitable cognizance.</p> <p>2. Replevin — Proof under General Denial.</p> <p>Defendant in replevin may, under the general denial, prove that the articles were constructed and sold to it under a contract by which plaintiff agreed to deliver them by a certain time, and to pay defendant $100 a day for each day’s delay in delivery, and that the amount due for the delay, with the amount paid plaintiff by defendant, equaled the amount of the purchase price.</p>

, In Error to the Circuit Court of the United States for the Northern District of Illinois. This is an action of debt on a bond conditioned for the performance of the covenants of a lease, which bond was executed by Carlton H. Gary and .Braman H. Loveless as principals, and Noah E. Gary and Braman Loveless as sureties. Noah E. Gary having departed this life, the suit upon the bond is against the two principals, the surety.

<p>Intervening- Petition of Henry L. Harms against the Receiver to Recover for Injury to Stock in Shipment. On demurrer to answer.</p>

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

The defendant in error (hereinafter called the “plaintiff”), as assignee of the claim of Francis Broadnax against the plaintiff in error, the New York Insulated Wire Company (hereinafter called the “defendant”), for damages for the breach of a contract of employment, brought an action at law against it in the circuit court for the Southern district o# New York, and recovered a verdict for $2,818.99, upon which verdict judgment was entered.

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

<p>1. Personal Injuries — Pleading.</p> <p>Injury to eyesight' may be proved under a complaint alleging that plaintiff was hurled forward with such force as to bruise her knee, wrench her arm, and “otherwise seriously and grievously injure her.”</p> <p>2. Same — Evidence.</p> <p>The question of whether plaintiff’s impairment of eyesight was attributable to the accident, where she received blows on other parts of the body, and a nervous shock, should not be left to the jury, there being no testimony or proof that such blows might be expected to produce such impairment.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This is a writ of error to review a judgment entered upon a verdict for $5,000 in favor of the defendant in error, who was plaintiff below. The libel appeared April 6, 1895, in the Yew York Tribune, a newspaper published by the plaintiff in error, who was defendant below. It reads as follows:</p> <p>“Anson Phelps Stokes Robbed.</p> <p>“His Former Head Gardener at Lenox Got Away with $6,000 or $7,000.</p> <p>‘‘Pittsfield, Mass.. April 5th. A sensation was caused here and in Lenox today by the disclosure that Frederick S. Follwell, until recently head gardener for Anson Phelps Stokes at the latter’s magnificent place in Lenox, was a defaulter to the amount of $6,000 or $7,000. Several months ago Mrs. Stokes, who is an enthusiastic botanist, discovered that Follwell’s knowledge of the subject was superficial, and had him discharged. He was engaged to go to ■ Pierre Lorillard’s place at Newport. Soon after his departure, Mr. Stokes began to receive bills for which he had already given checks. An investigation showed that Follwell had incurred many bills in his employer’s name, and had appropriated cheeks given to him with which to pay them. When the shortage was discovered, word was sent to Newport with the idea of having Follwell come here and explain, but he was not there, and had not been since he left Lenox, and no trace of him has been found. His wife and child are in this city.”</p>

On March 25, 1898, .T. C. King and W. N. Fowler, composing the firm oí King & Fowler, executed and delivered to Evans-Snider-Buel Company, the defendant in error, a chatted mortgage conveying to H. M. Bollard, trustee, 18,100 head of sheep described in the mortgage, including the wool and fleece thereof when shorn, provided the same may he shorn by the mortgagors. and the wool marketed, with the consent of Evans-Suider-Buel Company in writing; the proceeds of the wool to be…

<p>Eire Insurance — Action for Loss — Mancb’actoking Plant — Policies—Construction — Additional Buildings — Question for Court.</p> <p>Policies were issued by defendant on plaintiff’s manufacturing plant, describing it by a plan referred to confining it to buildings designated thereon by specified numbers, and to the machinery, tools, and other articles mentioned as “contained in or attached” to these buildings. Privileges allowed “additions, alterations, and repairs,” which the policy was to cover. Held, that the “additions, alterations, and repairs” referred to property described in the policies, which clearly excluded _ a separate building unconnected with the others specified therein and in course of erection at the time they were issued; and hence, in an action for its loss, the court properly refused to submit to the jury tlie question whether the policies were intended to coyer additional buildings erected from time to time.</p>

This cause comes here upon a writ of error to review a judgment dismissing the complaint upon the merits at the close of plaintiff’s case. The action was brought to recover damages for injuries received while in the employ of defendant as a brakeman upon one of its trains at or near Union City, Conn.

<p>At Law. On motion to strike out paragraphs 7 and 8 of the complaint.</p> <p>Paragraphs 7 and 8 of the complaint are as follows:</p> <p>“(7) That because of the negligence of defendant in failing to transmit and deliver said money as it promised and agreed to do, the plaintiff M. B. Stan-sell and her family of three (8) children were compelled to vacate their said home on the twenty-first (21st) day of June, 1898, for the nonpayment of rent.</p> <p>“(8) That the plaintiff M. B. Stansell was greatly excited and disturbed because of her failure to receive said money as expected, and suffered great mental anguish, and her feelings were greatly injured, and she was greatly humiliated, and suffered in reputation because of her said eviction, said plaintiff possessing a large circle of acquaintances in said city of Memphis, Tennessee, at that time; all to her damage in the sum of two thousand five hundred dollars ($2,500).”</p>

The main facts are as follows, substantially taken from appellants’ brief: Tlie Steininger Mercantile Company was a corporation engaged in the business of merchandising in the city of Bainbridge, Decatur county, Georgia, was of good financial standing, and had no mortgages or other liens whatever against them, and had the reputation of being solvent, and had recently enlarged its storehouse and increased its stock and insurance preparatory to doing a larger business.

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

<p>1, Bankruptcy — Insolvent Lunatic — Guardian Ad Litem — Appointment-Publication of Process.</p> <p>In bankruptcy proceedings by involuntary petition against the estate of an absent lunatic, an application for the appointment of a guardian ad litem will not be delayed because of the omission to publish process, since Bankr. Act 1898, § 18a, requires publication only “in case personal service cannot be made,” and the appointment would be necessary notwithstanding.</p> <p>2. Same — Questions Determinable on Application for Appointment.</p> <p>It would be premature to determine, before the appointment of a guardian ad litem in proceedings in bankruptcy against a lunatic, whether he could be adjudicated bankrupt for acts committed either before or after the lunacy began.</p> <p>8. Same.</p> <p>The appointment of a guardian ad litem in the federal practice is regulated by equity , rule 87, where full discretion is given the court for protection of the defendant under disability, and by general orders in bankruptcy No. 37 (32 G. C. A. xxxvi., 89 Fed. xiv.) this equity practice is prescribed for the bankruptcy courts. Held, that this authorized the appointment of a guardian ad litem to defend an involuntary petition of bankruptcy against a lunatic, when he had no regular guardian or committee, and that, when he has such guardian or committee, he must be brought in by process as well as the lunatic, and that the committee or guardian then be appointed guardian ad litem to defend in his behalf.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from an order of the district court, Southern district of New York, allowing two claims against the bankrupt, one of Peter Lorillard for $285,725.91, and the other of Henry I. Barbey for $299,603.51. Both include interest. Objection to such allowance was made by several of the other creditors, some of whom have appealed.</p>

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

Appeal by the United States from a decision of the circuit court reversing the decision of the board of general appraisers as to the classification for duty of certain imported merchandise.

