Volume 109 — Federal Reporter

Motion to vacate and set aside an order permitting aud directing that the appellants be admitted to bail pending the appeal herein.

<p>In Equity. Suit for foreclosure of a railroad mortgage. On petition of the Norfolk & Western Railway Company for an injunction in the action of Thomas Lewis, receiver of the Castle Rock Mining Company, and others, against the Norfolk & Western Railway Company.</p>

In Equity. On exceptions to master’s report and petition for an issue. The following statement of facts is taken from the brief of counsel for complainant: William M. Singerly was president, principal stockholder, and active manager of the Ohestnut Street National Bank; also of the Chestnut Street Trust & Saving Fund Company.

<p>In Equity. On demurrers to hill.</p>

<p>1. Taxation — Supplying Omitted Assessment — Omo Statutes.</p> <p>Under the Statutes of Ohio, as construed by its supreme court, where proper return has been made of the stock of a national bank for taxation, from the value of which stockholders have been allowed to deduct their indebtedness as in case of other moneyed capital, a county auditor has no power, in a subsequent year, to placo the amount of such deductions on the duplicate list as an omission, and collect taxes thereon, although the deductions were not authorized by law.</p> <p>2. Judgment — Res Judicata — Matters Concluded.</p> <p>The doctrine of res judicata cannot be applied to judgments or decrees which merely interpret general statutes, and the obligations of citizens under them, except in so far as such judgments or decrees involve findings of fact to which such interpretation lias -been applied. A decree enjoining the collection of taxes levied in one year cannot be given effect as an adjudication of the nonliability of the complainant for similar taxes levied on the same property in a subsequent year, although there has been no change in the laws by legislation, since the complainant cannot, by such decree, acquire a vested and permanent right to have such laws interpreted in the same way as applied to Mm, although they may be enforced as to others, in accordance with a later and different interpretation.</p> <p>3. Taxation — National Bank Shares — Effect of Decision Changing Construction of Statute.</p> <p>By a decision of the supreme court of Ohio rendered in 1888, stockholders in national banks were held entitled to deduct from the valuation of their shares for purposes of taxation the amount of their indebtedness, and subsequently such deductions were allowed and made. In 1897 the court rendered a contrary decision .upon the same statutes, which was affirmed by the supreme court of the United States. Held* that all stockholders, including those who were parties to the first decision, were subject to taxation in accordance with the later decision, after it was rendered, but that such decision was not retroactive, so as to authorize the state or municipalities to collect taxes on the amount of deductions made in previous years under the former decision, while such decision was the law of the state.</p>

<p>In Equity. Suit for specific performance' of contract.</p>

Bill in equity to remove a cloud from tbe complainant’s title to real estate alleged to have been created by an unlawful assessment for street improvements.

<p>National Banks — Voluntary Liquidation — Enforcing Liability of Stockholders.</p> <p>The only authorized procedure for enforcing the individual liability of the shareholders of a national bank which has gone into voluntary liquidation is by a bill’ in equity in the nature of a creditors’ bill, brought by a creditor “on behalf of himself and of all other creditors of the association against the shareholders thereof in any court of equity for the district in which such association may have been located or established,” as provided by Act June 30, 1876 (19 Stat. 03); the purpose of the statute being to create a fund to be applied with and in aid of the assets of the bank in all cases of voluntary, as of involuntary, liquidation, through a general creditors’ suit in a court of equity, having power to enforce the liability equally and ratably as between the shareholders, and' to determine the extent to which, and those for whose benefit, it shall be enforced. A trustee appointed by the shareholders to conduct the business of liquidation’ has no authority to enforce such liability, nor can a suit for that purpose be maintained in any district other than that in which the bank is located.</p>

<p>1. Corporations — Contracts—Avoidance for Fraud of Agent.</p> <p>A contract Cor the sale of logs to a lumber company is not rendered void for fraud, or voidable at the instance of tlie company, after it has been fully performed by the seller, so as to preclude him from maintaining a suit in equity to enforce a lien given thereby, by the fact that, after the contract was made, an agreement was made between the seller and the manager of tlie company, who acted in its behalf iu making the purchase, for a division of the profits of the sale, where it appears that such agreement was not contemplated at the time of the sale, but was subsequently exacted by the manager, and acceded to by the seller, under threat of a repudiation of the contract by the company, and no damage is shown to have resulted to the company from the subsequent agreement between the vendor and the agent.</p> <p>2. Interest — Kentucky Statute.</p> <p>Under Carroll’s Ky. St. e. 72, interest is recoverable on the price of property sold and delivered from the time such delivery is made and the price is payable.</p>

This is an appeal from a decree of the circuit court of the United States for the Western district of Virginia, rendered on the 21st day of December, 1898, annulling and setting aside a deed of trust from T. D. Berry and wife to C. A. Board, trustee, dated April 22, 1898, to secure two negotiable notes, of §>2,500 each,' held by tbe appellant Price.

<p>1. Actions — Form—Actions to Recovick License Fees.</p> <p>Debt is tlio appropriate form of common-law action for the recovery of license fees imposed by a municipal ordinance which provides no siieeilic method for their collection.</p> <p>3. Limitations — Pennsylvania Statute — Action or Debt.</p> <p>An action of assumpsit under the Pennsylvania practice act of 3387, which includes in. that 1'orm of action the common-law actions of covenant, debt, and assumpsit, brought by a municipal corporation to reco'v or license fees imposed by an ordinance, for which debt would have been the appropriate form of common-law action, is not within the provision of the Pennsylvania statute of limitations covering “actions of debt grounded upon any lending or contract without specialty,” which includes only contracts in fact, voluntarily entered into, and does not apply to actions on quasi contracts, such as obligations imposed by law.</p>

<p>1. Life Insurance — Place of Contract.</p> <p>Where an application for life insurance was made in Iowa by a resident of that state, and tbe medical examination was made, tbe premium paid, and tbe policy delivered in Iowa, tbe policy is an Iowa contract, and governed by tbe laws of that state then in force.</p> <p>2. Same — Iowa Statute — Construction.</p> <p>Acts Iowa, 23d Gen. Assem. c. 33, entitled “An act to prevent discrimination in life insurance,” contains a number of specific provisions prohibiting discriminations, and tbe further provision, “nor shall any company make any contract other than is plainly expressed in the policy issued thereon.” Helé, that such general provision was limited by the title of the act and the specific provisions, and applied only to discriminations.</p> <p>3. Same — Construction of Policy.</p> <p>A provision in a life insurance policy that it shall be incontestable after two years does not apply, where the insured dies within two years after the policy is issued, because the time will have expired before an action can be brought thereon under the laws of the state.</p> <p>4. Same — Application—Covenant against Suicide while Insane.</p> <p>A covenant by an applicant for life insurance in his application that he will not die by his own hand while insane does not create a contract which will defeat a recovery on the policy where the insured takes liis own life while insane, since such covenant was one which it was impossible for the insured to observe, and known to be so by both parties.</p> <p>5. Same — Construction of Contract — Dependent and Independent CoveNAKTS.</p> <p>A life insurance poiicy contained an express provision that, on receiving satisfactory proofs of the death of the insured, the company would pay the amount of the policy to a third person as beneficiary, subject to the single condition that the premiums should be paid as they became due. In the application, which was attached to the policy and made a part of the contract, the insured covenanted that he would not die by his own hand while insane. He subsequently took his own life while insane. Held, that the covenants to pay the amount of the insurance and to pay the premiums were dependent, and affected the beneficiary as a party to the contract, but that the covenant of the insured against suicide while insane and that of the insurer to the beneficiary were independent, and the breach of the former by the insured could not affect the right of the beneficiary to recover, the premiums having been regularly paid.</p>

Petition for Kevision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy. This cause comes here upon a petition of William B. Biker, the father of the bankrupt, to review an order made by the district judge*, Southern district of New York, denying motion to vacate; an ex parte injunction order, granted March 7, 1901, upon the application of the trustee in bankruptcy. 107 Fed. 96.

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

<p>Bankruptcy — Validity of Lien — Mortgage Given in Part for Past Consideration,</p> <p>A mortgage given by a bankrupt within fonr months ’ prior to his bankruptcy, in order to constitute a valid lien, under Bankr. Act 1898, § 67d, must have been given or accepted iñ good faith, and not in contemplation of, or in fraud upon, the act, and “for a present consideration.” Where a mortgage so given was in part for a present consideration, and in part as security for a renewal of an antecedent debt previously secured by a mortgage, which was void as against other creditors because not recorded, it constitutes a valid lien to the extent of the new consideration, but is voidable as a preference to the extent that the notes secured were based upon the prior debt.</p>

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

<p>Bankruptcy — Bankrupt’s Arrest before Filing op Petition — Habeas ■ '.Corpus...</p> <p>Bankr. Act 1898 contains no provision authorizing a court of bankruptcy to discharge from custody on habeas corpus a bankrupt who was imprisoned' under a lawful civil process before the filing of the petition, even though the debt for which he is held is provable,' and lienee one from which he will be released by a discharge, nor is such authority given by anything in the general orders. Section 9a exempts the bankrupt from arrest on-civil process, only after proceedings have been commenced; and general order No. 30 of the supreme court (18 Sup. Ct. viii.) authorizes 'the'¿ranting of a writ of habeas corpus, only to bring an imprisoned debtor before the referee for the purpose of testifying.</p>

Action against defendant, as collector of internal revenue, to recover taxes claimed to have been illegally exacted from plaintiff as a sugar refiner.

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

<p>Contempt — Vacating Deckke- — Second Application.</p> <p>Where an application for vacation of a decree finding defendant guilty of, contempt had been made and denied, a second application to the same effect, without leave of court first obtained, will not be considered.</p>

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

This cause comes here upon appeal from a decree of the circuit court, district of Connecticut, dismissing th,e bill. 99 Fed. 982, 996. The suit was brought for alleged infringement of United States letters patent No. 544,637, dated August 13, 3895, to R. B. Dashiell, for improvements in breech-loading ordnance. Infringement was charged of claims 12, 14, 19, and 20, but only claim .19 is brought up on appeal.

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

<p>1. Maritime Liens — Wages—Master of Dredge.</p> <p>A master of a dredge, wliicli is incapable of being navigated, and therefore earns no money which passes through his hands, and who is, in effect, only a general superintendent of the work, having charge of the dredge and the men-thereon, and himself performing the duties of enginoer, fireman, and general deck hand, is entitled to a lien on the vessel for his wages, the same as any seaman.1</p> <p>3. Same — Questions of Fast — Findings of Master.</p> <p>Where the right to a maritime lien for- supplies depends on questions of fact, such as whether the supplies were ordered by the master and furnished on the credit of the vessel, and the evidence is conflicting, the finding of the master thereon, who heard and saw the witnesses, will not be disturbed.</p> <p>8. Same — Lien fob Supplies — Credit of Owner.</p> <p>The owner of a vessel cannot avail himself of the fact that he had acquired a personal credit at the place where supplies were furnished, but to which he was not entitled, to defeat a claim to a lien for such supplies.</p>

<p>1. Salvage — Nature of Service — Salvage or Towage.</p> <p>The German bark Piluger, after leaving San Francisco on a voyage, met with a sudden squall, which carried away her mainmast and mizzen topmast, fore-topsail and fore royal yard, injuring her decks to such extent that they leaked whenever a sea was shipped. She abandoned her voyage, and made for Santa Barbara, 200 miles distant. After reaching a point in Santa Barbara channel 12 miles from port, about 11 o’clock at night, she met a steamer, which, at request of her master, who, stated that he was not in peril, but desired to expedite his arrival to communicate with the agents, towed the bark into port, there being a dead calm. Hold, that the service was not one of salvage, but of tow-age only, and to be compensated as such, the bark being in no immediate peril, nor so disabled as to justify any reasonable apprehension for her safety if left to her own efforts in making port.</p> <p>2. Towage — Compensation for Voluntary Service — Amount.</p> <p>Where a steamer not engaged in the towing -business, nor fitted therefor, interrupts her voyage to tow a partially disabled vessel into port, such facts are to be considered in fixing the amount of her compensation for the service, and she is entitled to a larger award than would amount to a reasonable compensation for the same service If performed by a tug engaged in the business. In such case, where a steamer valued at $25,000 was delayed in her voyage eight hours, she was held entitled to an award of $350.1</p> <p>8. Same — Distribution of Award.</p> <p>Where a steamer interrupted her voyage to tow a partially disabled bark into port, for which she was awarded compensation on a quantum meruit as a towage, and not as a salvage, service, the master and crew are entitled to no part of such award.</p>

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

<p>1. Jurisdiction of Federal Courts — Federal Questions — Suit for Possession of Mining Claim.</p> <p>The fact that an action is brought, pursuant to the requirements of Rev. St. § 2326, to determine the right to the possession of a mining claim, does not confer jurisdiction of such action on a federal court.</p> <p>2. Appeal — Record—Failure to Show Jurisdiction.</p> <p>Where a case removed from a state court is taken to a circuit court of appeals for review, either on a writ of error or by appeal, the petition for removal is an essential part of the record to enable the court to determine its own jurisdiction, without which it will not proceed to a final adjudication.</p>

This is an appeal from an" interlocutory order, rendered ex parte and without notice, appointing a receiver of all the property of the appellant corporation situated in the state of Louisiana. It is alleged in the bill that the appellant is an English corporation, chartered with power to buy and sell lands in the United States, and with other powers not material to mention. The capital stock of the corporation is about $630,000, of which the complainant holds $178,000.