This is an action by plaintiffs below, citizens of Cuba, against the defendants, - citizens of Chicago, doing business at Chicago as manufacturers and dealers in lard under the firm name of Nelson Morris & Co., to recover the sum of $3,635.87 damages, being the amount of custom duties which the plaintiffs below allege that they had to pay over and above what, but for the alleged negligence of the defendants, they would have been required to pay, at Havana, upon 268 tierces…

<p>i. Customs Duties — Board of General Appraisers — Jurisdiction—Notice of Dissatisfaction — Necessity.</p> <p>The customs administrative act of 1890 provides (section 13) that, if the collector shall deem the appraisement of any imported merchandise too low, he may ord.er a reappraisement by one of the general appraisers, and that if the importer, owner, etc., shall be dissatisfied, and give notice thereof, or if the collector shall deem the reappraisement too low, he “shall transmit the invoice, and all the papers appertaining thereto,” to the board of three general appraisers, to examine and finally decide the case. Held, that formal notice to the board of. dissatisfaction by either the importer or collector was not needed to give it jurisdiction, transmission to it of the designated papers being sufficient, and hence the fact that a collector was satisfied, but ordered a reappraisement pursuant to instructions from the treasury department, would not nullify its action.</p> <p>8. Same — Appraisement—Conclusiveness—Impeachment.</p> <p>While, as a general rule, the valuation of appraisers is conclusive on all parties, the appraisement may be impeached if the appraiser or collector proceeded on a wrong principle, contrary to law, or transcended the power conferred by statute, or ^did not comply therewith.</p> <p>3. Same — Duties of Appraisers — Violation.</p> <p>The customs administrative act of 1890 provides (section 10) that the appraisers shall ascertain the actual market value and wholesale price of the merchandise at the time of exportation, “and the number of yards, parcels or quantities, and the actual market value or wholesale price of every one of them, as the case may require.” Pursuant thereto the board of general appraisers made a report as to importations of Swiss laces, embroideries, and handkerchiefs, adding percentages to value, as appears by the following example: “On items invoiced at 18 centimes, stitch rate, add 36%; on balance of goods, add 10%.” They did not, however, carry out on the invoice the value per aune (the Swiss unit) in francs and centimes, though this could easily be computed by the customhouse officers. Held, that there was no violation of the requirements of the statute.</p> <p>4, ' Same — Treasury Regulations — Construction.</p> <p>Paragraph 845 of the treasury regulations provides that appraisers shall make advances on invoices on the unit value declared on entry, in the currency in which the invoice is made out, in a specific sum per pound, yard, or other unit of Value,, and not by percentage, and in the weight, gauge, .or measure expressed in the invoice, but that no average valuation shall be made, and that the additions shall be made by writing on the invoice, opposite each item advanced, the words, “add to make market value,” stating in numerals the amount necessary to make the price per unit. Held directory, and not mandatory, in the sense that neglect to conform thereto would create an illegal appraisal.</p> <p>6. Same — Failure to Personally Examine Goods — Evidence—Invalidity oe Appraise \ient.</p> <p>Where importers distinctly testified that the hoard of general appraisers made no personal examination or investigation of invoices in question, as required by Kev. St. § 2901, and no opposing evidence was presented, the facts must be regarded as proved, notwithstanding the presumption in favor of the correctness of official action, and the appraisement must he held invalid.</p>

<p>In Error to the District Court of the United States for (he Northern Division of the Northern District of Illinois.</p> <p>The plaintiff in error was convicted of a fraudulent use of the mails, in violation of section 5480 of the Revised Statutes, as amended by Act March 2, 1889 (1 Supp. Rev. St. p. 694), which, in so far as now pertinent, reads as follows: “If any person having devised or intending- to devise any scheme or artifice to defraud * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the post-office establishment of tiie United States, or by inciting such other person or any person to open communication with the person so devising or intending shall, in and for executing such scheme or artifice or attempting so to do, place or cause to he placed any letter, packet, writing, circular, pamphlet or advertisement in any post-offiee, branch post-office, or street or hotel letter-box of the United States, to he sent or delivered by the said post-office establishment, or shall take or receive any such therefrom, such person so misusing the post-office establishment shall, upon conviction, be punishable by a fine of not more than $500 and by imprisonment for not more than eighteen months, or by both such punishments at the discretion of the court.”</p> <p>The body of the indictment on which the conviction was had reads as follows:</p> <p>“The grand jurors for the United States of America, inquiring for the Northern division of the Northern district of Illinois, upon their oath present that Patrick Larkin, late of the city of Chicago, in the said division and district, before and at the several times of committing of the several offenses hereinafter mentioned, at Chicago aforesaid, in the division, and district aforesaid, had devis.ed a scheme and artifice to defraud divers other persons then resident within the said United States, by inducing those persons, respectively, to send to him divers valuable articles of merchandise on credit, under the pretense on his part that he would buy-the same and give good security for the payment of his indebtedness’ therefor, but merely intending thereby, and by giving fictitious security, to get possession of such articles as should be so sent to' him, the said Patrick Larkin, and fraudulently to convert the same to his own use, and sell and dispose of the same, and intending not to pay for the same, and to defraud thereof the several persons who should so send the same; which said scheme and artifice was a scheme and artifice -which he, the said Patrick Larkin, when so devising the same as aforesaid and committing the offense hereinafter mentioned, intended to effect by opening correspondence and communication, by means of the post-office establishment of the said United States, with the several persons so intended to be defrauded, and by inciting those persons to open communication with him, the said Patrick Larkin, by means of the said post-office establishment. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Patrick Larkin, on the eighth day of June, in the year eighteen hundred and ninety-eight, at Chicago aforesaid, in the division and district aforesaid, so having devised the said scheme and artifice in and for executing the same, and attempting so to do, unlawfully did place in the post office of the said United States there, to be sent and delivered by the said post-office establishment, a certain writing, to wit, a writing of the tenor following, that is to say: ‘Chicago, June 8th ’98. I Allen Larkin state that I</p> <p>am the owner in fee simple of the following described property situated in the City of Chicago Co of Cook and State of Illinois. Three two story and basement modern brick residence buildings known as numbers 530, 534 and 536 Cornelia Ave, Chicago, worth eighteen thousand dollars,’ — signed ‘Allen Larkin,’ directed to certain persons then doing business at South Bend, in the state of Indiana, under the name of Winkler Brothers, as manufacturers of and dealers in sprinkling carts; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided.</p> <p>“(2) And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Patrick Larkin, on the twenty-third day of June, in the year eighteen hundred and ninety-eight, at Chicago aforesaid, in the division and district aforesaid, so having devised the scheme and artifice to defraud described in the first count of this indictment, in and for executing the same and attempting so to do, unlawfully did place in the post office of the said United States, at Chicago aforesaid, to be sent and delivered by the ,said post-office establishment, a certain other writing, to wit, a writing on a postal card, of the tenor which here follows; that is to say: ‘532 Cornelia Ave Lake View Chicago' June 23 Sirs Please send me your catalogue & prices of wind mills & oblige, Yours respt. P. Larkin,’ — which said postal card then bore on the address side thereof the following direction and address, to wit: ‘Phelps & Bigelow Wind Mill Co Kalamazoo Michigan,’ against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided.</p> <p>“(3) And the grand jurors aforesaid, upon their oath aforesaid, do further present, that the said Patrick Larkin, on the sixth day of August, in the year eighteen hundred and ninety-eight, at Chicago aforesaid, in the division and district aforesaid, so having devised the scheme and artifice to defraud in the first count of this indictment described in and for executing the same, and in attempting so to do, unlawfully did place in the post office of the said United States at Chicago aforesaid, to be sent and delivered by the said post-office establishment, a certain other writing, to wit, a writing upon a postal card, of the tenor following; that is to say: ‘532 Cornelia Avenue Lake View Chicago Aug (5 18i)8 Sir Please send me your colour card and prices of your mixed paints Yours respt P. Larkin.’ — which last mentioned postal card then boro on the address side thereof the following direction and address, to wit: ‘C. H. Parker. Esq. Paint Mfr Valparaiso Porter Co Indiana;’ against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided.”</p> <p>The sufficiency of the indictment, and of each count, was challenged by demurrer on several grounds; that chiefly relied on being that the names of the persons intended to be defrauded are not set out, and no sufficient reason given for the omission.</p>

<p>Witnesses — Privileged Communications — Attorney and Client.</p> <p>Where an accused admitted to bail could not be found, and on investigation by the grand jury it appeared that his counsel was not retained by the accused, but by some person acting for accused, or in his interest, tiie counsel might be compelled to disclose the name and residence or usual place of abode of such person, but not the interest such person had in the matter.</p>

<p>Unfair Competition — Injunction.</p> <p>Unfair competition, •which entitles complainant to an injunction, is Shown by proof that defendant sold to a representative of complainant bitters which it represented to he those of complainant, hut which were not, but were an inferior article, and that defendant also furnished to the purchaser at his request an empty bottle of complainant having its labels thereon.1</p>

<p>Unfair Dealings in Trade — Injunction.</p> <p>Proof that on two occasions, at the instigation of complainant, defendant’s employé sold to complainant’s agents, in bulk, bitiers resembling those sold by complainant, and advised them to put the same in empty bottles which liad been used for complainant’s bitters, and to sell the same as complainant’s bitters, does not prove a course of wrongdoing on the part of defendant which should be enjoined, as against proof to the contrary and evidence that defendant repudiated the act of his employe.1</p>

<p>1. Copyright — Validity—Failure to Iksert Correct Notice.</p> <p>While the parts of a book were being published serially in a magazine the book as a whole was copyrighted by the author and published. The remaining,.parts were thereafter published in the succeeding numbers of the magazine, which were copyrighted by the publishers, and notice of such copyright in their name was printed therein. Bald, that the parts which had appeared in the magazine prior to any copyright by such publication became public property, under the copyright law of 1831 (4 Stat. 436, §§ 1, 4), and that as to the-remaining parts the author’s copy,'right.wa^ vitiated by .the copyright notices printed in the 'magazine: giving the name of the publishers, instead of the author, under, section 5 of the act, which requires a notice of copyright to he inserted, in “the sev-. eral copies of each and every edition” published, stating,' among other things, the name of the person taking out such copyright.</p> <p>2. Same.</p> <p>A copyright of a book is invalid where the notice printed therein gives' the name of the author as having taken such copyright, while the serial-numbers of a magazine in which the contents of the book were first published were copyrighted by the publishers, and the notices printed therein showed such copyright in their name.</p>

<p>Patents — Construction and Validity — Electric Motor Regulators.</p> <p>Tlie Knight patent, No. 428,169, for an electro-motor regulator, which describes a device for use on that class of electric motors in which the reverser and Hie regulator are operated by separate levers, and consists of an interlocking mechanism connecting the two lovers which prevents the movement of either except when the other is in a predetermined position, is not for a pioneer invention, but for an improvement only, in that class of motors, and must be limited in construction to substantially the device shown. The first four claims, which by their claims cover broadly any interlocking device for co-ordinating the two levers, are void in view of the prior art, which discloses such mechanism used for interlocking of the levers for operating railroad switches and signals, and the invention of the patentee is measured by the novelty of the particular device by which he applied the same principle to the levers of an electric motor.</p>

<p>1. Patents — Invention.</p> <p>The Osgood patent, No. 357,851, for an improvement in a cash-car apparatus, — the device described consisting of a car rigidly suspended by two wheel hangers from a horizontal wire, along which it is moved by a push of the hand, — discloses a patentable invention, which was not anticipated, and is valid.</p> <p>¡2. Same — Infringement.</p> <p>Claim No. 1 of the Osgood patent, No. 357,851, must be limited to an apparatus in which gravity does not suffice to start and carry the car to its destination, in order to save the claim from invalidity, in view of the prior art, and also because the specification states, “it is manifest that the wire must be practically horizontal,” and a two-wheeled carrier is also an indispensable constituent of the claim, so that it is not infringed by a carrier having a single wheel, nor by a device in which the wire -¡track is inclined So that the car-runs thereon by gravity.</p>

<p>Patents — Infringement—Injunction.</p> <p>Iii a suit for the infringement of letters patent No. 008,720, for a collar turning and ironing machine, granted August 9, 1898, to William C. Shaw, where it appears that the patent is a recent one, and there is no such proof of long-continued acquiescence by the public as would raise a prima facie case in the patentee’s favor, and there is a substantial question as to infringement, which can he settled only on construction of the patent requiring a presentation of the state of the art and a history of the invention, a preliminary injunction should not be granted without proof of a prior adjudication; and the fact that in interference proceedings in the patent office eight different applicants were involved, of whom only the patentee and one other took testimony settling the question of priority between the patentee and that other, is not such an adjudication as the practice calls for.</p>

<p>Shipping — Negligence op Vessel — Breaking op Submarine Cable.</p> <p>The American barkentine Anita Berwind, loaded with coal, was anchored near Port au Prince, in the bay of Hayti, under the direction of a government pilot. Afterwards the pilot came on board to move the vessel to another anchorage. On attempting to raise the anchor, it was found to be fouled with what was supposed to be a wire rope, but was in fact libelant’s submarine telegraph cable, and in attempting to free the anchor the cable was broken. The vessel had never been in that port before, and the cable was not shown on its chart of the bay. The libel charged that the breaking was negligent and intentional. Held, that the proof failed to support such allegations, the weight of evidence showing that the vessel was attempting to support the cable, which had not been raised to the surface, by means of a chain -while the anchor could he freed, and that the cable was probably broken across the edge of one of the anchor’s palms, owing to the straining of the vessel against it while the work was in progress.</p>

<p>In Admiralty. Libel in personam to recover the value of a barge chartered to the respondents, and lost while in their possession and use.</p> <p>The libelant was the owner of Barge A, a registered scow of peculiar construction, without sails or other motive power, which was designed for carrying loaded cars, and so used for a time, then adapted for transportation of lumber, and so employed by the libelant, in one instance carrying a return cargo of coal from the Lower Lakes. The registered capacity of the barge was 403 net tons; her length was 135 feet, and beam 34 feet. The respondent was a steamboat vessel owner of large experience, and a contractor in harbor work, which included the transportation of stone in scows for such work, desiring a barge ;for the carriage of stone to Racine and Milwaukee,. he entered’ into negotiation with the libelant for Barge A, and after a personal inspection, and on represehtations of her lumber capacity, appears to have been satisfied that he could utilize the barge for that purpose. There-’ upon the charter party in question was executed, .whereby the respondent engaged to take the barge at South Chicago, where she then was, to paint her (with paint furnished by the libelants), “and use her during the charter in transporting stone from Chicago to Milwaukee and intermediate points, and return her to the owner at Chicago” at the expiration of five months. The rental was to be $1,500, and the contract provided an option of purchase at $4,500; the rental to apply as purchase money in the event of an exercise of such option. The barge was taken by the respondent accordingly, loaded at Chicago with stone, — approximately 150 cords, the definite amount not being shown, — and safely towed to Racine. This stone was all loaded on deck, as customary in the case of flat scows used in the stone trade, while this barge had an eight-foot hold, without such knees as entered into the construction of stone scows. Moreover, her sides were made of 6x8 timber, drift-bolted, extending above the deck, and making what is called a “rail” of three feet and'ten inches; and the stone was so loaded as to use this rail by way of substitute for the wall of stone usually placed upon the sides of such cargo on flat scows. When the barge arrived in Racine, no part of the stone being taken oif, she was towed up the river to receive the remnant of the cargo of another vessel; and after several cords, variously estimated, were placed along her port quarter, giving her a decided list, the tug was called to wind the barge for the purpose of receiving the remainder of the stone on her starboard side. In this maneuver the weight of the stone and the list of the barge caused a collapse, — the port side appearing to “flatten out,” as described by some of the witnesses, — so that, the barge was completely wrecked, and return to the owner became impossible.</p>