The action in the Circuit Court was by the appellants, as trustees for the holders of seventy-live million dollars mortgage bonds, issued by the Pitts-burg, Cincinnati, Chicago & St. Louis Railroad Company (commonly known as, and hereinafter called, the Pan Handle Railroad Company), to enjoin the appellee, a contractor engaged" in the excavation of á drain, under an order of the County Court of LaPorte County, Indiana, from tearing up the Pan Handle railway track, or using a…

<p>Bankruptcy — Poreci.osuke Suits in.State Court — Injunction.</p> <p>A court of bankruptcy, while having jurisdiction of an application for an injunction against proceedings in a state court where (.he assets of a bankrupt are concerned, will not, in the exercise of its discretion, enjoin ilie prosecution of a foreclosure suit brought in a state court against the bankrupt upon a claim of the trustee that the amounts claimed in such suit by the mortgagees, which appear to he greater than the value of the mortgaged property, are subject to credits and set-offs, and order a reference to determine such question, but will direct the trustee to apply for leave to intervene in the foreclosure suit, where it can more appropriately he put in issue and determined.</p>

<p>In Bankruptcy. On review of an order by the referee disallowing the claim of Minnie Neiman, wife of the bankrupt, for §4,000.</p>

<p>In Bankruptcy. On review of decision of referee.</p>

<p>In Bankruptcy. On certificate of referee with respect to the claim of the Warfield-Pratt-Howell Company.</p>

<p>Bankruptcy — Sale op Property by Trustee — Liability for Taxes.</p> <p>An adjudication in bankruptcy was made in December. February 1st following, a stock of goods owned by the bankrupt was assessed for taxation. The stock was- subsequently in the same month sold, by order of the referee, in bulk, at public auction, “free and clear from all liens.” The statutes of the state provided that personal property should be assessed each year in the name of the owner thereof on the 1st day of January, and that taxes on slocks of goods should be and continue a lien thereon in the hands of the owner or any purchaser in bulk; but the taxes were not leviable until September, nor payable until the succeeding January. Held, that such lien was not affected by the bankruptcy proceedings or the sale of the goods therein, and that under the contract of sale it was the duty of the trustee, for the protection of the purchaser, to provide for the payment of the taxes to be subsequently levied thereon from the bankrupt estate.</p>

Upon Exceptions to Report of Referee Disallowing Claims. Ervin, rage & Co., Incorporated, a corporation of New Jersey, for the sale, etc., of teas and coffees, doing business in Pennsylvania, filed claims for $10,773.33 and $7,5(55.78 as a general creditor of the bankrupt firm of R. T. Ervin & Co., composed of R. T. Ervin and Benjamin S. Pagan, doing business in Philadelphia and elsewhere in the sale of teas and coffees and the operation of restaurants.

<p>Indians — State Jurisdiction Over — Game and Fish Laws.</p> <p>Tlie authorities of the state of Wisconsin have no jurisdiction to enforce the game and fish laws of the state against members of the Chippewa Indian tribe residing on the Bad River reservation by arresting and punishing them for acts committed on their reservation. By Act March 3, 1885 (23 Stat. 362, 385, § 9), congress prescribed what acts should constitute crimes when committed by tribal Indians on a reservation within a state, and by what courts they should be tried therefor, and the jurisdiction so conferred is exclusive, a state having no power to add to the number of crimes defined by such act, nor its courts any jurisdiction to try or punish an Indian for any act done on his reservation. Moreover, by the terms of the treaty of September 30, 1854, by which the Chippewas ceded their lands to the United States, and which reserved certain lands which were afterwards formed into the reservations now occupied by them, they were given the right to hunt and fish therein until otherwise ordered by the .president.</p>

<p>On Petition for Writ of Habeas Corpus.</p>

<p>Unfair Competition — Packages and Labels — Right to Exclusive Use.</p> <p>Abandonment of the right to the exclusive use of a distinctive package or other dress for his goods hy its originator, who has used it generally and continuously for many years, is not shown by the fact that it has been also used, not only by defendant, but by others, unless it further appears that there has been such acquiescence by complainant; as to indicate, not only a practical abandonment, but also an intention to abandon.1</p>

<p>In Equity. Suit to enjoin alleged unfair competition.</p>

<p>Trade-Marks — Infringement—Preliminary Injunction.</p> <p>A preliminary injunction against the infringement of an alleged trademark will not be granted unless complainant’s right to’ its exclusive use is clearly established. The fact that it is used by numerous other parties, although such use is alleged to be wrongful, makes it the more necessary that the court should not determine the question, where it is doubtful, on a preliminary hearing.</p>

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

<p>Patents — Ineringement—Riveting Machine.</p> <p>The Jaberg xiatent, No. 553,284, for a riveting machine, which is a combination ol' well-known mechanical devices to constitute a riveting machine, having means of adjustment to suit objects of different thickness to be fastened together, whereby such objects may be firmly held in place during the process of riveting, was not anticipated, and is valid; also held infringed by a machine essentially that of the patent, except that it uses different means of applying the power by which its parts are operated.</p>

<p>1. Shipping — Breach of Charter — Evidence Considered.</p> <p>The master of a steatner, which was required by the terms of a verbal charter to load as mtfch of a cargo of lumber at the charterer’s dock as she could safely, with the privilege of completing her cargo at another port, held to have been justified in leaving the charterer’s dock with about one-third of- a full cargo, where the weather was stormy, the dock exposed to-the seas, and the water so shallow that the steamer began pounding on the bottom before she ceased loading, and the mas-' ter, after leaving the dock, waited from 5 o’clock in the evening until 11:30 the next day, before leaving, during which time there were no signs of better weather.</p> <p>2. Same — Failure to Deliver Cargo — Evidence of Shortage.</p> <p>Where the testimony of the officers and crew of a steamer concurred that all the lumber loaded by a charterer was delivered at the end of a voyage, a shortage -cannot be established by testimony on behalf of the charterer as to the quantity loaded, based entirely on an estimate of the total quantity on the dock, from which the witnesses deducted the quantity carried by two other vessels.</p>

In Admiralty. Petition for exemption from liability and for limitation of liability on account of loss of cargo by tbe sinking of a barge.

Appeals from the Circuit Court of the United States for the Southern District of Ohio. Held: though they have never been applied to the purpose intended. Messrs. Sinks and Hatch did deposit with the clerk of the Crawford county court of common pleas scrip repreRenting and exchangeable for the prior lien bonds described in tbe decree confirming the sale to the extent of $800,000, as required^by that decree.

Appeals from the Circuit Court of the United States for the Southern District of Ohio. These seven appeals have been heard together. The appellants are all general creditors of the Columbus, Sandusky & Hocking Railroad Company, whose claims have been duly established, but who appeal because they have not been allowed a preference over the mortgage debts of said railroad company in the proceeds of the sale of the mortgaged railroad property.

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

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

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

<p>Action by Plaintiff as Clerk of the Circuit and District Court to Recover Fees.</p>

The United States instituted this action on May 12, 1899, against the defendants in error to recover the value of 12,346 fence posts, of the value of $987.68, alleging, in substance, that the posts had been unlawfully cut and removed from government lands. The case was tried principally upon an agreed statement of facts, from which we cull the following admissions: The Price Trading Company is a mercantile corporation. A. Ballinger is its secretary.

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

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>W. R. Fox was a retail merchant doing business at Wayne, in the Indian Territory. He, purchased a stock of merchandise from various wholesale houses on credit, and, when his bills therefor matured, he was not able to meet them,” and on his own motion executed a deed of assignment to his brother, F. M. Fox, on his stock of goods, for the benefit of his creditors. Before the assignee qualified, some of his mercantile creditors appeared on the scene, with the 'result that it was agreed that his creditors would grant him an extension of four, eight, and twelve months upon he and his brother, F. M. Fox, executing their joint notes for the' sums due his several creditors, indorsed by J. E. Colbert. As all his creditors were not present and consenting to the arrangement, it was agreed that the written agreement hereinafter set out should be placed in the hands of A. D. Hawk, cashier of the Chickasaw National Bank, and, when the assent of the creditors to the extension had been obtained, and Mr. Hawk was advised of that fact, he was to have W. R. Fox and F. M. Fox execute notes in accordance with the agreement, and seild them to the creditors, and the deed of assignment was to be annulled, and the stock of goods returned to W. R. Fox. W. F. Miller, the representative of one of the creditors, was to see to obtaining the assent of the absent creditors to the arrangement. He procured the assent of all the creditors except two, touching which he wrote Mr. Hawk on the 28th. of August as follows:</p> <p>“St. Louis, August 28th, 1896.</p> <p>“Mr. A. D. Hawk, Cashier Chickasaw Nat’l Bank, Purcell, I. T.- — Dear Sir: Herewith please find inclosed notes properly m*ade out for the claims of the Raney-Alton Mercantile Co., Dowden-Williamson Grocer Co., Turner & Jay, Richards-Conover Hardware Co., Kingman-Moore Implement Co., and Barton Bros. This includes all of the claims or accounts against W. R. Fox, with the exception of 'a small claim at Chicago,' and one at Readsville, N. C. I will write to these parties to-day, and send them a copy of the agreement, and hope within a few days to receive a favorable reply from them. This, however, will not prevent the signing of the inclosed notes by W. It. Fox and F. M. Fox and J. E. Colbert, for, in tlie event that these parties at Reads-ville, N. C., and Chicago do not agree to the settlement, they could be paid off either by Fox or the creditors.”</p> <p>On tlie same day he wrote F. M. Fox as follows:</p> <p>“St. Louis, August 28th, 1896.</p> <p>“Mr. F. M. Fox, Attorney at Law, Purcell, I. T. — Dear Sir: I have just written to Mr. Hawk, and inclosed to him notes for the balance of the accounts, to be signed by yourself and W. R. Fox and J. E. Colbert. All of the parties have signed the agreement with the exception of the parties at •Readsville, N. C., and the one at Chicago, to whom I will write to-day, and will send a copy of the agreement for their signature. This, however, need not prevent the signing of the notes, for, in the event that they refuse to come into the agreement, these two small accounts could be paid off by you or the creditors, if it is found to be absolutely necessary to do so. I would like very much for you to sign these notes at your earliest convenience, so that Mr. Hawk can forward them to the parties to whom they are made payable. Yours, very truly, W. F. Miller.”</p> <p>On the receipt of these letters, and after Mr. Hawk had shown his letter from Mr. Miller to the two Foxes, they executed their notes to the creditors, including the note in suit, and delivered them to Mr. Hawk, who forwarded them to the creditors, and thereupon the deed of assignment was canceled, and the stock of goods returned to W. R. Fox, who sold them out, and, without paying 1ns creditors the proceeds, loft the country. The following is a copy of the written agreement referred to:</p> <p>“It is hereby agreed by and between Trounstine Bros. & Co., Tennant-Stribling Shoe Co., the Johnson & Larimer Dry-Goods Go., Southern Mfg. Co., and Tyler & Simpson, of the first part, and F. M. Fox and W. It. Fox, of the second part, that notes signed by parties of the second part, and payable to parties of the first part, of this date, are not to be considered as valid notes unless all of the creditors of W. It. Fox agree to grant said W. It. Fox an extension of four, eight, and twelve mouths in settlement of his indebtedness to them. When all creditors have so agreed, then the notes aforesaid are to be still further indorsed by J. E. Colbert. Pending the settlement said notes are to he deposited with A. D. Hawk, cashier of the Chickasaw national Bank. Tennent-Stribling Shoe Co., by F. M. Miller.</p> <p>“The Johnson Larimer Dry-Goods Co., by O. P. Taylor, Asst. See.</p> <p>“Trounstine Bros. & Co., per Calloway.</p> <p>“Tyler & Simpson, tier Calloway.</p> <p>“Southern Manfg. Co., per Humphrey.</p> <p>“F. M. Fox.</p> <p>“W. R. Fox.”</p> <p>This action was brought before a United States commissioner in the Indian Territory, who is invested with the jurisdiction of a justice of the peace, on the four-months note payable to the plaintiffs for $52.33. Tlie plaintiffs recovered judgment before the commissioner, from which judgment the defendants appealed to the United States court for the Southern district of tlie Indian Territory, where the plaintiffs had the judgment. Tlie defendants then appealed the case to the United States court of appeals for the Indian Territory, which affirmed the judgments of the lower courts. 58 S. W. 462. Thereupon the defendants brought the case into this court by writ of error. The defense set up in the answer is that at the time Mr. Hawk received and sent the Fox notes to the creditors all of Fox’s creditors had not assented to tlie extension. The specific allegation of the answer is: “Defendants allege that at the time said notes were so fraudulently and wrongfully delivered by said Hawk to plaintiffs and the other creditors of the said W. R. Fox as aforesaid there were divers and various other creditors of the said Fox who had not agreed to the extension of time as aforesaid, all of which was well known to the said Hawk.”</p>

<p>Life Insurance — Mutual Benefit Association — Attempted Reduction of . Amount of Policy.</p> <p>In an action on a life insurance certificate for $5,000 issued by a mutual benefit order; of which the insured bad been a member for 12 years before his death, the only matter of defense stated in. the affidavit of defense was that at a session of defendant, the supreme council of the order, held shortly before the death of the insured, a .by-law was adopted providing that $2,000 should be the highest amount paid on the death of any member on any benefit certificate theretofore or thereafter issued, and the affidavit alleged that “the deceased was represented, through his accredited representative and agents,” at such session, “and assented, through such representatives, his agents,” to the adoption of such by-law. Helé, that such affidavit was fatally defective, if intended to aver that deceased had actually agreed to he hound by the by-law, and that without such averment it stated no defense, because it was not competent for defendant alone to substitute for its agreement to pay $5,000 one to pay $2,000 only.</p>

<p>Bankruptcy — Right to Discharge — Fraudulent Keeping of Books by Partner.</p> <p>If in any case fraud can be imputed to an innocent partner on account of the fraud of' his co-partner or other agent, as respects the false or improper keeping of books of account, it can only be in cases where the fraudulent entries or omissions have reference to partnership transactions, so as to fall within the general scope of the partner’s or agent’s authority. The fraud of a partner in so keeping the firm books, of which he had sole charge, as to conceal withdrawals of money by himself from his partner as well as creditors cannot be imputed to the innocent partner, to defeat his right to a discharge in bankruptcy under Bankr. Act 1898, §’ 14b, cl. 2.</p>

<p>Bankruptcy- — Collateral Reference — Costs—Stenographer's Fees.</p> <p>Where a controversy between a trustee and a third person respecting the right to certain property was submitted to a referee, and the claimant was unsuccessful, he may properly be taxed with the costs of the reference, including a reasonable fee for the referee, a docket foe for the trustee’s attorney, and the fee of a stenographer employed on application of the trustee, under Bankr. Act 1898, § 38a, cl. 5, not to exceed, however, 10 cents per folio for reporting and transcribing his notes, in the absence of stipulation.</p>

<p>Chattel Mortgages — Withholding from Record — Ohto Statute.</p> <p>Under Rev. St. Ohio, § 4150, by which, as construed by the supreme court of the state, a chattel mortgage is absolutely void and inoperative as against creditors of the mortgagor until filed, but on sneh filing becomes valid and effective, tlie holder of such a mortgage, withheld from record by agreement for some time after its execution, is not estopped to enforce it after it is filed as against general creditors, Who became such in the meantime.</p>

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

<p>Costs — Cmrk’s Funs — Action in Forma Paupreis.</p> <p>Act July 20, 1892 (27 Slat. 252), permitting tlie bringing of actions in forma pauperis, docs not take away from the clerk, in actions brought thereunder, the right to charge and collect the same fees as in other causes, but provides only that ho shall not be entitled to demand their payment in advance or security therefor; and a libelant who brings a suit in admiralty thereunder, and recovers, but without costs, is not entitled to withdraw the money paid in satisfaction of the Judgment from the registry of the court without paying the clerk’s fees taxed against him.</p>