<p>1. Shipping — Damage to Cargo — Condition op Bill op Lading Requiring Notice of Claim.</p> <p>A provision of a bill of lading that “the shipowner is not to be liable * * * for any claim, notice of which is not given before the removal of the goods,” imposes a reasonable and valid condition precedent to the right to maintain a suit for damage to the goods in shipment, either against the shipowner personally or in rem; and a failure to comply with such condition is not excused by the fact that the ship had knowledge of the damage, the purpose of the requirement being to advise the owners that they are charged with liability therefor.</p> <p>3. Same — Construction and Validity.</p> <p>A provision of a bill of lading that the shipowner is not to be liable for any claim, “notice of which is not given before the removal of the goods,” properly construed, does not require such notice to be given before the goods are taken from the ship, but before their removal from the dock where they are deposited by the ship, and where, after they are released from the ship’s tackle, they may be inspected and examined, both by the consignees and the officers of the ship. So construed, Shch provision is reasonable and valid.</p> <p>3. Same — Transshipment by Through Carrier — Liability op Second Carrier.</p> <p>The general course of business in forwarding when the ship of the signer of a through bill of lading does not go all the way to the port of ultimate destination, of which fact the shipper has knowledge, or is given notice by the through bill of lading, and the manifest necessity of transshipment by the through undertaker under such contract as it can reasonably make, justifies the presumption of its authority to make such contract, and to bind the shipper thereby, although the terms of the new contract may not be in all respects the same as its own; but, in any event, the undertaking and liability of the second carrier are measured by its own contract, provided its terms are reasonable, and not in contravention of the maritime law.</p>

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

<p>L Obstructions at Dock — Injury to Vessel — Vault of Master.</p> <p>Recovery cannot be Jmd for injury to a boat by its grounding on an obstruction at a dock, on the going down of tbe tide, where tbe master, though notified that there was an obstruction, and directed to breast the boat off from the dock, for which purpose a breasting plank had been fastened to the dock, failed to do so.</p> <p>8. Same — Evidence.</p> <p>It cannot be inferred that a boat at a dock would have tipped over when, grounding at the going out of the tide, even if the master had breasted it off three feet from the dock, as directed, though the obstruction on which it struck extended more than three feet from the dock, other vessels of greater draft having customarily discharged there with* out injury.</p>

This cause comes here upon appeal from a decree of the district court, Eastern district of New York, dismissing a libel, with costs. 101 Fed. 298. The libel was filed to recover for repairs to the hull of the steamship Roanoke. The facts in the case are similar to those in The George Farwell (recently decided by this court) 43 O. O. A. 373, 103 Fed. 882.

<p>In Admiralty. Suits to establish maritime liens. On exceptions - to report of commissioner.</p>

Suit by Seamen for Wages. The shipping articles, so far as pertinent to the conclusions announced by the court, are as follows: “U. S. Shipping Commissioner for the Port of San Francisco, Cal., “Nov. 4, 1898. “It Is agreed between the master and seamen, or mariners, of the Sch.

<p>1. Admiralty — Seaman’s Wages — Lien—Minor Son of Master.</p> <p>A 16 year old son of the captain of a schooner, employed thereon, Is not entitled to a lien on the vessel for seaman’s wages.</p> <p>2. Same — Material Men — Liens—Priority—Laches.</p> <p>Where a material man entitled to a lien on a schooner for repairs permitted the vessel to depart from a port wherein he might have libeled it and perfected his lien, he is guilty of such laches as will entitle the liens of subsequent supply claimants to priority over his claim.</p>

<p>1. Collision — Tug and Moored Vessel.</p> <p>A tug boat lay for an hour and a quarter in a stream. At the end of the next pier was a canal boat, with her bow projecting into the slip. The tug thereafter backed out into the river and proceeded under acquired headway until she saw the canal boat, when she reversed her engine, but still went forward and struck the canal boat. Held, that she was distinctly liable, and should pay for the injury resulting therefrom.</p> <p>2. Same — Unseaworthiness.</p> <p>The fact that a canal boat lying at a pier was not sufficiently strong to withstand a blow from the bow of a tug boat negligently colliding with her does not show the canal boat to have been unseaworthy.</p>

The respondent in this case, now plaintiff in error, was convicted at the April term, 1900, of the district court for the Western district of Tennessee, of the offense defined by section 5508 of the Revised Statutes of the United States; that is to say, of having conspired with other persons to injure, oppress, threaten, and intimidate certain citizens of the United States in the free exercise and enjoyment of the right and privilege secured hy the constitution and laws of…

The plaintiff in error, on April 17, 1900, brought suits in the circuit court for Price county, Wis., upon money demands, — one against 1 etition, provides that, with certain exceptions, not necessary to be stated, no corporation foreign to the state of Wisconsin shall transact business or acquire, hold, or dispose of property in the state until a duly authenticated copy of its charter shall be filed with the secretary of state; imposes a penalty for failure to comply with…

<p>Jurisdiction of Federal Courts — Federal Question — Impairing Obligation of Contracts — Extension beyond Scope of Original Controversy.</p> <p>Where jurisdiction of a bill to enjoin enforcement of a city ordinance authorizing a street-railroad company to condemn for its use certain parts of the track of another company is taken by the circuit court on the ground that the claimed violation of a previous grant to the latter company involves a federal question arising under the contract clause of the constitution, it does not give it jurisdiction to decide a question arising on a supplemental bill as to the right of condemnation by the former company under its charter, pursuant to which the city pendente lite 'decided that the streets where the tracks were located were not wide enoagh foi two com^tí*^ to lay tracks side by side, as the matter involved is beyond the scope of the controversy which gave the court jurisdiction of the case originally,1</p>

<p>1. Action against Railroad Company — Service of Summons — Ticket Agent.</p> <p>If the service of summons in an action against a railroad company appears to have been made on a. regular ticket agent of defendant, it is sufficient, and he need not be employed on the line of the road to be regarded as such.</p> <p>3. Federal Courts — Jurisdiction of Removed Cause — Objection by Party Procuring Removal.</p> <p>Though the circuit court cannot acquire jurisdiction by original process issued therefrom in a controversy between citizens of different states unless defendant is a resident of the district, yet where defendant, pursuant to the statute of removal, has a cause removed from the state to the federal court on the ground of diverse citizenship of the parties without regard to the residence of defendant, the latter cannot thereafter object to jurisdiction on account of its nonresidence in the district.</p>

At Law. On demurrer to complaint. Action at law, against tlie surviving members of the late firm of Gross Bros., citizens of the state of Washington, by a citizen of a different state, alleging as a first cause of action an indebtedness of the firm to him amounting' to less than §2,000, and setting forth in his complaint other causes of action, alleged to have been assigned to him. by creditors of the firm, each of the assignors being a citizen of a state other than the…

<p>1. Equitable Relief in Federal Courts.</p> <p>The federal courts decide for themselves whether for an actual or threatened invasion of a conceded or asserted right equity may afford relief.</p> <p>2. Streets — Public Use — Loading and Unloading Freight — Interference by Trespasser — Protection in Equity.</p> <p>The appropriation, whether by custom or ordinance, of a street adjacent to a railroad freight house to the use of teams, trucks, and wagons in loading and unloading merchandise, is a legitimate public use of the street, of such importance that a mere trespasser, seeking to interfere therewith, should receive scant favor from a court of conscience.</p> <p>Seaman, District Judge, dissenting.</p>

<p>Foreign Corporations — Building and Loan Associations- — Loan in Violation of Law — Effect as to Repayment.</p> <p>A loan by a Tennessee; building and loan association, through a traveling soliciting agent, to a resident of Alabama, where all the business in connection therewith was transacted, with the single exception of the association’s assent thereto, made when the association had no place of business and authorized local agent in the state, is a violation of Const. Ala. art. 11, § -1. and Code 1896, §§ 1316, 1318, 1319, enacted pursuant thereto, prohibiting foreign corporations from doing “any business” in the state without at least one known place of business and an authorized agent therein, and hence repayment of the loan cannot bo enforced.</p>

This is a sequel to prior suits between the same parties. By two decrees of the circuit court of the United States for the Northern district of Illinois, the first rendered on January 21, 1884, and affirmed hy the supreme court (131 U. S. 371, 9 Sup. Ct. 770, 33 L. Ed. 157), and the second rendered on December 9, 1892, and affirmed hy this court under the direction of the supreme court (4(5 U. S. App. 530, 15 C. C. A. 184, 68 Fed. 19; 155 U. S. 156, 15 Sup.

<p>1. Deed — Estate Created — Defeasible Pee.</p> <p>A deed conveyed real estate for the sole use oí M. “and her heirs, and, in default of issue on the death of said M.,” then to others. Held, that under the law of Georgia, where the property was situate, such deed did not create an estate tail, nor a life estate in M. with remainder over, but a fee-simple estate in M., determinable upon the contingency of her death leaving no living issue; and that since, under the laws of the state at the time the deed was executed therein, a fee could not be limited on a fee, the conditional limitation over was void, and M. was vested with the estate in fee simple absolute.</p> <p>2. Judgments — Persons Concluded — Decree Establishing Lien for Taxes.</p> <p>The beneficial grantee in a deed which was made to a trustee during her minority brought suit to recover the property from one to whom the trustee had sold and conveyed it under an order of court. The conveyance was held void, and the plaintiff was given a decree for the property, subject, however, to a lien thereon in favor of the defendant for taxes paid. The plaintiff failed to pay the amount, and the property was sold therefor under the decree. Held, that since, under the statute (Pol. Code Ga. 1895. § 778), the taxes were a lien on the property without regard to the condition of the title, the sale was valid and conveyed a good title, not only as against the plaintiff, but, conceding her to have been a life tenant only, as against the remainder-men also, although they were not parties to the suit.</p>

This is an appeal from an order granting a preliminary injunction.

In Equity. Bill for appointment of a trustee in place of a deceased trustee, and cross bill by beneficiaries of the trust to require ,an accounting and a distribution of tbe trust fund.

This is a controversy between Morton Albaugh, receiver of the First National Bank of Emporia, Kan., on the one hand, and the Fourth-National Bank of St. Louis, Mo., and the First National Bank of New York and F. Harvey on the other, respecting the ownership of a certain fund now in the possession of said receiver.

<p>Intervention — Refusal—Granting Appeal as of Course.</p> <p>There being two kinds of intervention,' one belonging to the class of cases in which leave to intervene is entirely discretionary, and the other to that class in which the right is absolute, and it being sometimes difficult to determine to which a particular intervention belongs, the correct practice for a chancellor, after refusing leave to intervene, is to grant an appeal as a matter of course, if prayed for, as the intervener otherwise would be entirely without remedy if the refusal should be a mistake.</p>

<p>On Motion to Confirm Master’s Report and on Exceptions thereto. Frederick J. Moses, for the receiver.</p>

This is an action on 359 coupons cut from 22 township bonds issued by the township of Mission, in Shawnee county, in the state of Kansas, under an act of the legislature of that state passed on March 1, 1889, and entitled “An act to encourage the erection of mills and the manufacture of sugar and syrup out of sorghum cane, and authorizing townships and cities of the second and third class to subscribe for stock in sugar factories, and to vote bonds therefor.” This act by its…

This is an action on a policy of life insurance in the sum of $0,000, which was issued ¿larch 4, 1879, on the life of John \V. Ilillmon, for the sole use and benefit of bis wife, Sallie E. Hillmon, the plaintiff below, and the defendant in error here. The case has had an eventful history. John ¿V. Hillmon was killed, as it is claimed, on March 17, 1879, by the accidental discharge of a gun at a camp near Medicine Lodge, in a portion of Kansas which was then sparsely settled.

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

<p>Corporate Debts — Liability op Stookholdtcrs — Action to Enforce — Evidence — Question for Jury.</p> <p>In an action against the record holder of stock to enforce, under the Maine statute, the liability to corporate creditors for the amount unpaid thereon, it appeared that defendant gave a receipt for the stock in question, and thereafter signed a proxy, reciting that he was a stockholder. Helé sufficient evidence to entitle plaintiff to go to the jury, under proper Instructions, on the question whether defendant dealt with the corporation. and obtained and held the stock, so as to make him liable as a stockholder, within the meaning of the statute, notwithstanding the real or equitable owner of the stock was liable.1</p>

* This suit was brought by Walker county, Ala., against the defendant in error, tlie Fidelity & Deposit Company of Maryland, as surety on the official bond oí J. W. Davis, tax collector of said county. A trial was had before a .Jury, which resulted In a verdict and judgment for plaintiff in error in tlie sum of 85,560.25, from which judgment the plaintiff prosecutes this writ.

<p>1. Judgment — Rks Judicata.</p> <p>A petition in a suit to enjoin a village and others from preventing the restoration of plaintiff’s street railroad, removed by defendants for plaintiff’s failure to comply with the ordinance which authorized its construction and operation, was based on an alleged compliance with such ordinance, but did not pray for damages. A demurrer to the petition for want of facts was overruled, and the court found, inter alia, that the rails, ties, etc., had been removed, piled up, and held at plaintiff’s order, and in conclusion found, as a matter of law, a failure to comply with the ordinance, for which it expressly denied relief and dismissed the petition,’ and the decision was affirmed on appeal. Helé, that the decree was conclusive in a subsequent action at law by plaintiff as to his right to damages for the removal, but not as to damages for the conversion of his property.</p> <p>2. Partial Defense — Pleading as Pull Defense under Ohio Code — DE' murker.</p> <p>While a partial defense may be pleaded under the Ohio Code, if it is attempted to be set up as a full defense it is subject to demurrer.</p> <p>Severens, 3., dissenting.</p>

<p>1. Public Domain — Cutting and Removal or Timber — Acts Authorizing— Construction.</p> <p>Tlie act oí June 8, 1878, authorizing citizens and residents of the states of Colorado, Nevada, and tlie territories, and “all other mineral districts of the United States,” to fell and remove timber on the public domain, does not apply to the state of Oregon, there being no such mineral district.</p> <p>2. Same — Act Prohibiting — Construction—Cutting for Use in Quartz Mill.</p> <p>Tlie proviso to the act of June 3, 1878, § 4, prohibiting the cutting and removal of timber on tlie public domain, provides that it shall not prevent any minor from clearing land in working his claim, or from taking timber to support Ills improvements. IfeW, that the taking of the timber for use in a quartz mill adjacent to the land from which it was cut was not within tlie proviso, and hence was prohibited by tlie act.</p> <p>3. Same — Question of Willful Trespass — Imposition of Penalty.</p> <p>As the unlawfulness of cutting for use in a quartz mill adjacent to the lands from which it is taken is fairly open to question, under the act, — the precise question never before having been decided, — a cutting for such a purpose will not be held to be willful, and hence the penalty prescribed therefor will not be imposed, but the trespassers will be held liable only for the actual value of the wood in the trees.</p>

<p>Interstate Commerce Regulations — Carriers of Live Stock — Failure to Unload Train — Action for Penalties — Complaint.</p> <p>By Rev. St. §'§ 4386-4390, no common carrier of live stock conveying it from one state to another shall coniine the same in cars longer than 28 consecutive hours without unloading for rest, water, etc., and a penalty of from $100 to $500 for violating the statute is made recoverable in the name of the government by a civil action. Held, that a carrier’s confinement of a train load of cattle for a longer period than 28 hours without unloading was a single offense, within the meaning of such statute; and hence, in an action therefor, separate counts in the complaint or declaration for each car, intended to multiply the penalty by the number of cars, was not permissible.</p>

<p>.Action by E. O. Mohrstadt, administrator of the estate of Thomas A. Thompson,. deceased, against the Mutual Life Insurance Company. Motion by plaintiff to retax costs. Motion denied.</p>

<p>At Law. Or deRrarrer to declaration.</p>

Ill Error to the Circuit Court of the United States for the District of Kansas.