<p>1. Federal Courts — Rules of Df.cision — Following Decisions of Superior Court.</p> <p>An orderly administration of the law requires that the circuit courts should follow a decision of a circuit court of appeals of another circuit, in the absence of conflicting authority, and when the question is presented on precisely the same state of facts.</p> <p>3. Corporations — Liability of Stockholders — Suits by Receiver to Enforce.</p> <p>A special receiver appointed by a court of Minnesota in a suit in equity brought under the statutes of that state by creditors of an insolvent corporation to determine the individual liability of stockholders, and charged with the duty of enforcing such liability for the benefit of all the creditors, may maintain an action at law in a federal court in another state against a stockholder residing therein.1</p>

<p>Equity — Dismissal for Want of Indispensable Party — Time to Obtain Servicf..</p> <p>A bill will not be dismissed for want of an indispensable party, who is made a defendant, but has not been served, until complainant has been given a reasonable time to obtain service, and he will he allowed more than six months where such defendant resides outside of the state.</p>

This suit was brought to foreclose a trust deed upon certain real estate in the county of Oook, state of Illinois, executed on the lGth day of November, 1897, by the appellant, Ida O’Rourke, to Cornelius Flood, as trustee, and David J. Thompson, as successor in trust, to secure her promissory judgment note of that date for the sum of $3,500, payable to her own order, and by her indorsed, due five years after date, with interest semiannually, according to 10 coupon interest…

<p>Preliminary Injunction — Grounds.</p> <p>A preliminary injunction will not be granted where its denial will inyolve no risk of irreparable injury to complainant.</p>

<p>Guaranty — Construction ov Contract.</p> <p>A provision of a contract of guaranty, by which certain railroad companies agreed to make up to a stated sum any deficiency in tine net revenues of a bridge company “after payment for repairs, maintenance, and all the expenses connected therewith, including reasonable cost for operating the bridge and approaches thereto,” cannot be construed to cover the expenses of litigation between the parties over the contract itself, which are not taxable as costs.</p>

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

This is an action of assumpsit upon a policy of fire insurance issued by the Orient Insurance Company to Simeon E. Leonard, the plaintiff in error, upon a stock of seeds kept for sale in a six-story brick building, forty feet wide, fronting on Lake street, between Des Plaines and Union streets, and extending back about 170 feet to Pearl street on the east, in Chicago. The total insurance was $76,500; the total loss, $127,838.88. Suits are pending upon the other policies.

<p>On Motion by Plaintiff for Judgment.</p>

This suit was originally brought in the circuit court for Monroe county, Fla., and was removed by plaintiffs in error to the circuit court of the United States for the Southern district of Florida. It was an action of trespass on the case, brought to recover damages for injuries received by Eugene J. Buckley, defendant in error, while in the employ of the Union Bridge Company.

<p>1. 'Charities — Public Hospital — Relation to Patients.</p> <p>The fact that a public hospital, chartered as a charitable corporation, exacts or receives a pecuniary consideration from a patient, does not affect its character as a charitable institution, nor its rights or liabilities as such, in relation to such patient.</p> <p>Same — Liability to Patients — Negligence of Nurse,</p> <p>A patient- in a public hospital, chartered as a charitable corporation, although under private management, cannot recover from such eorporation for injuries resulting from the negligence of a nurse employed in its hospital, and in whose selection due care was used; there being an implied agreement arising from the acceptance by the patient of the corporation’s bounty that it shall not be liable for the acts of such servants in administering the charity.</p>

<p>Submitted on Exceptions to Ruling of Referee with Respect to Claim of E. K. Lee.</p>

<p>1. Bankruptcy — Discharge—Books op Account.</p> <p>That books of a bankrupt do not show his true financial condition, but were kept only for the transaction of business, is no bar to the bankrupt’s discharge, where they show no attempt to conceal his financial condition, and no intent to defraud.</p> <p>2. Samp. — Concealment op Assets.</p> <p>Report of referee, to whom a charge of concealment of assets by a bankrupt had been referred, will not be set aside unless it is made to appear that it is clearly erroneous.</p>

<p>Bankruptcy — Jurisdiction of Court — Right of Intervening Creditors to Maintain Petition.</p> <p>Certain creditors of a corporation filed a petition in bankruptcy against it, being sufficient in number, and setting up claims sufficient in amount, to warrant an adjudication. Subsequently other creditors intervened, and adopted the petition as their own; the first filing his petition in intervention within four months after the alleged act of bankruptcy. Afterwards some arrangement was made with the original petitioners, which induced them to refuse to prosecute further, and they moved its dismissal. Melé, that the court acquired jurisdiction under the original petition, which was sufficient on its face, whether or not the claims of the petitioners were in fact provable,' which jurisdiction was continued by the interventions; and that the interveners, being sufficient in number, and holding claims sufficient in amount, were entitled to maintain such petition as their own.</p>

<p>Bankruptcy — Discharge—Makins of False Oath.</p> <p>Where a voluntary bankrupt, prior to bis bankruptcy, transferred all of bis property to bis wife on a claim that be was indebted to her, but in fact to place it beyond the reach of a creditor whose claim is still unpaid, and the property so transferred and still held by the wife at the time of the filing of his petition- exceeded the amount which she had contributed .to the family estate, his failure to schedule his equitable interest therein, and his making oath that he had no property, was the making of a false oath, which defeats his right to a discharge.</p>

<p>Bankruptcy — Appeals—Who may Appeal.</p> <p>The court follows Ohatfield v. O’Dwyer, 101 Fed. 797, 42 C. O. A. 30, to the effect that Bankr. Act 1898, § 25a, does not authorize an appeal to the circuit court of appeals by one creditor from a judgment of a court of bankruptcy allowing a claim of another creditor, hut such an appeal can only be taken by the trustee.1</p>

<p>Trade-Names — Unfair Competition — Use of Name Denoting Superior Quality.</p> <p>Complainant for many years manufactured and sold glue of different grades under the general name' of “Le Page’s Glue,” but with further designations to, denote the grade or quality, the highest grade being designated as “Le Page’s Liquid Glue,” and the lowest as “Le Page’s Fish Head Glue.” Defendants purchased from complainant, in bulk, a quantity of the latter grade, which they put up in bottles with- distinctive labels correctly stating that it was manufactured by complainant, and bottled by defendants, but on which they printed the name “Le Page’s Liquid Glue,” and placed the same in the market. Held, that such use on an inferior grade of the trade-name, which had become associated by the public with complainant’s best grade, was fraudulent, and constituted unfair competition, which entitled complainant to an injunction.1</p>

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

<p>Patents — Construction op License — Time op Termination.</p> <p>A license agreement covered a patent for a combined trimming and overseaming device for use on sewing machines. Such patent was granted on division “a” of a divisional application filed June 5, 1879, division “b” of which, covering the specific' trimming device used in the combination, was still pending in the patent office. The agreement provided that* it should terminate with the life of the patent named therein, “or should any other patent or patents be obtained on a pending application * * * filed June 5, 1879, relating to or covering a similar subject-matter as said patent, * * * which application was made by said licensor, then with the life of such subsequent patent or patents having the longer duration, which when issued shall be considered to be covered by this agreement.” Held, that a patent subsequently issued on division “b” was clearly the one referred to in such provision, and was, moreover, one relating to a “similar' subject-matter,” and that the license agreement continued in force during the life of such patent.</p>

<p>In Equity. Suit for infringement of patent. Finding for defendants, without opinion filed. On petition for rehearing.</p>

<p>In Equity. Suit for infringement of patent. On demurrer to bill.</p>

<p>In Equity. Suit for infringement of patent. On exceptions to bill.</p>

<p>In Equity. Suit for infringement of patent. On demurrer to bill.</p>

<p>In Equity. Suit for infringement of patents. On demurrer to bill.</p>

<p>Patents — Suit for Infringement — Joinder of Defendants.</p> <p>A bill is maintainable against two or more defendants for conjoint infringement of a patent where it alleges that such defendants carried on a business and committed the infringements under an assumed name implying the existence of a corporation, but that there was in fact no such corporation.</p>

<p>Action at Law to Recover Payments under a Contract Assigning Certain Patents. On demurrer to complaint.</p>

<p>1. Marine Insurance — Contract—Modification by Course of Dealing.</p> <p>Libelant exported large quantities of dental goods of its manufacture, and for more than 30 years carried an open marine cargo policy, issued by respondent, renewed from time to time, without any change in its provisions. Such policy was not one covering all shipments made by libelant, nor requiring it to insure all shipments made by libelant, nor requiring it to insure all shipments thereunder, but contained the following provision: “No risk to attach to the policy until the amount and description of the same shall be approved and indorsed thereon by the company, and to be valued at the sum so indorsed.” It also provided that the premium should be agreed upon at the time of such indorsement. By a course of dealing between the parties extending over many years, and adopted for mutual convenience, owing to the large increase in' libelant’s business, no indorsements were made on the policy, but each risk was reported by libelant on a slip furnished by respondent, and they were entered by respondent each month in a pass book which' it also furnished. Such slips were filled out by libelant and sent by mail after it received the bills of lading, and were often not received by respondent until.-the shipments had been several days at sea, and sometimes not until after they had arrived at the port of destination, although it did not appear that such fact was known to respondent. During such time no risk so reported had ever been rejected on account of any objection thereto. Neither was. the premium agreed upon at the time of each shipment, .but respondent furnished libelant from time to time with a schedule of rates which governed as to future shipments. Held, that there was nothing in such course of dealing which abrogated the vital provision of the policy retained in eách renewal, requiring each risk to be approved before it should attach, or which bound respondent to approve a risk the report of which was not received until after it was known that the shipment had been lost, it not-appearing that it had ever done so previously; the fact that it had never rejected a risk being evidence merely that such risks had all been acceptable.</p> <p>2. Same — Acceptance of Risk.</p> <p>The fact that a clerk- in the office of respondent, whose duty it was as a matter of routine, had received' the slip sent by libelant reporting such risk, and had filled in the premium and cheeked the same for entry in the books, did not constitute an acceptance of such risk 'by respondent, where the clerk had no authority to accept or enter risks when any facts were known which rendered them unusual, and where prompt notice -was-.given to:libelant of its rejection.</p>

<p>In Admiralty. Suit for demurrage under charter. On exceptions to libel for want of jurisdiction.</p>

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

<p>1. Replevin — Right to Take Nonsuit.</p> <p>Uuder the statute of Florida, which makes the claim of the defendant in an action of replevin, where the plaintiff has obtained possession of the property, practically a cross action, it is not error to refuse to permit a plaintiff in such case to take a nonsuit.</p> <p>2. Federal Courts — Jurisdiction—How Shown</p> <p>An action will not be dismissed by a circuit court of appeals on the ground that the pleadings do not show the requisite diversity of citizenship to give the circuit court jurisdiction, on motion of the plaintiff, who brought the action in that court, where the requisite jurisdictional facts appear in the evidence embodied in his bill of exceptions.1</p>

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

<p>On Petition for Writ of Mandamus.</p> <p>For the better understanding of this ease, reference is made to the opinions of this court in the case of McGehee v. McCarley, as reported in 38 C. C. A. 629, 91 Fed. 462, and 103 Fed. 55. For 1he sake of greater accuracy, and at the risk of appearing to incumber our opinion overmuch by so extended a statement of the matter now before ns, we make the following large extracts from the printed record:</p> <p>“The United Slates of .America, to the Honorable John Bruce, United States Judge for the Northern District of Alabama, Greeting: Whereas, on the 20th day of April, 1001. in the matter of the petition of Milton Humes and Addison White, as sureties on the writ of error bond in the case of Gharles M. McGhee and Henry Fink, as receivers, against A. J. MeOarley, as administrator of the estate of Zuma Allred, deceased, the following order was made by the Honorable Don A. Pardee, United States circuit judge: "This petition may be filed, and thereupon let an order issue directing the Honorable John Bruce, district judge for the Northern district of Alabama, to show cause before the circuit court of appeals on Monday, 29th day of April, at 11. a. m., or as soon thereafter as counsel can be heard, why the writ of mandamus as herein prayed for should not be granted, and in the meantime the clerk of the circuit court for the Northern district of Alabama is directed to withhold execution against the petitioners in the case of MeCarley, administrator, against McGhee and Fink, receivers. April 20, 1901. Don A. Pardee, Circuit Judge,’ — you are therefore commanded that you be and appear before the circuit court of appeals on Monday, 29th day of April, 1901, at 31 a. m., or as soon thereafter as counsel may be heard, to show cause, if any there be, why the writ of mandamus as prayed for in said petition should not be granted. A copy of said petition is hereto annexed and made a part of this rule. Witness the Honorable Melville W. Fuller, chief justice of the United States, and the seal of our United States circuit court of appeals hereto affixed, at the city of .New Orleans, this April 20,1901. [Seal.] J. M. McKee, Clerk United States Circuit Court of Appeals, Fifth Circuit.”</p> <p>“Petition for Mandamus.</p> <p>“United States Circuit Court of Appeals for the Fifth Circuit.</p> <p>.“To the Honorable Judges of Said Court: Tour petitioners, Milton Humes and Addison White, sureties on the writ of error bond in the ease of Charles M. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, against A. J. McCarley, as administrator of the estate of Zuma Allred, deceased, respectfully represent that heretofore, to wit, on the 22d day of May, 1900, this honorable court affirmed the judgment of the United States circuit court in and for the Northern division of the Northern district of Alabama. That at the January term of said court, 1901, the said McCarley, as administrator, presented the mandate of this court in said cause, and asked for a summary judgment against the sureties on said writ of error bond, and thereupon, without hearing the sureties on the said bond, in defense of the motion for summary judgment, the court entered the same. During the term of the court at which said judgment was rendered Milton Humes and Addison White, sureties on the said bond, made a motion in the circuit court of the United States in and for the Northern division of the Northern district of Alabama, in said cause of A. J. McCarley, as administrator of the estate of Zuma Allred, deceased, versus McGhee and Fink, as receivers of the Memphis & Charleston Railroad Company (which said motion was regularly continued to the April term of said court), wherein they alleged, in substance, in said motion, that said bond was without consideration and void, because at the date of the rendition of the judgment in said circuit court of the United States aforesaid, against said receivers, they had been discharged from their receivership, and that the said bond was further void because no copy of the writ of error had been lodged in the clerk’s office, where the record remained, for the adverse party to said writ of error aforesaid. The record of the case of Charles M. McGhee and Henry Fink, as receivers, against said A. J. McCarley, as administrator of Zuma Allred, deceased, No. 763 on the docket of this court, is, as appears by the certificate of the court below, a full, true, and complete transcript of the record, and said record does not disclose that the copy of the writ of error was lodged in the court below for the adverse party. Th,e motion made by the said sureties in said writ of error bond, to vacate the judgment as against them, was overruled and disallowed at the April term of said court, 1901, and thereupon the said Milton Humes and Addison White, sureties as aforesaid, prepared a petition for a writ of error, assignments of error, writ of error and copy thereof, and citation, and a notification to Charles M. McGhee and Henry Fink, receivers, to come in and join in the prosecution of said writ, and, upon their failure to do so, said Honorable John Bruce was asked to enter an order severing said McGhee and Fink, receivers as aforesaid. These papers were presented to the Honorable John Bruce, judge of the district court in and for the Northern division of the Northern district of Alabama, on the 18th day of April, 1901. The said Honorable John Bruce declined and refused to allow the prosecution of the writ of error from the rendition of the judgment against said sureties on the said writ of error bond on the tilth day of January, 1901. Your petitioners further allege that said writ of error bond, upon which said judgment was rendered against them, did not operate as a supersedeas bond, because of the failure to lodge said copy of said writ of error in the said canse No. 7(>9 in the clerk’s office, where the record remained, for the adverse party. Tho premises considered, your petitioners pray that the Honorable John Bruce, judge as aforesaid, he made a party defendant to this petition, and that an alternative writ of mandamus be issued in this cause requiring the said Honorable John Bruce, judge of said circuit court, to show cause why ho should not he required to grant the writ of error; and, upon the return thereof to this court, that this court make an order commanding and directing said Honorable John Bruce, judge as aforesaid, to allow the said writ of error so presented to him by said Milton Humes and Addison White, and that in the meantime, and pending; the hearing of this petition, that said circuit court he required and directed to suspend the execution of said judgment against said Milton Humes and Addison White as sureties on the said bond. And petitioners pray for such other, further, and general relief as the facts and equities of the case may require. John II. Sheffey, Attorney for Petitioners.”</p> <p>“Return of Respondent to the Alternative Writ of Mandamus.</p> <p>“United States Circuit Court of Appeals for the Fifth Circuit, at New Orleans, I.a. Milton Humes and Addison White, Petitioners, vs. John Bruce, Judge of United States Circuit and District Courts for Northern District of Alabama, Respondent.</p> <p>“To the Honorable Circuit Court of Appeals for the Fifth Circuit of the United States: The respondent, the said John Bruce, judge of the United States circuit and district courts for the Northern district of Alabama, appearing by counsel before this honorable court, hereby makes liis return, and for cause why the peremptory writ of mandamus, as prayed for in the petition of said Milton Humes and Addison White, should not bo issued, respectfully shows as follows:</p> <p>“That the mandate of this honorable circuit court of appeals in the case of Charles M. McGhee and Henry Fink, receivers, plaintiffs in error, against A. J. McCarley, administrator, defendant in error, reciting- the judgment of this court of May 22, 1900, affirming in all things the judgment previously rendered in said case at the April term, .1898, of the United States circuit court for tho Northern district of Alabama, at Huntsville, at which term this respondent presided,' was presented in open court and filed January 18, 1901, by counsel for said McCarley. administrator, at the adjourned January term, 1901, of said United States circuit court for the Northern district of Alabama, at Huntsville, which term was being held by Hon. Charles. Swayne, assigned to that duty because of the physical disability of respondent. Sabi mandate commanded the judges holding said United States circuit court for the Northern district of Alabama to have such further proceedings in said case as according to right and justice and the laws of the United States ought to he had. tho writ of error which had been sued out in said case by Charlo» M. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, notwithstanding. On tho same day, January 18, 1001, there was also filed by counsel for said McCarley, administrator, an application for an order carrying into effect and executing said mandate against the defendants, McGhee and Fink, as receivers, and Milton Humes and Addison Wiiite, the sureties on their writ of error bond, which application was in words and figures as follows:</p> <p>“ * * Comes the plaintiff, A. J1. McCarley, as tho administrator of Zuma Allred, deceased, and shows to the court, that Henry Mnk and Charles M. McGhee, as receivers of the Memphis & Charleston Railroad Company, the defendants in tho above-styled case, prayed and obtained a writ of error from the judgment and proceedings had in this court, touching- said case, to the circuit court of appeals for the Fifth circuit of the United States, all of which fully appears from the records of this court; that the said defendants as principals, together with Milton Humes and Addison While as sureties, did on the 10th day of August, 1808, execute a writ of error bond, in manner and form as required by law in such cases, in the sum of two thousand and eight hundred dollars, payable to the plaintiff, A. J. McCarley, as administrator of the estate of Zuma Allred, deceased; that said bond, together with the sureties thereto, was approved by Honorable John Bruce, judge of the said court. Said bond is here referred to and made a part of this application. Plaintiff further shows unto this court that said writ of error in the above-styled case has been duly considered, passed upon, and in all things determined and affirmed by the honorable circuit court of appeals for the Fifth circuit of the United States, as is shown by the mandate of said circuit court of appeals which has been filed in this court on this the 18th day of January, 1901, and is here now presented to this court as a part of this application. Plaintiff prays that, in accordance with the judgment and mandate of said circuit court of appeals, this court order an execution, in manner and form as required by law, to issue against the property, goods, and effects of said defendants, and Milton Humes and Addison White," their sureties on said writ of error bond, for the amount of the said judgment rendered in this court on the 13th day of April, 1898, to wit, two thousand six hundred and twenty-five dollars, with interest from said date at eight per cent, per annum, together with the costs of this court and the costs of the circuit court of appeals, and also all of the damages allowed upon said judgment rendered in this court, under the laws of the state of Alabama, to wit, ten per cent, on the amount of said judgment. And that notice of this application be given to said defendants, and Milton Humes and Addison White, sureties on said writ of error bond, to show cause, if any they have, why the prayer of this application should not be granted.</p> <p>“ ‘Henry K. White, Attorney for Plaintiff.’</p> <p>“ T have this day, January 18, 1901, served copies of this application upon Humes, Sheffey & Speake, the attorneys of record for Charles M. McGhee and Henry Fink, as the receivers of the Memphis & Charleston Railroad Company, the defendants, and upon Milton Humes and Addison White, the sureties on their writ of error bond, in person, and have given them notice that this application will be called up for hearing Saturday, January 19, 1901, at 10 o’clock a. m. Witness my hand this January 18, 1901.</p> <p>“ ‘Henry K. White.’</p> <p>“The averment of petitioners in their petition for a mandamus that summary judgment was entered against them without hearing them in defense is not strictly true, because counsel for said McCarley, administrator, did call up said application for hearing Saturday, January 19, 1901. at 10 o’clock a. m.; and at said hour Milton Humes and Addison White appeared in open court in person and by counsel, and resisted said application for an order in execution- of the mandate upon two grounds, which were orally suggested to the court, viz.: (1) That the judgment from which the writ of error had been sued out to this honorable court of airpeals was null and void, because said McGhee and Fink had been discharged as such receivers at the time such judgment was rendered; (2) that the writ of error bond had not operated as a supersedeas. Oral argument in open court was made by Milton Humes in resistance to the application for the execution of said mandate, but, after hearing some argument both for and against said application, the Honorable Charles Swayne made, January 19, 1901, in open court, an order upon said mandate in words and figures as follows:</p> <p>“ * * in this cause, it appearing to the court, upon an inspection of the mandate from the United States circuit court of appeals for the Fifth circuit, which mandate has been filed, by the clerk of this court on the 18th day of January, 1901, that the judgment of this court has been in all things sustained and affirmed upon a writ of error to said United States circuit court of appeals, wherein Charles M. McGhee and Henry, Fink, as receivers of said Memphis & Charleston Railroad Company, were the plaintiffs in error; and it further appearing to the court, from an inspection of said mandate, that sfiid plaintiffs in error, and Milton Humes and Addison White, the sureties on'their writ of error bond, have been condemned to pay the costs of this cause in said circuit court of appeals, for which execution may be issued out of this court: Now, therefore, upon inspection of ‘ said mandate, and upon application which has boon filed January 18, 1901, by the plaintiff, A.. J. Mc-Carley, as such administrator as aforesaid, for an order for execution according to said mandate against the defendants and the sureties on their writ of error bond, copies of which application have been duly served upon the defendants and said sureties, and upon the motion of the attorney for said plaintiff, it is considered, ordered, and adjudged by this court that said mandate, together with this order, be spread upon the minutes of this court, and be made a part of the record in this cause; and it is further considered, ordered, and adjudged that the plaintiff, A. J. AlcOarley, as administrator of Zuma Allred, deceased, have and recover of the defendants, Charles 11. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, and Milton Humes and Addison White, the sureties on their writ of error bond, the sum of twenty-eight hundred dollars, being the amount ol‘ the penalty named In said writ of error bond, and covering the judgment rendered by this court on the 13th day of April, 1898, for two thousand six hundred and twenty-five dollars, and one hundred and seventy-five dollars interest thereon; the excess of interest and costs upon said judgment against said receivers not to be satisfied by the collection of the execution which is hereby ordered .against the sureties/on said writ of error bond. The clerk will suspend the issuance of execution for thirty days from the date of this order. Done in open court this 19th day of January, 1901. Charles Swayne, Judge.’</p> <p>“That afterwards, within thirty days'from January 19, 1901, and while the same term of court was yet open, but after the Honorable Charles Swayne had finished tlie business of the court and gone home, said Milton Humes and Addison White, as sureties upon the writ of error bond of AicGliee and Fink, as receivers, filed a written motion in the office of the clerk of the United States circuit court at Huntsville to review, set aside, and annul Judge Swayne’s order of January IS), 1901, directing execution against them as such sureties, upon the same grounds which they had orally suggested to Judge Swayne in resistance to Hie application for said order, viz.: (1) That the original judgment from which the writ of error had been sued out was void because tlie receivers had been discharged when that judgment was rendered; (2) that the writ of error bond had not operated as a supersedeas, because no copy of the writ of error had been lodged for tlie adverse party In the office of the clerk within sixty days after the judgment appealed from. This written motion was presented ex parte by the movants, within said thirty days, to respondent at chambers in Montgomery, Alabama, and he there and then made an order thereon, continuing- said motion for hearing- at the April term, 1901, of the United States circuit court at Huntsville, and further suspending execution of said mandate until this motion should be heard. That respondent was unable, by reason of illness, to hold the April term of the United States circuit court at Huntsville, and the lionorablc Harry T. Toulmin was assigned to hold said court, and said motion of Mili oil Humes and Addison White was then and there heard by him upon lengthy oral arguments on both sidos, and (labórate briefs subsequently furnished on both sides, and was taken under advisement l»y him from the day of the oral argument, Ajiril 5, until April 10, 1901, when he overruled said motion upon both the grounds contended for, and filed a written Opinion thereon, a copy of which opinion is here presented to this court, and referred io, and asked to be taken and considered as a part of Uliu return, to which it is attached as an exhibit. That afterwards, on the IStli day of April, 1901, said Milton Humes and Addison White, by their counsel, presented to respondent at chambers in Montgomery, Alabama, their petition for a writ of error to review the order of January 19, 190], made by the Honorable Charles Swayne In open court, executing- and carrying into effect the mandate of this honorable court, by again carrying up the record in the case of McCarley, administrator, against McGhee and Fink, as receivers, to this honorable circuit court of appeals. The allowance of fsaid petition for a writ of error was resisted by counsel for McCarley, administrator, and the right to writ of error or appeal from such order was argued orally by counsel on both sides, and legal decisions upon said question by the United States supreme court and by the circuit courts of appeals were cited and quoted against the allowance of the writ of error; and, after hearing said arguments upon the question, respondent, in the exercise of legal judgment and judicial discretion, decided that appeal or writ of error did not lie from the order of January 19, 1901, made by Honorable Charles Swayne, holding the United States circuit court at Huntsville, in execution of the mandate of this court, and respondent thereupon refused to allow said writ of error.</p> <p>“Wherefore respondent says, firstly, that petitioners have no right to the writ of mandamus, because the facts here set forth show that no appeal or writ of error lies, as a matter of legal right, from the judgment or order of Judge Swayne of January 19, 1901, simply executing and carrying into effect the mandate of this appellate court. And wherefore respondent says, secondly, that petitioners have no right to the' writ of mandamus, because, even if the facts here set forth fail to show that appeal or writ of error does not lie as a matter of legal right from such judgment or order of January 19, 1901, executing the mandate of this appellate court, said facts absolutely show that respondent, in refusing to allow said writ of error, acted in the exercise of his judicial discretion, and no writ of error can be issued to control such discretion. And respondent further says, thirdly, that no bill of exceptions to the rulings and judgment of the Honorable Charles Swayne in making the order of January 19, 1901, in execution of the mandate of this court, was ever tendered by petitioners, Humes and White, and it is now too late for any bill of exceptions to be signed: and the printed transcript of the record in the case of McGhee and Fink, as receivers, plaintiffs in error, against McCarley, as administrator, defendant in error, No.. 763 in this court, and the mandate of this court and application which were filed in the United States circuit court at Huntsville, January 18, 1901, and the order made thereon by the Honorable Charles Swayne, January 19, 1901, which are each set out in this return, constitute the entire record which could be presented to and inspected by this court upon the writ of error now sought by petitioners; and respondent submits that there is no error in such record, and a writ of error would therefore be a vain thing, useless and unavailing to petitioners, wherefore the peremptory writ of mandamus to respondent to allow such writ of error should not be granted. And respondent further says, fourthly, that the petitioners, Milton Humes and Addison White, have no right to the writ of mandamus in this matter, because, if they are in reality injured by Judge Swayne’s order of January 19, 1901; executing the mandate of this court, and are thereby deprived of any legal or equitable rights, they have (1) an adequate remedy to correct and repair such injury by a bill in the nature of a bill of review of such order or judgment, which petitioners have the right to sue out within six months from the entry of such judgment or order, January 19, 1901, the same time within which they could sue out a writ of error, if it were allowable, such bill being akin in its purposes to writ of error; by such bill they could establish and enforce their right, if any‘they have, to recover back from said McCarley any money which they might be compelled to pay under said execution, and which might be received by McCarley as such administrator; and they have (2) an adequate remedy, by a bill for subrogation, to be subrogated to all the securities, liens, rights, and remedies which the creditor, McCarley, as administrator, has or could have to enforce the payment of his judgment against McGhee and Fink, as receivers; and they have (3) an adequate remedy by motion for summary judgment against their principals in said writ of error bond, under sections 3880 and 3881 of the Code of Alabama; and they have (4) an adequate remedy by petition in the equity cause of Farmers’ Loan & Trust Company v. Memphis & Charleston Railroad Company, in the circuit court of the United States for the Northern district of Alabama, at Huntsville, in which cause Charles M. McGhee and Henry Fink were appointed receivers of said railroad company, and in which cause all the properties of said railroad company were sold to the Southern Railway Company to pay the first mortgage trust bonds of said Memphis & Charleston Railroad Company. Respondent states to this court that said equity cause is still kept opien upon the docket of the United States circuit court at Huntsville, which court still retains jurisdiction to retake and seize any property of the-Southern Railway Company purchased by it at said judicial sale of the Memphis & Charleston Railroad Company's property, for the purpose of enforcing any liabilities which were incurred by said receivers before said judicial sale; and that the liability of McGhee and Fink, as receivers in the case of McCarley as administrator, was incurred by them before their discharge as receivers, and before said judicial sale, and suit was brought by McCarley, as administrator, to enforce said liability long before the discharge of said receivers, which discharge war, decreed February 28, 1898, and that the judgment was obtained by McCarley, as administrator, April 13, 1898, long' before the expiration of the six month,s from the final decree discharging said receivers, within which it was provided that claims against said receivers should he filed and proved before llie special master appointed in said equity cause, for the purpose of taking proof of claims against said receivers. These four, as stated, are ihe canses and reasons which respondent shows to this honorable court why the peremptory writ of mandamus should not issue, commanding him to allow the writ of error petitioned for by said Milton Humes and Addison White; but respondent respectfully defers and submits to the judgment of this honorable court, and will make any order directed by this court in the premises. Respondent; now, in closing his return, prays that only such orders as are lawful and right may be made in the premises by this honorable circuit court of appeals, and that lie may bo hence dismissed, with his reasonable costs in this behalf most wrongfully sustained, including, besides the items of court costs, an allowance against the petitioners, Milton Humes and Addison White, for respondent’s counsel fees for the preparation, presentation, and argument of his return to the alternative writ of mandamus in this case, in the amount of 8200.00, which this respondent says is a fair, reasonable, and just compensation to his counsel for snch services. John Bruce,</p> <p>“Judge of TI. S. Circuit and District Courts for Northern Dist. of Alabama,</p> <p>“By H. IC White, His Attorney.”</p> <p>“Exhibit A.</p> <p>“Circuit Court of the United States l'or the Northern Division of the Northern District of Alabama. A. J. McCarley, Administrator, etc., vs. Ohas. M. McGhee and Henry Fink, Receivers of the M. & O. R. R. Co-.</p> <p>“Toulmin, District Judge. This is a motion by the sureties on the writ of error bond in the above-entitled cause to set aside and vacate the judgment rendered against them at a former term of the court. This motion was made at that term, and was duly continued by the court. The motion is based on the contentions (1) that the original judgment from which the writ of error was taken is null and void; (2) that the bond known as the ‘Writ: of Error Bond’ did not operate as a supersedeas. It is contended by the movants (hat the judgment against said receivers was null and void, because rendered against them after they had been discharged; and that no ‘copy’ of tlie writ, of error was lodged with the clerk of the court, and for that reason the writ of error did not operate as a supersedeas.</p> <p>“It appears from the record evidence that McGhee and Fink were appointed receivers in the equity cause of Samuel Thomas versus M. & O. R. R. Co., and subsequently in the cause of Farmers’ Loan & Trust Company versus Same, and that they were sued as receivers in Thomas versus M. & O. R. R. Co. It further appears from the record that the said receivers had not been discharged as such in the Thomas Case at the time the judgment of McCauley, administrator, against them was rendered by the circuit court, blit that they had been discharged from further administration of the property in their hands at the time said judgment was affirmed by the circuit court of appeals. At the time this motion was argued my opinion was that the judgment complained of was valid, and I have since seen no reason to chango my opinion. The second proposition contended for by the movants was not so clear, and the question was taken under consideration, and lias been given sncli examination as my timo would allow. The judiciary act of 1789-provided that a writ of error ‘shall be a supersedeas and stay execution in cases only where the writ is served, by a copy thereof being lodged for the adverse party, in the clerk's office, where the record remains, within ten days after rendering the judgment complained of.’ Several decisions have been rendered by the supreme court under this act, wherein it was held ‘that the effect of the writ as a supersedeas depended upon compliance with the conditions imposed by the act, and that, under the act, lodging of the copy of the wi’it for the adverse party in the clerk’s office was indispensable.’ These decisions have been cited by the movants in support of their contention. At common law a writ of error was a supersedeas by implication (2 Ene. PI. & Prae. 1212), but since the act referred to a service of the writ is essential to its operation as a supersedeas. The act of 1789 provided that it shall be a supersedeas in cases only where the writ is served by a copy thereof being lodged for the adverse party in the clerk’s office. By act of 1872 (17 Stat. 198, § 11) it was provided that any party desiring to have any judgment reviewed on writ of error, and to stay proceedings thereon during the pendency of such writ of error, may give the security required by law therefor within sixty days after the rendition of the judgment. In Telegraph Co. v. Eyser. 19 Wall. 419, 22 L. Ed. 43, the supreme court held, in reference to this statute, ‘that where an appeal was taken and the requisite security given within sixty days, a supersedeas follows as a matter of right.’ In the opinion the court said: ‘It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment. It is not said.when the writ shall be served. The giving of the bond alone is made the condition of the stay. The section is silent as to the writ. The execution, approval, and filing of the.bond is substantial. The filing of the writ is matter of form.’ In this condition of the law the Revised Statutes were adopted, section 1007 of which provides that: ‘In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk’s 'office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay inrocess on the judgment, he may, having served his writ of error as aforesaid., give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, execution shall not be issued until the expiration of the''said term of sixty (ten days) days.’ The supreme court in Kitchen v. Randolph, 93 U. S. 86, 23 L. Ed. 811, said: ‘The revised section is not silent as' to the writ, and it is said when it must be served. If the supersedeas is asked for when the writ is obtained, the writ must be sued out and served within sixty days, and the requisite bond executed when the citation is signed. The policy of the old law is- thus restored, the only modification being in the extension of the time allowed for action. Sixty days are given instead of ten.’ The old law in terms was not restored, but the policy of the old law was restored. That policy was that ,the defendant in error must have notice of the writ having been sued out. The policy of the old law requiring service of the writ is restored. Formerly service was to be effected within ten days. This is modified, and sixty days are now given. It will be observed that section 1007 of the Revised Statutes does not provide that a supersedeas shall be obtained in eases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk’s office, as was provided by the act of 1789, but the language of the revised section is, ‘The defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk’s .office.’ He may serve the writ in that way. It is permissible for him to do so. But it is not provided in terms, and I think clearly not intended to mean, that the supersedeas may be obtained only where the writ of error is served by a copy thereof being lodged in the clerk’s office. If such was the intention of the lawmakers, why so materially change the language used in the act of 1789 :to that fóund in section 1007, Revised Statutes ? The court in Kitchen v. Randolph, supra, says that, ‘under the law as it now stands, the service of a writ of error is an indispensable prerequisite to a supersedeas,’ not that the service of the writ in a particular manner is ‘an indispensable prerequisite.’ The service of the writ of error is substantial. The filing of it in the clerk’s office is matter of form. We know, as a matter of observation ímd practico, that tlio service is sometimes effected by personally serving,the writ on tlie adverso party, as is ordinarily tlie ease in the service of any process, and that it is sometimes effected by acceptance or acknowledgment of service by the counsel for the defendant in error. U. S. Nat. Bank v. First Nat. Bank, 24 C. G. A. G03, 79 Fed. 290. It does not appear whether the writ of error in this case was personally served, or that acceptance of service was had; but it does appear from the record that it was filed with tlie clerk of the court. I know of no statute and of no rule of court that requires the writ of error to be filed with the clerk. We find it filed with the clerk in this case, and we may well presume that it was so filed for the purpose of effecting service on the defendant in error. It does not appear whether it was a copy of the writ of error or not. It, however, served the purpose of a copy. There is no special yirtue in a copy of tlie writ. If tlie writ may be served by lodging a copy thereof with the clerk, then surely it may be served by lodging the original writ itself. The service is the substantial act required to be done. The manner or mode of service is a matter of form.”</p>