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

<p>1. Sale — Construction of Contract.</p> <p>A sale of all the ice in certain ice houses, for a price based upon the quantity shown by an agreed survey made before tlie contract was reduced to writing, is a sale in bulk, and not of the quantity shown by the survey.</p> <p>2. Same — Implied Warranty of Quality.</p> <p>An implied warranty by a seller of an article which is In existence, as to quality or against defects which are not obvious, arises only where the circumstances are such as entitle the buyer to rely upon the knowledge or opportunity of inspection which the seller possesses and he does not possess.</p> <p>3. Same — Contract Construed.</p> <p>Defendant sold to plaintiu. in bulk all the Ice stored in certain ice houses, with the understanding that plaintiff purchased it to resell in the general course of the ice business in a city. Defendant did not put up the ice, but bought it after it was stored, and had never seen it, and so stated to plaintiff, also telling him from whom he purchased it, and that he had no other information as to its condition or duality than the statements of such seller. Held, that under such circumstances there was n9 implied warranty by defendant that the ice was all of merchantable quality.</p>

Appeals from tlie District Court of the United States for the District of Indiana. On February 2, 1899, an involuntary petition was filed in the court below, sitting in bankruptcy, by three creditors of -Marion Folsom, to procure his adjudication as a bankrupt. These creditors represented about $1,650 of a total indebtedness exceeding $28,000.

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

Petition for Kevision of Proceedings of the District Court of the United States for the District oí Kentucky, in Bankruptcy. This petition for review relates to a case in bankruptcy which has been twice before this court upon appeals which concerned the adjudication of Simonson, Whiteson & Co. as bankrupts. 37 C. C. A. 337, 95 Fed. 948. and 40 C. C. A. 474, 100 Fed. 420. The adjudication was made on the 20th day of Sexitember, 1899.

<p>1. Bankruptcy — Exemption op Bankrupt prom Arrest — Injunction.</p> <p>The determination by a state court in an action against a bankrupt that the debt sued on was created by the fraud of the defendant while acting in a iidueiary capacity, and the awarding of an execution against his body under the state statute, are not conclusive upon the court of bankruptcy on a petition for an injunction to restrain the enforcement of such execution that the debt is one from which the bankrupt will not be released by a discharge under Bankr. Act 1898, § 17, but that question is to be determined by the court of bankruptcy for itself under the federal laws and decisions.</p> <p>3. Same — Debts Released by Disciiaroe.</p> <p>A debt for the proceeds of cotton purchased and resold by a bankrupt as a broker on orders from a customer is one from which he is released by a discharge under Bankr. Act 1898, § 17, and his right to exemption from arrest and imprisonment upon an execution issued from a state court upon such debt will be protected by injunction pending a determination of his application for discharge.</p>

<p>Bankruptcy — Abatement of Proceedings — Death of Bankrupt after Petition Filed.</p> <p>Under the provisions of Bankr. Act 1898, § 1, els. 4, 10, that “bankrupt” shall include a person against whom an involuntary petition has been filed, and “commencement of proceedings,” with reference to time, shall mean the date when the petition was filed, in connection with section 8, which provides that “the death or insanity of a bankrupt shall not abate the proceedings,” the death of a person against whom an involuntary petition has been filed after the service of subpoena, but before the return day, does not require or authorize a dismissal of the petition.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.’</p> <p>. Appeal by tbe United States from the decision of the circuit court reversing a decision of the board of general appraisers classifying for duty an importation of artificial leaves, some made of paper and some of cotton cloth.</p> <p>The following is the oral opinion of the circuit court (TOWNSEND, District Judge):</p> <p>“In Re Zeimer (O. O.) 66 Bed. 740, Judge Coxe. decided that merchandise, such as that here in question, which comprises artificial leaves, some made of cotton and some of paper, should he classified for duty at 25 per cent, ad valorem, as ‘manufactures of paper not specially provided for,’ under paragraph 425, or as. ‘manufactures of cotton not specially provided for,’ at 40 per cent, ad valorem, under paragraph 355, of the act of 1S90. The articles in this case were classified for duty at 50 per cent, ad valorem as ‘artificial flowers or parts thereof,’ under paragraph 443 of said act. Judge Coxe decided that these leaves were not commercially known as ‘artificial flowers or parts thereof.’ The only question herein is whether, in view of the additional evidence as to commercial designation, the decision of Judge Coxe should be modified. This case is tried under a stipulation, which is as follows: ‘It is conceded by counsel for the importers and for the United States that artificial leaves identical with those herein involved are chiefly used by, and dealt in by, the millinery trade, and are by said trade generally, uniformly, and commercially known both as “artificial flowers” and as “parts of artificial flowers,” and that the same was true at and prior to the date of the tariff act passed March 3, 1883, and that this stipulation shall be incorporated in the record herein in lieu of any further testimony before the réferee, and that the case shall thereupon be closed before tbe referee, and shall be considered at issue.’ It further appears, however, that the confectioners’ trade import immense numbers of these leaves everyyear, One confectioner (Cassell) says that be imports about two hundred thousand gross a year, to he used for fruits and ice cream, and that, although he also handles artificial flowers, these leaves are not included in his trade within the terms ‘artificial flowers’ or ‘parts of artificial flowers,’ and are not commercially known as such.' Other witnesses testify to the same effect In these circumstances. the evidence as to a uniform trade designation, which is confined to a single trade, is not sufficient to change the classification of the articles from what they are in fact, namely, artificial leaves, made of cotton or of paper. The decision of tlie board of general appraisers is reversed.”</p>

<p>1. Constitutional Law — Statutes—Elections—Prevention of Exercise of Suffrage.</p> <p>Rev. St. § 5507, providing that every person preventing another from exercising tlie right of suffrage, “to whom that right is guaranteed by the fifteenth amendment to the constitution,” shall be punished, otéis based solely on Const. Amend. 15, declaring that the right of United States citizens to vote shall not be denied, etc., on account of race, color, or previous condition of servitude; and Const, art. 1, § 4, providing that states may prescribe the times, places, and manner of holding elections for senators and representatives, hut that congress may at any timo, by law, make or alter such regulations, cannot be invoked to support the validity of such statute.</p> <p>2. Same — Power of Congress — Prevention on Any Account — Race—Color.</p> <p>Const. Amend. 15, declares that the right of United States citizens to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude, and that congress shall have power to enforce this article by appropriate legislation. Rev. St. § 5507, based on such amendment alone, provides that every person who prevents, hinders, controls, or intimidates another from exercising or in exercising the right of suffrage guarantied by tlie fifteenth amendment to the United States constitution, by means of bribing, etc., shall be punished. Held, that such statute was unauthorized by such amendment, since the latter does not grant congress the power to make criminal the deprivation of a citizen’s right to vote, except in the instance of a discrimination on account of race, color, or previous condition of servitude, and the statute makes it an offense to deprive a man of his right to voto on any account whatever; hence an indictment in tile words of the statute is demurrable.</p>