Petition for Mandamus. The return on the alternative writ is substantially as follows: “In answer to the alternative writ, comes Charles Swayne, the respondent in the above-styled cause, and says that he is, and was on the 3d day of May, 1899, judge of the United States circuit court for the Northern district of Florida, and that on that date he entered a final decree as such judge in the case of Herbert U. Anderson against the petitioners, Henry H. Graham, Mabel Graham,…

<p>1. Libel — Answer—Mitigation of Damages.</p> <p>It is no ground, of demurrer to an answer in an action for libel that defendant pleads Laws N. J. 1898, c. 204, providing that failure to request retraction of libel shall preclude recovery beyond actual damages, unless malice in fact is proven; such statute being pleaded in mitigation of any damages to which defendant might otherwise be entitled.</p> <p>2. Summons — Service—Pleading.</p> <p>Where a motion to set aside summons and complaint, on the ground .that service on the treasurer of a nonresident corporation was not a service on the defendant, has been overruled, the issue cannot be again raised by answer.</p>

In. Error to the Circuit Court of the United States for the Northern District of California. Upon the trial of this case the court found, among other tilings: That on December 27. 1898, and for some time prior thereto, one Dee B. Minlder was in the employ of the defendant, as an operator, at its office in the city and county of San Francisco, and as such it was the duty and within the scope of his employment to send messages from the office of the company at San Francisco.

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

<p>1. Writs of Error — Appeal.</p> <p>A writ of error is applicable alone to suits at law, and an appeal to decrees in equity or admiralty, and the one may not be substituted for tbe other.</p> <p>2. Same — Approval of Bond.</p> <p>Tbe fact that tbe judge of tbe trial court approved the bond on a writ of error does not operate as a writ of error, since neither tbe judge nor the court below could issue such writ.</p>

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

<p>L Contracts — Construction—Entire Contract.</p> <p>A contract was made for the salo of a large quantity of logs to be delivered in monthly installments during a period of eight years, payments (o be made also in ins I,ailments at times having relation to the deliveries. It contained stipulations as to such payments, and guaranties as to tiie average size of the logs to he delivered in each installment. Held, that it was an entire contract, and not a number of separate and independent agreements for the sale of the quantity to be delivered and paid for each month, although there might be breaches of the minor stipulations and warranties with reference thereto which would warrant suits without a termination of the contract.</p> <p>3. Judgments — Matters Concluded — Action for Breach of Indivisible Contract.</p> <p>The seller declared the contract terminated for alleged breaches by the purchaser, and brought suit for general and special damages, the latter covering payments due for installments of logs delivered. By way of set-off and recoupment against this demand, the purchaser pleaded breadles of the warranty as to the size of the logs delivered during the months for which payment had not been made. Held, that the judgment in such action was conclusive as to all claims.or demands of either party against the other growing out of the entire contract, and was a bar to a subsequent suit brought by the purchaser to recover for other breaches of the same warranty in relation to deliveries made in previous months.</p>

This action was brought by P. M. Covey, a citizen of Texas, against the Southern Pacific Company, a corporation chartered under the laws of Kentucky. The plaintiff was injured while in the employ of the defendant as a brakeman. The accident occurred in the yard of the defendant at Lords-burg, N. M. The plaintiff, while in the performance of his duty, was riding on a ladder on the side of a freight car, and was knocked off by a car standing on an adjoining track.

<p>1. National Banks — President’s Power to Procure Discounts.</p> <p>The president of a national bank, wlio has the actual management of its operations, is authorized to procure the discount of its paper.</p> <p>2. National Banks — Power to Contract Orally,</p> <p>A national bank may make a binding oral agreement to repay money it borrows, and to pay notes it procures to be discounted.</p> <p>3. Illegal Contract Not Enforceable.</p> <p>An action cannot be maintained on a contract that is illegal or against public policy, where both parties are equally culpable.</p> <p>4. Contract Enforceable Though Aiding Violator of Law.</p> <p>A contract in whose consideration and performance nothing illegal or against public policy inheres may be enforced although it may incidentally aid one in evading or violating a law.</p> <p>5. Avoidance of Contract Not Penalty for Violation of a Statute unless Prescribed Therein.</p> <p>Where a statute commands certain parties to do, or prohibits them from doing, certain acts, and prescribes the penalties for their violation of its commands, courts may not inflict other penalties for its violation upon other parties not named in the law by the avoidance of their contracts.</p> <p>6. - Action on Contract Executed by Plaintiff — Intention of Defendant to Violate Law No Defense.</p> <p>One who has received the benefits of the performance by the plaintiff of a contract which was neither malum in se nor malum prohibitum cannot successfully defend an action for the payment of his indebtedness arising therefrom on the ground that he intended to do some illegal act, which was neither a part of the consideration or of the performance of the agreement.</p> <p>Caldwell, Circuit Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the Circuit Court of the United States for t,he District of Utah.</p>

<p>1. Master and Servant — Dangerous Implements — Assumed Risk.</p> <p>An intelligent man, with full knowledge of the character and quality of an implement furnished him for use, and all of the facts and physical laws which render its use dangerous, after having voluntarily accepted employment in a hazardous business, involving the use of such implements, cannot be heard to say that he did not know it was dangerous, but assumes the risk of injury from its use, as a hazard of the employment.</p> <p>2. Same.</p> <p>Plaintiff,. who was employed in defendant’s mine, and engaged in blasting rock by the use of a machine drill and dynamite, was injured by the premature explosion of a charge which he was tamping into a hole drilled for the purpose. The tamping bar furnished by defendants and used by him consisted of a piece of iron gas pipe, with the end plugged with wood or clay. . Such tools were largely used in other mines, as were also bars made of wood, and some of solid iron. There was some evidence tending to show that the wooden bars were the least dangerous. Plaintiff was 24 years old, intelligent and well educated, and with a considerable experience in the work, having been employed in the same work in different mines for more than two years, and in defendant’s mine for three months, during all of which time he had used the same kind of bar without objection- and without accident. He knew the properties of dynamite, and that it would explode by concussion, and was as well qualified as defendants to determine whether the bars in use were more dangerous than others used in other mines. Held, that he assumed the risk incident to the use of the kind of bar furnished him.</p> <p>3. Same — Duty of Master to Instruct Servant.</p> <p>No duty rests upon a master to instruct a servant as to the probable dangers of the employment, where he is mature, intelligent, and experienced in the work, and the master has no notice or reason to believe that he is not fully competent and acquainted with such dangers.</p> <p>Caldwell, Circuit Judge, dissenting.</p>

<p>Guaranty — Liability.</p> <p>A person guarantied the payment of all goods purchased by a certain firm for a certain amount The following month the firm dissolved, without notice to the guarantor or to the party whose claim was guarantied, and thereafter the continuing partner purchased goods in the name of the former firm, and bills were rendered to it. UeU, that the firm was not dissolved as regards the vendor, and the guarantor cannot escape liability on his contract by pleading a secret understanding between the individual partners, by which all liability was transferred to the one partner continuing in the business.</p>

<p>In Bankruptcy. On motion to confirm report of the referee, to whom the petition was referred, recommending an adjudication.</p>

<p>In Bankruptcy.</p>

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

<p>Patents — Agreement for License — Operation and Effect.</p> <p>Evidence considered in relation to the signing of a memorandum reciting the terms on which complainant was to grant defendant a license to sell a patented article, and held to show that such memorandum was not intended by the parties to operate as a license in itself, and was not effective as such, but was valid as an agreement which entitled defendant to obtain a license on the terms therein stated, and on his compliance with the further oral agreement of the parties. *</p>

<p>In Admiralty. Libel against tug to recover for injury to tows.</p>

<p>Appeals from the District Court of the United States for the Eastérn District of Louisiana.</p>

<p>Circuit Court of Appeals — Jurisdiction—Question of J urisdiction of Circuit Court.</p> <p>Where a circuit court dismisses a case on the ground that it has no jurisdiction, leaving- pending motions undetermined, the only issue reviewable is that of jurisdiction, which must be taken to the sui>reine court, and an appeal will not lie to the circuit court of appeals.</p>

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

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

<p>'Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.</p> <p>As a plea in bar to the complaint of plaintiff, the defendant says: “That at a term of the United States circuit court for the district of Idaho, Northern division, which was held in the year 1895, the predecessors in interest, to wit, Royal J. Rutter and F. W. Bradley, under whom the above-named plaintiff claims in the above-entitled action, exhibited their bill of complaint in this honorable court against this defendant, claiming to be the owners of the Kirby fraction lode mining claim, the same property mentioned and describes! in the plaintiff’s bill of complaint in this action, and alleging that this defendant claimed an estate or interest therein adverse to the said Royal J. Rutter and F. W. Bradley, and to their title' to the said Kirby fraction lode mining claim; and that this defendant had applied for a United States patent upon the Shoshone lode mining claim, which overlapped and conflicted with the said Kirby fraction lode mining claim, and that the said Royal J. Rutter and F. W. Bradley had filed an adverse in the United States land office against the said application for patent so made by this defendant as aforesaid, and that the said aforementioned suit was brought by the said Royal J. Rutter and F. W. Bradley against this defendant in support of said adverse claim. This defendant thereupon filed its answer, denying that the said Royal J. Rutter and F. W. Bradley were the owners of the Kirby fraction lode mining claim so claimed by them as aforesaid, or that the said Kirby, fraction lode mining claim had any legal existence, or was a valid lode mining claim, and alleging that • this defendant, the Shoshone Mining Company, was the owner of the land and premises then claimed by the said Royal J. Rutter and F. W. Bradley as the Kirby fraction lode mining claim, and that the said land and premises were a part of the said Shoshone mining claim, the property of this defendant. To this answer the said Rutter and Bradley filed their replication, and the cause was at issue in the aforesaid court. That, prior to the filing of the said answer by this defendant, the defendant had filed a demurrer to the bill of complaint so filed by the said Rutter and Bradley as aforesaid, alleging, among other grounds of demurrer, that it did not appear from the said bill of complaint that the cause was one of which the said court had jurisdiction, which said demurrer was overruled by the said court, and proper bill of exceptions to the ruling of the court was settled. That thereupon the cause proceeded to trial upon the issues made by the complaint, answer, and replication aforesaid, in which said suit a final judgment had been entered in favor of this defendant, and against the said Royal J. Rutter and F. W. Bradley, dismissing said action, because the said circuit court had no jurisdiction thereof. That said judgment is final, and no appeal may be had therefrom. That hy virtue of the law no other suit may he maintained against this defendant by or on behalf of any person claiming under ilu* title of the Kirby fraction lode mining claim. That tlie said final judgment: so entered as aforesaid is a final determination, and conclusive of. the right to tlie land and premises described in the complaint in this action as the Kirby fraction lode mining claim, as between the plaintiff in this action and this defendant. * * * This defendant further says that at a term of the district court of tlie First judicial district of the state of Idaho, in and for Shoshone county, which was held in tlie year 1800, the said present, defendant commenced a suit hy filing a complaint in tlie said court against Royal J. Rutter and F. W. Bradley, the predecessors in interest as tlie owners or claimants of the Kirby fraction lode mining claim, mentioned and described in tlie complaint in this action, to which complaint tlie said Royal ,T. Rutter and F. W. Bradley filed their answer, and issue was joined hy said complaint and answer between this defendant and (lie said Royal ,T. Rutter and F. W. Bradley. That said cause was removed hy tlie said defendants. Rutter and Bradley, to the United States circuit court for the district of Idaho, Northern division, on tlie grounds that the said cause was one of which the said circuit, court had jurisdiction. That tlie said bond proceedings had for that purpose has been remanded by tlie said United States circuit court to tlie said district court of the First judicial district of the state of Idaho, in and for Shoshone county, and is now pending and undetermined therein. That said defendant claimed the land and premises in said last-mentioned action as a part of the Ibex lode mining claim, of which this defendant is, and at all times was, the owner. That the said Royal J. Rutter a'nd if. W. Bradley claimed that portion of tlie Kirby fraction lode mining claim which conflicted with the said Ibex lode mining claim as the Kirby fraction lode mining claim. That the conflict area between the said Kirby fraction lode claim and the Ibex lode mining claims is described hy metes and hounds as follows: * * *. That: both tlie said Shoshone lode mining claim and the ibex lode mining claim are owned hy this defendant, tlie Shoshone mining company. That the said last-named cause is now pending and undetermined, and is of record in the said district court of the First judicial •district of the state of Idaho in and for Shoshone county, — all of which several matters and things this defendant doth aver, and pleads tlie said former hill, demurrer, answer, replication, judgment, and several proceedings in tlie first of tlie above mentioned and set forth actions in bar to the said plaintiff’s present bill, and pleads the said former complaint, answer, and several proceedings in tlie said second above mentioned and described actions in bar to tlie said plaintiff's present bill, and demands judgment of this honorable court whether it shall he put to make any further or other answer thereto, and prays to be hence dismissed, with its costs and charges in tliis behalf sustained.”</p>

<p>Corporate Charter — Powers.</p> <p>Where a corporation is authorized to publish a journal devoted to the interest oí the jewelry trade, and generally to do any bnsiness connected with such purpose, a publication oí a directory oí the jewelry trade is within the powers oí the corporation.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>The Eureka & Klamath River Railroad Company, the appellant above named, filed in the superior court of the county of Humboldt, state of California, its bill in equity against the California & Northern Railway Company, the appellee, alleging, in substance, that the appellant is a corporation incorporated under the laws of the state of California for the purpose of constructing and operating a line of railroad in Humboldt county, in that state, from Eureka by ferry to Samoa, and from Samoa by rail by way of Areata to a point opposite the mouth of Hunter creek, on the Klamath river, with one branch from Areata, around the east shore of Humboldt Bay, to Eureka; that, under its articles, the appellant immediately began the construction of its railroad, and has put in operation its road from Eureka by ferry to Samoa, thence by rail to Areata, etc.; that in February, 1899, it located and commenced the construction of its branch line from Areata around and upon the east shore of Humboldt Bay to Eureka, a distance of about eight miles, and has now engaged in such construction a large number of laborers, and has expended therein about $100,000; that, at the expense of $00,000, the appellant has purchased and acquired a parcel of land in the city of Eureka for railroad purposes, passenger and freight depot grounds, freight yards, roundhouses, etc., and that it is. necessary that it shall acquire a certain described right of way,-30 feet iii width, and nearly a mile in extent, in the city of Eureka, to its said terminal grounds; that, for the purpose of acquiring said right of way, it began in said superior court for Humboldt county on January 30, 1899, three several suits, “by filing complaints” against the owners of the lands over which said right of way runs, which suits are still pending; that in February, 1900, the appellee was incorporated under the laws of the state of Nevada for the purpose of constructing, owning, and operating a line of railroad from Eureka to Crescent City, in the state of California, and that on March 13, 1900, with the object of hindering and delaying and preventing the appellant from completing its said railroad from Areata into the city of Eureka, and to its said terminal grounds, the appellee commenced in said superior court three actions, in which it seeks to condemn the identical parcels of land so sought to be condemned by the appellant, and for that purpose it is conspiring with the several owners of said lands to hinder and delay and obstruct and prevent the appellant from completing its said road into the city of Eureka, and that said actions are fictitious and are not prosecuted in good faith; that the parties in said conspiracy are pretending to prosecute said actions for the purpose of obtaining judgment condemning the said parcels of land for right of way for the appellee for its intended road; that the appellee has not commenced the construction of any railroad, or expended any money therein, and unless it be enjoined the appellant will be irreparably damaged, and its franchise to complete its road to its depot grounds in Eureka will be lost; that all said appellee’s acts were done for the purpose and with the intent to deprive the appellant of its right to construct its road into Eureka. The prayer for relief is that the appellee be enjoined from prosecuting any of the three actions, and that it be enjoined from building a railroad or instituting suits to condemn a right of way, or exercising any of the rights or powers of a railroad company over any portion of the appellant’s located right of way. The case was removed by the appellee to the circuit court of the United States for the Northern district of California, and that court sustained a demurrer to the bill for want of equity, and dismissed the suit. 103 Fed. 897.</p>

<p>1. Specific Performance — Person Entitled to Maintain Suit — Real Party in Interest.</p> <p>A real-estate broker, who takes an option for the purchase of property in his own name, hut in reality for the benefit of a customer, to whom he demands its conveyance, having. himself no interest in the contract beyond a contingent commission in case the sale is made, cannot maintain a suit for the specific enforcement of the contract, under Rev. St. Idaho, § 4090, which provides that every action must be' prosecuted in the name of the real party in interest, with certain exceptions, none of which cover such case.</p> <p>2. Statute of Frauds — Contract for Sale of Real Estate — Yerbal Extension.</p> <p>Under Rev. St. Idaho, § 6007, which provides that no interest or estate in real property, other than leases for a term not exceeding one year, can be created or declared except by an instrument in writing, a written contract, giving an option to purchase real estate within a specific time, cannot be legally extended by a verbal agreement.</p>

<p>Appeals from the Circuit Court of the United States for the District of Oregon.</p>

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

<p>1. Public Lands — Entby within Limits on Town Site— Construction on Statute.</p> <p>In Act March 3, 1877 (19 Stat. 382, § 2), which confirms entries which had been ^heretofore “allowed upon lands afterward ascertained to have been embraced in the corporate limits of any town,” which entries are regular, and are shown to include only vacant, unoccupied lands, not settled upon or used for municipal purposes, provided such confirmation shall not operate to restrict the entry of the town site to less than the maximum area permitted by law, the words “afterward ascertained” refer to the land department, and not to the settler; and the act applies to and confirms an entry in all respects within its terms, and upon which final proof had been made and accepted at a time when there was nothing upon the records of the department to show that the land was embraced within n town site, notwithstanding the settler may have known when he made the entry that it ivas claimed as within the town site, since such fact does not necessarily impeach his good faith, and it is the express purpose of the act to subject to entry all unoccupied land so claimed, above the maximum quantity therein prescribed.</p> <p>2. Same.</p> <p>Such act confirms only entries which at the time of its passage had been “allowed,” and does not apply to an entry which, while it had been allowed, and final proof accepted by the local land office, had subsequently, and prior to the passage of the act, been held for cancellation by the commissioner of the general land office. Per Boss, Circuit Judge, dissenting.</p>

<p>1. Corporations — Mortgages—Rights and Powers ow Trustee.</p> <p>Whore a mortgage given by a corporation to secure an issue of bonds reserved to the corporation the right to use and manage the property mortgaged, or to sell or lease its works to others to operate, “so long as no default shall be made in the payment of either principal or interest of the said bonds, or any of them,” the trustee in the mortgage may maintain a suit for the cancellation of a lease executed by the officers of the corporation at a time when it was in default in the payment of interest, which was made in opposition to iho wishes of a majority of the stockholders, and is alleged to be detrimental to the interests of the bondholders; and such right exists under the general principles of the law of trusts, independently of the provisions of the mortgage enumerating the rights of the trustee.</p> <p>2. Same — Construction of Mortgage — Right of Foreclosure.</p> <p>Provisions in a mortgage given by a corporation to secure bonds, giving the trustee the right to take possession of the mortgaged property or to foreclose the mortgage, on demand of a stated number of bondholders, in case the mortgagor should make default in any of its conditions, which default should continue for three months after demand, are not exclusive of all other remedies, and do not limit the general right of the trustee to go into a court of equity for the protection of his trust or the enforcement of the contract; and on the breach of a , covenant of the mortgage by the mortgagor, by failing to pay interest when due, the trustee may maintain a suit to foreclose for such interest at once, without regard to such provisions.</p> <p>8. Same.</p> <p>In a suit to foreclose a mortgage given by a corporation to secure bonds, where the legal right to foreclose exists, the court cannot take into consideration the motives which induced the trustee or the bondholders to exercise such right.</p>

<p>On Motion to Set Aside Verdict and Allow Plaintiff to Suffer a Nonsuit.</p>

<p>Master and Servant — Killing of Railroad Engineer in Collision — Negligence of Fellow Servants.</p> <p>Plaintiff’s intestate, who was engineer on an extra .train on defendant’s railroad, consisting of the engine and a caboose, was killed in a collision between his engine and the rear of a work train, which was ahead of him, and was just passing onto a side track at a station. The train orders sent to, and received by, the conductors and engineers of both the work train and extra were proper, and required the work train to protect against the extra. Deceased knew that the work train was ahead of him, and the evidence showed without conflict that he could and should have seen the signal made by a brakeman from the work train when 700 feet distant, within which distance he could have stopped. It also showed that he was running in disregard of an order which required him to run slowly and carefully at the place of collision. Held, that there was no evidence of any negligence on the part of defendant, and that whether the collision occurred through the negligence of deceased, or of the conductor of the work train, who were' fellow servants, defendant was not liable for the death.</p>