<p>1. Indictment — Description of Offense — Violation of National Banking Law.</p> <p>In an indictment under Rev. St § 5209, charging an officer of a national banking association with the willful misapplication of certain moneys,' funds, and credits of the bank by using the same to discount an unsecured note of a person known to be insolvent, such note does not constitute the subject-matter of the offense, and need not be set out in hiec verba. A description by giving the date and amount and the name of the maker, so as to advise the accused with reasonable certainty what note is intended, is sufficient.</p> <p>2. Same.</p> <p>It is not a substantial defect in such an indictment to aver that the misapplication of the funds was without the knowledge “and” consent of the bank, its directors, .etc., instead of using the disjunctive form.</p> <p>3. Same.</p> <p>An averment that defendant misapplied “certain moneys, funds, and credits” of the bank does not render the indictment bad' for indefiniteness, where it is followed by an explicit statement that the misapplication was committed by means of discounting a note, sufficiently described, which was known by him to be worthless.</p> <p>4. Same — Variance—Designation of Persons Other than toe Accused.</p> <p>An averment that such note was “made and drawn” by a person designated by his full first and sur names is supported by proof that it was made tiy such person, although it is not shown whether it was signed with his full first name or by his initials.</p> <p>6. Same — Description of Instrument.</p> <p>-The indictment averred that the note was dated on the 8th day of December, -1894, and was due and payable “on the 11th day of April, A. D. 1894.” The proof corresponded with the indictment as to date, but showed that the note was due on the 11th day of April, 1895. Held, that the mistake in the indictment was one so obvious that it could not have misled the accused to his prejudice, and that the variance was not fatal. The note not being tlie subject-matter of the offense, and the averment of the date of its maturity one which was immaterial and unnecessary to its identification, the allegation as to the day of maturity might he rejected as surplusage.</p> <p>9. Same.</p> <p>An averment in the indictment that the misapplication of funds by the accused was for the benefit of himself “and other persons to the grand jurors aforesaid unknown” did not entitle the defendant to have the question whether the grand jury did in'fact know, or should have known, the names of such other persons, submitted to the jury for the purpose of establishing a variance, since the failure to state such names, even If they might have been stated, could not have been prejudicial to defendant.</p> <p>7. Criminal Law — Trial—Refusal to Re-rf,ad Instructions</p> <p>a jury returned into court and requested the judge to re-read the portion of his instructions relating to the particular charge made in one count of the indictment. The judge did so, and the attorney for defendant then requested that the portion of the charge relating to the presumption of innocence and reasonable doubt be also re-read. This request the court refused, after having asked the jury if they desired to have such parts re-read, and received a reply, through the foreman, that they did not. IIdd, that such action by the court was not error.</p> <p>8. National Banks — Offenses—Misapplication of Funds by Officer.</p> <p>The willful misapplication of the funds of a national bank by _ an officer without the knowledge or consent of the bank, in violation of Jtev. St. § 5209, is not changed, as to its criminal character, by the fact that the act subsequently became known to the officers of the hank, and that they impliedly consented thereto, by taking no action in regard to it.</p> <p>9. Criminal Law — Trtal—Instructions.</p> <p>Tlie refusal of the court in a criminal case to instruct the jury, as requested, that they might find the defendant guilty or innocent of some of the offenses charged in tlie indictment, and return a verdict of disagreement as to others, cannot be held error prejudicial to the defendant, where he was found guilty upon one count and acquitted upon the others. It must be presumed that the verdict would have been the same had such instruction been given.</p> <p>10. Indictment — Description of Offense — Misappropriation of Funds of National Bank.</p> <p>Where an indictment, under Rev. St. § 5209, for a criminal misapplication of the funds of a national bank, fully describes the act constituting- the alleged offense, so as to advise the accused of the particular transaction which is called in question, and the act is averred to have been done willfully and with intent to injure and defraud the bank, and without its knowledge or consent, it is sufficient to allege generally that it was done for the use, benefit, and advantage of the accused, or some company or person other than the bank, and a conversion of the fund or credit need not be averred.</p> <p>11. National Banks — Offenses—Misappropriation of Funds.</p> <p>To constitute the offense of willful misapplication of the funds of a national bank, under Rev. St. § 5209, it is not essential that the money should be actually withdrawn from the bank, but the offense may be consummated by giving fraudulent credits, and the transfer of the same in the usual way by means of checks. An indictment for such offense, alleged to have been committed by discounting a certain note, is sustained by proof that defendant, as president of the bank, without the knowledge or consent of the directors discounted such note, which he knew to be worthless and insufficiently secured, crediting the proceeds on the books of the bank to the maker, subject to his check; that the maker drew a cheek for the amount in favor of a third person, who indorsed the same to defendant; and that defendant hy means of such. cheek paid a note held by the bank for which he was himself liable.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Yew York.</p> <p>This is a writ of error from a judgment of the circuit court for the Southern district of New York rendered upon a verdict of guilty upon an indictment against the defendants for a joint violation of section 3 of the act of August 17, 1894, to prevent injurious deposits within the harbor of New York City. 28 Stilt 338. The statute, after providing that the owner or master of dumping scows or boats must obtain a permit defining the limits within which the discharge of scows may be made, provides as follows: “And any deviation from such dumping or discharging place specified in such permit shall he a misdemeanor, and (lie owner and master or person acting in the capacity of master of any scows or boats dumping or discharging such forbidden matter in any place other than that specified in such permit shall be liable to punishment therefor as provided in section 1 of said act of June 29, 1888; and the owner and master or person acting in the capacity of master of any tug or towboat towing such scows or boats shall he liable to equal punishment with the owner and master or person acting in the capacity of master of the scows or boats: and further, every scowman or other employee on board of both scows and towboats shall bo deemed to have knowledge of the place of dumping specified in such permit, and the owner and master or person acting in the capacity of master shall bo liable to punishment as aforesaid for any unlawful dumping, within the meaning of this act or of the said act of June 29, 1888, which may lie caused by the negligence or ignorance of such scow-man or other employee; and, further, neither defect in machinery nor avoidable accident to scows or towboats, nor unfavorable weather, nor improper ¡handling or moving of scows or boats of g.rty kind whatsoever, shall operate .to release the owners and masters and employees of scows and towboats from the' penalties hereinbefore mentioned.” ' In. the act of June 29, 188S,- the 'oftetise is made a misdemeanor, punishable by fine or imprisonment or both. 25. Stat. 209.</p> <p>¡. The following facts appeared upon the trial to the jury: On August 29, .1899, the steamer F. N. Brown, of which the defendant Randall was master, received a permit to pass with dumper 39, of which Nelson, the other defendant, was master, containing cellar dirt, from Fortieth street to the south and east of Sandy Hook light-ship, and deposit the dirt in not less than 15 fathoms of water. The tug and tow left Fortieth street on the evening of August 29th, reaching the dumping ground about 10 o’clock p. m. Randall gave the prescribed signal, circled around the light-ship, and, assuming or believing that the scow had been emptied, started upon the return trip. The dumper contained- four pockets, three of which were emptied, but about half of the contents of the fourth pocket “stuck,” or adhered together, and were not-discharged. Nelson probably knew this fact at the light-ship, but did not attempt to inform Randall, closed the doors of the pocket as well as he could, and- intended it to be taken back with that part of the load to Fortieth street, where, it would be transferred to another pocket or removed. The sea was 'rough, with a large ground swell from the southeast, and the night was dark. !.In .still weather means are used to compel the dirt, to leave the pocket. It is sometimes washed out with a hose, and sometimes it is started by the tug’s butting against the scow. On the night in question Nelson and Randall testi’-fied that any attempt would have been dangerous, by reason of the weather, or have .been futile. When tug and tow'passed Ft. Lafayette, at 12:55 on the morning of August 3d, the mate of the government patrol vessel saw that the after pocket of the scow listed, boarded her, and found that it was partially filled' With dirt. The tug, at Bay Ridge, changed the position of the scow so 'th'at thereafter the loaded end was forward, and upon the return trip the dirt'oozed out, until when she reached Fortieth street, about 3:80 a. m., she 'was either empty, or had on board about 20 car loads. The entire quantity had oozed out before morning.</p>

<p>1. Statute Forbidding Deposits in New York Harbor — Violations—Liability of Master of Towboat.</p> <p>Act June 29, 1888, as amended (1 Supp. Rev. St. 591; 2 Supp. Rev. St. 219), forbidding injurious deposits in New York Harbor and adjacent waters, provides (section 3) that tbe master of the towboat, or person acting as such, depositing such matter shall he liable to equal punishment “with the master of the scows for dumping prohibited matter in any place other than that specified in the permit.” Held, that the fact that the master of a tow boat engaged in towing scows laden with refuse was asleep when a forbidden act was committed would net relieve him from liability.</p> <p>2. Same — Constitutionality.</p> <p>The act is not unconstitutional because it makes the master of a tugboat criminally liable for the forbidden acts of his associates in the course of their general undertaking, though he may he innocent of criminal intent, since the maxim that crime proceeds from a criminal mind does not apply to statutory offenses.</p> <p>3. Same — Prosecution—Indictment—Motion to Dismiss — Misjoindf.ii of Defendants.</p> <p>A motion to dismiss, as to .each defendant, an indictment under such act against several defendants, who it alleged aided and abetted In the act of dumping in violation thereof, made on the ground that they were improperly joined, was properly overruled, since, the act being a misdemeanor, all were principals, and the indictment consequently charged a joint offense.</p> <p>4 Same — Construction—Instructions—Defense—Negligence of Scowmen.</p> <p>The concluding clause of section 3 of the act, that “neither defects in machinery, nor avoidable accidents to scows or tug-boats, nor unfavorable weather, nor improper handling or moving of scows or boats of any kind whatsoever, shall operate to release the owners and masters,” by implication absolves masters of towboats and scows from criminal responsibility for violations caused by unavoidable accidents, but not from those caused by negligence or ignorance of the employes of the scows; and hence, in a prosecution thereunder, there was no error in instructing that failure of scowmen to observe the signals of the towboat did not exonerate any of the defendants.</p>