<p>1. Mining Claims — Underground Rights — Overlapping Claims.</p> <p>The locator of a lode mining claim having the right to lay any of his lines within or across the surface of a valid prior location, in the absence of objection by its owner, for the purpose of securing to himself underground or extralateral rights not in conflict with any rights of the senior location, where a junior claim overlaps, having one of its parallel end lines laid within or across a. senior location, its owner acquires all the rights, both surface and extralateral, as against the government and subsequent locators, that he could have if the prior location had not been made; and he may follow the vein in its downward course between the planes of his own end lines in all respects as though there were no prior location, except where it would conflict with the rights of the' owner of such senior claim.</p> <p>2. Same — Conclusivenbss of Patent — Priority of Location.</p> <p>An application for a patent for a mining claim carries with it an implied, if not an express, allegation that the location was made upon land at the time open to location, and was therefore prior to the location of any one else; and the issuance by the government of a patent therefor conclusively determines the priority of that Ideation over any other, and confers upon the patentee not only the title to the entire surface of the claim, but also all extralateral rights given by statute, as against the owner of an unpatented conflicting claim.</p>

<p>In Error to the Circuit Court of the United States for the District of Idaho.</p> <p>The defendant in error was the plaintiff in an action in the circuit court brought to recover a balance claimed to be due him upon a written contract. He alleged in his complaint that on June 5, 1893, he entered into a contract with the plaintiff in error, the Owyhee Land & Irrigation Company, a corporation, whereby he agreed to dig a certain canal, for which the said corporation promised to pay him $150,000, three-fourths of which was to be paid in cash, and the remainder in the company’s bonds. The complaint alleged the performance of the contract upon the part of the plaintiff, and-acceptance of the canal by the corporation, and admitted payment of the contract price therefor, except a balance of $42,851.86 unpaid, for which judgment was demanded. The plaintiff in error answered, denying all the material allegations of the complaint, and particularly denying that it had entered into the contract. On February 1, 1900, the defendant in error filed in the circuit court, and served upon counsel for the plaintiff in error, a notice that on the 12th day of March, 1900, he would move the court for an order requiring the defendant in said action to produce at the trial of the cause a complete record of all meetings of its board of directors and its stockholders, — especially all such as touched upon the construction of dams and canals;, also its articles of incorporation, and all letters written by said corporation or its officers to the plaintiff, and all letters received by said corporation •from the plaintiff; also all letters which passed between the corporation and one who was said to be its agent with reference to the construction of dams and canals. The notice closed with the u jrds, “If defendant fails or refuses to produce such evidence, plaintiff will move for judgment by default.” On the date mentioned in the notice no action was taken, and, so far as the bill of exceptions shows, no order was applied for in pursuance thereof until April 6, 1900, when the cause came on for trial before a jury. After the jury was regularly impaneled and sworn, the plaintiff in the action moved the court that the default of the defendant be entered, for failure to produce the books and other evidence referred to in the notice. The court held that the defendant had had sufficient notice to produce said books and other evidence, and, having failed to do so, was estopped to deny that the contract in question was its contract, and held that the defendant was in default, but that the court would inquire concerning the sum due under the contract. Whereupon the plaintiff was sworn as a witness in his own behalf, and testified that he had a contract with the corporation, and that the amount sued for was due him on the contract; that he had constructed the canal, and.the same had been accepted by the defendant. His counsel offered the contract in evidence, to which the defendant objected for the reason that it had not been proven to be the contract of the corporation. The court overruled the objections and admitted the contract in evidence. The defendant excepted. The defendant then offered to prove that it did not execute or enter into the contract, and that neither the president nor any officer of the corporation was authorized to execute any such contract, and that neither the board of directors nor the stockholders had ratified any such contract. To which offer the defendant objected, and the court sustained the objection. Thereupon the court instructed the jury to find a verdict for the plaintiff for the balance due, and for interest thereon from January 6, 1896, at 10 per centum per annum. The jury returned a verdict in accordance with the instructions.</p>

Agreed Statement from Circuit Court of tlie United States for the Eastern Division of the Northern District of Ohio. Held: affirming the report of the referee, that the claim of preference for labor performed within three months before the appointment of the receiver in the Ohio court did not constitute a preferential claim. This proceeding brings that judgment in review.

<p>In Bankruptcy. On petition by bankrupt for revision of proceedings in matter of law.</p>

<p>uostoms Duties — Figured Cotton Goods — Construction of Statute.</p> <p>Paragraph 313 oí the tariff act of 1897, imposing a duty, additional to that to which cotton goods are subject under the countable clauses, on “cotton cloth in which other than the ordinary warp and filling threads have been introduced in the process of weaving to form a figure,” should be construed as though it read “cotton cloth in which threads have been introduced to form a figure, which threads are other titan the ordinary warp and filling threads”; the word “ordinary” having reference to the threads which ordinarily go to make up the plain fabric, and which cannot be removed without destroying its integrity, as distinguished from threads introduced to form a figure and for ho other purpose, whether warp or filling threads, or introduced in the process of weaving by separate and independent machinery used solely to put in the figure. Dotted swisses and madras or damask goods ornamented With spots or figures woven in by independent filling threads, portions of which are afterwards cut away, are subject to additional duty under such paragraph.</p>

<p>Appeal by the importers from a decision of the board of United States general appraisers which sustained the action of the collector of customs-in assessing duty on the importations in question.</p>

<p>Patents — Infringement—Electric Pans.</p> <p>The Diehl patent, No. 537,679, for an oil guard for electric fans, and the Bennett patent, No. 585,250, for a combined electric fan and electrolier, held valid, and infringed, on the strength of a prior adjudication on an application for a preliminary injunction.</p>

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

<p>'Appeal from tbe District Court of the United States for the Northern Division of the District of Washington.</p>

Petition by Mary O. Delafleld for the appointment of viewers to assess the damages of petitioner by reason of the appropriation of her lands for public use by the city of Pittsburg. On motion by the city to dismiss the petition.

In Equity. Suit to enforce contract rights under ordinances passed by the city of Anoka, and to set aside as invalid certain ordinances purporting to repeal, those creating the contracts and granting franchises to complainants’ assignors.

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

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

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

The Manitoba Fish Company, a Canadian corporation doing business in the province of Manitoba, owned freehold and leasehold premises, docks, wharves, piers, rights of way, railways, sidings, easements, railroad and other franchises, buildings, sheds, erections, stock in trade and merchandise, stores, fittings, office fixtures, furniture, plant, machinery, and other property described, and on August 18, 1888, made with William Vernon Booth a contract for the sale and transfer…

<p>New Trial — Granting to Single Defendant — When Proper.</p> <p>Under the practice in the federal courts, a new trial may he granted to one defendant in an action, and the verdict and judgment he allowed to stand against others, where there is no reason for granting a new trial as to them; but where it appears that on the trial evidence was introduced as to transactions between the plaintiff and a defendant against -whom the evidence is insufficient to sustain the verdict, which evidence would not have been competent against his co-defendants, hut which may have enhanced the damages awarded, a new trial will he awarded as to all defendants.</p>

<p>In Bankruptcy. On review of decision of referee.</p>

<p>Bankruptcy — Discharge—Concealment on Assets.</p> <p>The fact that a bankrupt did not schedule or turn over to his trustee products of his wife’s lands which he claimed were owmed by her, where there was no concealment of the iiroperty, and the claim was openly made, did not constitute a knowing and fraudulent concealment of property which would defeat his right to a discharge under Bankr. Act 1898, § 14b, although the property may have been, as matter of law, a part of his estate.</p>

In Bankruptcy. On review of decision of referee on a petition filed By A. A. McDonald, trustee. The record in this case shows that a petition in bankruptcy was filed against Joe P. Matthews, bankrupt, on the 13th of October, 1S99, and service was immediately issued and had. He was not adjudicated a bankrupt, however, until March 9, 1900.

<p>Bankruptcy — Discharge—Debts not Released.</p> <p>A judgment recovered in a court of New Jersey for seduction of the plaintiff’s minor daughter, which must be based on loss of services, but also includes damages for personal injuries to the plaintiff through being subjected to mental anguish, disgrace, etc., is one for a “willful and malicious injury to the person or property of another,” within the meaning of Bankr. Act 1898, § 17, subsee. 2, and is not released by a discharge of the defendant in bankruptcy.</p>

<p>In Bankruptcy.</p> <p>On petition of Wisconsin Central Railway Company for- relief on garnishment proceedings for its indebtedness to the bankrupt The bankrupt filed his voluntary petition and was adjudged bankrupt on May 23, 1901, pending the garnishment proceedings in justice’s court, wherein judgment had been entered in the principal action against the bankrupt, and an order made upon the answer of the garnishee to pay to the justice the sum due from it to the bankrupt within 10 days after May 15, 1901; the bankrupt being insolvent throughout such proceedings. On May 27th judgment was entered against the garnishee in default of such payment, pursuant to section 3726, Rev. St. Wis. 1898. The petitioner further sets up that the amount of its indebtedness to the bankrupt is exempt, and so claimed by him, and prays leave to pay the amount thereof into this court, and for such order in the premises as may be just, for the protection of the petitioner therein.</p>

<p>Bankruptcy — Provable Claims — Kecovery oe Preference by Suit.</p> <p>A creditor who has knowingly received a preference, voidable under Bankr. Act 1898, § tiOb,' which the trustee is compelled to recover by suit, cannot thereafter prove his debt against the bankrupt’s estate. Nor will an unaccepted offer to pay a sum smaller than that recovered operate as a “surrender” of the preference, which will entitle him to prove such debt.</p>

In Bankruptcy. On petition of trustee for leave to sell an expectancy of the bankrupt in the estate of a deceased ancestor.

<p>Bankruptcy — Provable Claims.</p> <p>One wbo put up margins to a broker on purchases of marketable commodities for future delivery cannot prove his claim therefor against the estate of the broker in bankruptcy, where there is no evidence to show the result of the transactions, or that any returns were received by the bankrupt therefrom.</p>

<p>Bankruptcy — Administration of Estate — Adjustment of Liens.</p> <p>A court of bankruptcy will not undertake to determine or adjust liens upon property oí the bankrupt, unless it appears that the trustee has at least a probable interest in it for the creditors.</p>

<p>1. Bankruptcy — Discharge—Concealment of Assets.</p> <p>The failure of a bankrupt to include in his petition and schedules real estate which he caused to be conveyed to another some years before for the purpose of defrauding his then creditors, and which is still held by the grantee on a secret trust for the bankrupt, is a fraudulent concealment of property from his trustee, and his verification of his schedule constitutes a false oath, which defeats his right to a discharge.</p> <p>8. Same — Hearing of Objections to Discharge — Evidence.</p> <p>The testimony of third persons, taken on the examination of a bankrupt before the referee, is not directed to a defined issue, and is inadmissible on a subsequent hearing of specifications against the bankrupt’s application for discharge.</p>

<p>In Bankruptcy. On question certified by referee.</p>

<p>Bankruptcy — mans— special Lien under Georgia Statute.</p> <p>Under Civ. Code Ga. § 2801, which provides, inter alia, that “all contractors for building factories, furnishing material for the same or furnishing machinery for the same * * * shall each have a special lien on such * * * factory,” one who sold articles of machinery to a corporation for the equipment of its factory, which it operated in a leased building for the manufacture of plow handles, boxes, and similar articles of wood, is entitled to a special lien therefor upon all the machinery, appliances, and equipment owned by the purchaser, and essential to the operation of its factory, whether considered realty or personalty; and, where the claim for a lien was properly filed and recorded within the time required by the statute, the lien is not affected by the bankruptcy of the purchaser prior to such recording, hut may be enforced against the proceeds of the property sold by the trustee.</p>

<p>In Bankruptcy. On question certified by referee.</p>

. The indictment in this case is based upon section 5480 of the Revised Statutes of the United States, as amended by the act of March 2, 1889 (25 Stat. 873), and embraces three counts. A demurrer having been sustained as to the third count, and overruled as to the first and second counts, the case was submitted to the jury upon .the first and second counts, and the trial "resulted in a verdict of acquittal on the second count, and conviction on the first count.

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

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

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

<p>Dismissal of Suit — Want of Jurisdiction.</p> <p>Plaintiff sued a domestic and a foreign corporation, and on petition of the nonresident defendant the case was removed to the federal court. After removal plaintiff voluntarily entered nonsuit as to the nonresident defendant, and moved to remand the ease. Acts of 1887 and 1888, repealing section 5 of the act of 1875, declare that all cases removed from the state to the federal courts shall be proceeded with as if regularly brought in the federal court. Held, after such removal, where plaintiff enters a nonsuit, the federal court loses jurisdiction, and the cause must be dismissed, and not remanded.1</p>

<p>Federal Jurisdiction — Citizenship.</p> <p>For the purpose of federal jurisdiction, defendant is a citizen of Illinois; it being admitted that she was such till three months before the filing of the bill, when she came to Milwaukee to attend to other litigation, and she having engaged only temporary rooms, her furniture being stored in Chicago; no duty or obligation appearing to call her to Milwaukee permanently, though she had property interests there in charge of local attorneys, and had lived there prior to her marriage to her deceased husband; and she testifying that when she came to Milwaukee she had no intention to make it her permanent home, and her intention was and continued to return to Chicago when her business was completed, and to retain her domicile there, in expectation of certain employment, for which she afterwards obtained piomise, though when plaintiff’s attorneys called on her in Milwaukee in reference to a tender for purpose of the suit, while awaiting the presence or advice of her counsel, she, in answer to an inquiry as to what her intentions were as to making Milwaukee her home, answered that she was lonesome in Chicago, and intended to make Milwaukee her home.1</p>

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

In Equity. On demurrer to bill and plea. This is a bill filed by the Home Insurance Company of New York and the German-American Insurance Company of New York against the Virginia-Carolina Chemical Company, the Hartford, Eire Insurance Company, of Hartford, Conn., the National Eire Insurance Company, of Hartford, Conn., the Connecticut Insurance Company of Hartford, Conn., the I’hcenix Assurance Company, of London, the Liverpool & London & Globe Insurance ■ Company, the…

<p>In Equity. On plea going to the jurisdiction of the court.</p>

<p>1. Federal Courts — Jurisdiction—Suit against State.</p> <p>A suit by a gas company against a gas commission created by the state, and the attorney general of the state, who is charged by statute with the duty of enforcing the orders of the commission by proceedings in the courts, to enjoin threatened proceedings to enforce such an order, and to have it declared void as in violation of the right of complainant under the constitution of the United States, is not a suit against the state, within the eleventh constitutional amendment.1</p> <p>2. Equity Jurisdiction — Preventing Multiplicity op Suits — Suit to Determine Constitutionality op State Statute or Regulation.</p> <p>A federal court of equity tías jurisdiction of a suit by a gas company against officers of a state to enjoin the threatened enforcement of an order made by defendants, under a statute requiring complainant to supply gas to customers at a rate which is alleged to be so unreasonably low that the enforcement of the order will result in depriving complainant of its rights under the fourteenth constitutional amendment, both on the ground of the prevention of a multiplicity of suits between complainant and its customers and because such a suit is the most appropriate method of determining the constitutional questions involved.</p>