On June 13, 1899, the Western Coal & Mining Company, a corporation of the state of Missouri, exhibited its 1)111 of complaint to the circuit court of the United States for the district of Kansas (Third division) against W. T. Wright and 45 other persons by name, charging that they, and each and all of them, were residents and citizens of the state of Kansas; and also against “all members of the United Mine Workers lodges or unions in Crawford and Cherokee counties in the…

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>This is a suit in equity upon a bill filed by the German-American Filter Company of New York, as assignee of Heinrich Stockheim, complaining of the infringement by the appellants, the Loew Filter Company and Charles H. Loew, its secretary and treasurer, of patent No. 378,379, issued to Stockheim February 21, 1888,’ for a process for filtering beer. The bill charged the defendants with manufacturing and selling the apparatus employed by brewers in filtering beer, according to the process for which the Stockheim patent was granted, and thereby contributing to the infringement by the brewers. Upon the filing of the bill and supporting affidavits the appellee moved for a preliminary injunction restraining the appellants from manufacturing and selling the apparatus which was alleged to constitute the contributory infringement complained of. The defendants, upon the hearing of the motion, submitted affidavits for the purpose of showing a prior use by other parties of the Stockheim invention for more than two years preceding the date thereof. The judge presiding at the circuit granted the injunction (103 Fed. 303), and the defendants appealed.</p>

<p>In Equity. Suit for infringement of patents. On exceptions to report of master.</p>

The declaration in this case is in assumpsit upon a bill of lading, a copy of -which is attached to the pleading, and contains four… Held: and safely carried by it from Chicago to Buffalo, Erie, or Fairport, and at one of these places to be safely delivered for the plaintiff, and the contract -of the defendant to take due and proper care of the grain whilst it should have the care and custody thereof for the purpose aforesaid; and the fourth, the general allegation that…

In Admiralty. Libel in rem for rent of wharf on contract with charterer of the steamer. The steamer O. W. Moore was and is owned by Hart Steamboat bine, a Wisconsin corporation; and the home port of the steamer was Green Bay, Wis., and so shown in connection with the name painted upon the stern of the boat.

<p>1. Towage — Relation and Duties of Tug to Tow — Loss of Tow.</p> <p>An engagement to tow imposes an obligation to exercise that degree oí caution and skill which prudent navigators usually employ in similar service, and, where the tows are stranded at a point far off their proper course, the burden is cast upon tlie towing vessel to establish some excuse for tlie deviation.</p> <p>3. Same — Negligent Navigation of Tug.</p> <p>A propeller was proceeding down Lake Superior from Duluth with three tows on a line, all the vessels being loaded with lumber piled several feet above tlieir decks. Early in the morning Devil’s Island was seen to tlie southward about the usual distance, and the master then took a course intended to take the vessels about 4 miles to the north of Eagle Harbor, which was 126 miles distant. Tlie weather was smoky through the day, so that the shore could not he seen, and a 20-mile wind blew from tlie west and northwest, striking the vessels on the port side. No allowance was made for drifting until 4 p. m., when the vessels had made about 90 miles with the wind and sea constantly increasing. Then the course was changed more to the northward, hut no soundings were taken. At 8:60 the vessels stranded on a reef which was 17 miles out of their proper course. The tug sheered off. and. with her assistance, tlie first tow was released in a damaged condition, and taken to port, but tlie line upon which the second tow- was held parted, and the last two tows were lost. Held, that tlie burden rested upon the tug to show that she was supplied with a compass such as ordinarily used, which ivas in proper condition, and that due care was exercised in navigation, and that in tlie absence of any evidence in regard to the compass, the deviation from tlie proper course must be held the fault of the tug either in not taking the proper course, or because the master failed to make proper allowance for the drifting of the vessels owing to the wind, and the fact ihat their loads were high above the decks, and to take soundings to ascertain their position. which, as appeared from the chart, would have shown that he was’ dangerously near the shore at the time he first changed Ills course, and would have enabled him to avoid danger by proceeding slowly, and by continued soundings.</p> <p>3. Same — Contributory Fault of Tow — Action in Extremis.</p> <p>Immediately upon touching bottom, the tug signaled to the tows to starboard their helms, following by alarm signals. The last two tows were sailing vessels, the first of which failed to hear the first signal, and, her line having parted, she grounded within a minute aftei the signal was given. The last tow obeyed the signal, but was compelled to immediately port again to avoid collision with the one in front of her. Held that, even ii’, by the utmost promptness of action, they might possibly have escaped, their error, if any, was one iff extremis, which could not be urged by the tug as a contributory fault.</p>

<p>In Admiralty. Libel of cargo under claim of lien for charter money-due libelant from the carrier as charterer.</p>

It appears from the libel and the exhibits annexed thereto: That on January 4, 18S8, the ship Eclipse was chartered by the owners, A. Anderson and others, through their agent, J. O. Eschen, to the Alaska-Yulton Transportation Company, a corporation, for a voyage to St. Michaels, in the territory of Alaska, for which the charterer was to pay fl,500 per month in cash, -in advance monthly, and wTas to provide and pay for all provisions, wages of the captain, officers, and crew,…

In Equity. In the matter of intervening petition claiming a maritime lien for supplies. On exceptions to master’s report. Goulder, Holding & Masten, for petitioners, Loftus Cuddy and Mar-' tin Mullen.

<p>Maritime Liens — 'Wrongful Death — Statutory Action por Damages.</p> <p>The wrongful death statutes of hoth Illinois and Wisconsin give a right of action in hehalf of the next of kin of the deceased to recover the damages sustained hy them against the person or corporation causing such death. The water-craft statutes of hoth states make a vessel liable for all damages arising from injuries done to person or property by sueli vessel. Held, that such water-craft laws were not intended to give a lien in favor of the next of kin of persons killed by tlie negligent navigation of a vessel, but only in favor of those directly injured in person or property, and that a suit in rem for wrongful death of a person killed as the result of a collision, based upon the statute of either state, cannot be maintained in a court of admiralty against the vessel charged with being in fault for the collision.1</p>

In Admiralty. Appeal from the District Court of the United States for the Northern District of Illinois. This is a libel in rem against the steamer Mariska, filed by the Lake Michigan & Lake Superior Transportation Company of Chicago, the owner of the propeller Jay Gould, in a cause of collision civil and maritime.

<p>Collision — Steam and Sail.</p> <p>International Regulations 1890, art. 12, providing that any vessel may, if necessary in order to attract attention, in addition to the lights which she is required to carry, show a flare-up light, a schooner cannot be held in fault for a collision with a steamer in the night, because of a failure to exhibit such light, where other lights were burning brightly, and no necessity appeared therefor until after the time she was discovered by the steamer.</p>

.’In-Admiralty. Suit in rem to recover damages for destruction of the: electric; engine launch named the “Wolverine,” and injury to the intervening ■ libelant’s boat bouse by collision. Hearing on the smérits,: .

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

<p>1. Collision — Moored Vessel.</p> <p>A presumption of negligence arises against a steamboat from the fact of a collision with a moored vessel, and imposes on the steamboat the burden of exonerating herself by exculpatory facts.</p> <p>2. Same — Harbor Regulations.</p> <p>Daws N. Y. 1897, c. 378, providing that it shall not be lawful for any vessels to obstruct the waters of a harbor by lying at the exterior end of the wharves, except at their own risk of injury from vessels entering or leaving any adjacent dock, does not relieve a moving vessel from liability for a collision with a vessel so moored, which did not unduly obstruct navigation, and where the moving vessel was not seeking entrance to an adjacent slip..</p>

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

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

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

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

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

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