<p>1. Municipal Bonds — Jurisdiction of Equity to Enforce — Effect of Subdivision of Municipality.</p> <p>Where bonds in excess- of the constitutional limit of indebtedness have been issued by an Iowa school district which is subsequently subdivided into a number of districts, between whom, under the statute, the existing indebtedness must be equitably distributed, the remedy of a bondholder to enforce payment of his bonds is in equity, both on the ground that there is no privity of contract between him and the new districts, and also because the amount of the indebtedness which is valid can only be determined and apportioned as between the different districts and bondholders by a court of equity in a suit to which such bondholders are made parties.</p> <p>2. Jurisdiction of Federal Court — Citizenship of 'Parties — Arrangement According to Interest.</p> <p>A federal court has jurisdiction of a suit brought by a holder of a portion of an issue of bonds made by a school district which exceeded its constitutional limit of indebtedness against the district and the other bondholders, to establish the validity of his bonds and enforce their payment, notwithstanding the fact that some of the other bondholders are citizens of the state of-which, the district is a corporation, since upon the issue as to the amount of complainant’s enforceable indebtedness, to determine which the other bondholders are joined, their interests and that of complainant are adversary.</p> <p>3. Municipal Bonds — Issuance beyond Constitutional Limit of Indebtedness-Jurisdiction OF iüqUITY.</p> <p>Where a municipal corporation has issued and sold for full value a series of bonds, which it refuses to pay on the ground that such issue increased its indebtedness beyond the constitutional limit, a court of equity at suit of the bondholders may inquire into tho facts, to ascertain what part, if" any, of the debt thus created can be enforced without violating the constitutional limitation, and may award judgment for such amount.</p> <p>4. Same-Extent to Which Enforceable.</p> <p>Where at the time of the issuance of a series of bond's by a school district it was already indebted beyond the constitutional limit, such bonds may be enforced to tbe extent that their proceeds were used in paying oft valid prior indebtedness of the district, but not beyond such amount.</p> <p>5. Limitation — Suit to Determine Validity of Municipal Bonds.</p> <p>A suit by the holders of an issue of municipal bonds which increased the indebtedness of the municipality beyond tbe constitutional limit, to obtain a determination of the amount for which such bonds are valid, and to enforce them to that extent, is not an action to recover for money received, against which limitation runs from the time the bonds were sold, but is one for tbe enforcement of tbe contract made by the bonds, and limitation runs only from their maturity.</p>

<p>Exchanges — Property Right in Market Quotations — Wiiat Constitutes Publication.</p> <p>The furnishing by a board of trade of market quotations, made upon the transactions of its exchange, to customers for their exclusive use, either by means of a ticker, or by placing them on a blackboard in the customers’ office, is not such a publication as deprives the board of its property right therein, and it is entitled to the protection of such right by an injunction prohibiting the use of such quotations without its authority, and before their publication, hy a third party, to whom they are furnished hy one who obtains them surreptitiously.</p>

<p>1. Revival — Defenses.</p> <p>A defendant in a suit in equity, wlio has answered, cannot be permitted to defeat a. bill to revive the suit, after the death of the complainant, by interposing objections which are, in effect, a demurrer to the original bill.</p> <p>2. Same — Laches.</p> <p>The right to revive a suit may be defeated by inexcusable laches resulting in irreparable injury to defendant, where it occurred after the abatement of the original suit; but delay in the commencement of tlie original suit, not pleaded as a defense thereto, cannot be considered on a bill to revive.</p> <p>3. Same.</p> <p>After a suit had abated by the death of the complainant, a bill to revive was filed, to which a demurrer was sustained on the ground that tlie right of action did not vest in the parties filing it, but leave was given to amend by substituting tlie real parties in interest. The time for amending was extended from time to time, with the consent of defendants, until nearly three years later, and eight years after tlie death of complainant, when a new bill of revivor was filed by the proper parties. Held, that the fact that a new bill, instead of an amended bill, was filed, was immaterial, anti that, although the delay appeared to ho without excuse, it was, in effect, by defendant’s consent, and did not constitute ladies prejudicial to their rights, which they could invoke to defeat the revival.</p>

<p>1. Fraud — Retention of Benefits — Equity.</p> <p>Where, by fraud and misrepresentation to defendants’ agent, complainant procured the insertion of his Dame as purchaser in an order confirming an administrator’s sale of an interest in a mine and in the administrator’s deed, when defendants’ bid was the only one received and acted on, a court of equity should not assist him to retain the benefit of his fraud by setting aside a subsequent deed, which the administrator was compelled to issue to defendants by mandamus in the state courts.</p> <p>2. Same — Partners—Concealment of Value — Deed—Delivery.</p> <p>. The parties were partners in certain mining enterprises, and jointly owned an interest in a claim, in which complainant also owned a separate interest Defendants, by tunneling from an adjoining mine, managed by them, discovered an extensive and valuable vein of ore in such claim, and, concealing such fact from complainant, procured an option on his interest, and execution and delivery in escrow of a deed therefor, and afterwards, by fraud, and without payment therefor, obtained possession of the deed. JIaid, that such deed should he set aside as fraudulent and void, both because of such concealment and because never delivered.</p>

<p>1. Taxation — Time of Assessment by Relation — California Statutes.</p> <p>Const. Cal. art. 13, § 8, provides that the legislature shall by law require each taxpayer to make and deliver to the county assessor annually a statement, under oath, setting forth all the real and personal property owned by him, or in his possession or under his control, at 12 o’clock m. on the first Monday ’of March. Pol. Code, § 3628 et seq., requires assessors to list and assess all property between the first Mondays in March and July to the person by whom it was owned al: 12 o’clock m. on the first Monday in March, and also makes the tax so assessed a lien upon the real estate of the taxpayer from such date. Held, that under such provisions the taxable status of property was determined by its condition on the first Monday- in March, at 12 m., and that property which on that date was not taxable under the statutes of the state was not required to be returned by the owner, and could not be assessed for taxation for that year, notwithstanding the passage of an act after that date, but before the time for the closing of the assessments, making it taxable, where such act operated only prospectively.</p> <p>2. Same — Construction oe Statute — Retboactive Operation.</p> <p>Lndor the provision of I’ol. Code Gal. § 3, that no part of such Code is retroactive unless expressly so declared, which applies also to amendments as well as to the original Code, an amendatory act providing for the taxation of property which was not previously taxable, not passed so as to go into effect until niter the date on which the taxable status of property for that year became fixed under the statutes, cannot be held retroactive, in the absence of any language declaring’ It so, merely because it was the intention of its supporters to have it passed in time to apply to taxation for the current year.</p> <p>8. Same — National Bank Shares.</p> <p>The amendment to Pol. Code Oal. § 3(108, providing for the taxation of national hank shares (St. 1899, p. 90), which went into effect March 14, 1899, was not retroactive, and did not authorize the assessment of such shares i'or the fiscal year beginning in 1899. ,</p>

Upon the return of this case to tho circuit court after the decision upon tho first writ of error (33 C. O. A. 269, 90 Fed. 774), an amended declaration was filed, in which to the original charge of failure properly to light tho mill, to instruct the plaintiff where and how to do his work, and to warx him of the dangers incident thereto, a charge was added of negligent eot«straction of the mill, in that proper and adequate guards, railings, u ••«jiina: means of protection…

At Law. On demurrer to declaration. ' This is a civil action, by which the county of St. Olair, of the state of Illinois, seeks to recover from, defendant, a corporation of the state of Missouri; $240,000, as a penalty for maintaining a certain ferry for the conveyance of property across the Mississippi river from East St. Louis, 111., to St. Loufe', in the state of Missouri, without license from the board of county commissioners of said St. Clair county, as the statutes of…

<p>In pursuance of a stipulation in writing, this case was tried by the court on the áth and 5th days of June, 1901, without the intervention of a jury. The defendant’s third plea raises the question of res ad judicata, which question regularly should be, and it will be, considered first. The facts to sustain this plea are shown to be as follows, and are so found by the court:</p> <p>(1) This action of trespass is for the recovery of damages for personal injuries sustained by the plaintiff on the 9th day of October, 1899, by reason of the alleged negligence of the defendant corporation, in whose employment at its manufacturing plant Uie plaintiff was at the time he was injured. The statement of claim, in substance, alleges that the entire control, management, and direction of this manufacturing plant and of the employes thereat’ (including the plaintiff) were put by the defendant corporation under the exclusive authority and supervision of Miller Remale.v as the representative of the defendant, and that by reason of an improper order given by Remaley, as such representative of the defendant, and which order the plaintiff obeyed, the plaintiff was caught in certain exposed' and unguarded cogwheels, and both his arms were ground up so as to require amputation near the shoulders; that Remaley was careless, reckless, and unfit for the exercise of the authority delegated to him by the defendant, as was known by the defendant, or should have been known by the defendant in the exercise of ordinary care; that the defendant was negligent in not providing a careful and competent superintendent, in not providing a safe place for the plaintiff to work in, in putting him to work in a dangerous place and at dangerous work with which he was unfamiliar and inexperienced without giving him any instruction or warning, and in not providing proper coverings for the cogwheels, and guards for protecting the workmen therefrom.</p> <p>(2) This plaintiff brought an action of trespass against this defendant in the court of common pleas No. 1 of Allegheny county, Pa., a court of competent jurisdiction, to No. 012 of December term, 1899, for the recovery of damages for the same personal injuries sustained by 'the plaintiff by reason of tlie alleged negligence of the defendant, for which this action is brought. The cause of action, as set out in the plaintiff’s statement of claim in the prior suit, was substantially the same as the cause of action as set out in the plaintiff’s statement of claim in this suit; the only material difference between the two statements of claim being that in the former suit it was not charged, as it is here, that the defendant’s superintendent Was careless, reckless, and unfit for the exercise of the authority delegated1 to' him, as the defendant knew, or should have known. The facts in this-ease are identical with the facts in the former case. The action in the court of common pleas so proceeded that at the close of the trial the jury rendered the following verdict: “And now, to wit, April 30, 1900, we, the jurors impaneled in the above-entitled case, find for the plaintiff the sum of five thousand dollars ($5,000), subject to the opinion of the court on the question of law reserved: Whether, under the undisputed evidence, the relation of Miller Kemaley to' the defendant company was such as to makC’it -responsible for the consequences of his improper order. If the CouVt ■ should be of opinion that the company is not so responsible, then judgment to be entered in favor of defendant notwithstanding the verdict.” Subsequently the court of common pleas made the following ruling and order: “And now, August 4, 1900, this case having been argued by counsels upon consideration thereof the question of law reserved is ruled in favor;of the defendant, and it is ordered that the judgment be entered in favor of the defendant non obstante veredicto.”' And accordingly, on the same day, judgment was entered in favor of the defendant. The plaintiff appealed from this judgment to the supreme court of Pennsylvania, and, after argument, the supreme court, on January 7, 1901, affirmed the said judgment of the court of common pleas.</p> <p>(3) This suit was brought on the 21st day of February, 1901.</p>

<p>1. Life Insurance — Policy—Premium—Forfeiture—Receipt for Loan.</p> <p>A life policy provided that, if any premium was not paid when due, the policy should determine, except that it should continue in force for such length of time as the net reserve then accrued thereon would pay for, after payment of any loan made by the company to the insured. The insured afterwards borrowed from the company, and executed a receipt for the loan, which provided that, if the interest thereon was not paid, it should be added to the principal, and if, owing to nonpayment of interest, the loan should ever equal or exceed the then net reserve value of the policy, the policy should thereupon become null and void. Held, that such provision in the receipt for forfeiture of the policy on the contingency therein specified was not a substitute for, and did not abrogate or affect, the provision in the policy for forfeiture for nonpayment of premiums.</p> <p>2. Same — Cash Surrender Value.</p> <p>A life policy provided that, if it should lapse because of nonpayment of a premium, the cash surrender value, consisting of the amount of the net reserve accrued on the policy, less a surrender charge equal to 1 per cent, of the sum insured, would be paid or applied to the purchase of term or paid-up insurance. The amount of such value for each year was printed on the policy. But, if a loan had been made on the policy, the loan should be paid off out of the “cash surrender value,” and the remainder paid in cash, or applied to extended or paid-up insurance, “the amount to be applied to the purchase of such insurance being correspondingly reduced in the ratio of the indebtedness to the full cash surrender value.” Held, that the terms “cash surrender value” and “full cash surrender value” referred to the same sum, being the amount computed in the manner specified and indorsed on the policy; hence the latter term did not mean the full net reserve without deduction of the surrender charge.</p> <p>8. Same — Conditional Dividend — Lapsed Policy.</p> <p>A life insurance company declared a dividend to such participating policies as should be continued in force after their policy anniversaries .by. payment.of renewal premium, and provided that no dividend should be payable to policies not continued in force after their anniversaries in such year. Held, that a policy which lapsed because of nonpayment of the premium thereon for such year was not entitled to such dividend, or to have it applied to extend the insurance.</p>

<p>Gaming — Bucket Shops — Margins—Fictitious Transactions — Recovers.</p> <p>Transactions in a “bucket shop,” consisting of fictitious contracts of sale or purchase for future delivery of stocks, grain, provisions, etc., with the intention that there should be no delivery, but a settlement by paying the difference of prices, are not a “game,” within the meaning of Acts Ind. June 11, 1852 (3 Burns’ Rev. St. 1894, § 6676), providing that a person betting on a game, and losing any money thereon, and paying the same, may recover it by action.</p>

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

<p>Judgment — Res Judicata — 'State Decision as Bar to Action in Federal Court.</p> <p>A judgment of the supreme court of a state in an action for a man-' damus brought by the owner of township bonds against the commissioners of the county, as statutory agents of such township, to compel the levy of a tax to pay matured coupons, which judgment, on an issue joined as to the validity of the bonds, determined them to be illegal and void, is binding upon a subsequent purchaser of the bonds who is in privity with the former owner as to such judgment, and is a bar to an action brought by him in a federal court to recover judgment against the township on coupons from the same bonds subsequently maturing, since the parties and the subject-matter involved are essentially the same, and the prior judgment, which necessarily established the invalidity of the coupons sued on, was rendered by a court whose jurisdiction was invoked by one by whose action the plaintiff is concluded.</p>

<p>In Bankruptcy.</p> <p>On petition for adjudication of involuntary bankruptcy. The original petition for involuntary bankruptcy is by Adolph Keitel as a single alleged creditor, stating that all the creditors are less than 12 in number. After preliminary hearing in reference to the bona lides and provability of the petitioner’s claim, the further hearing was postponed to enable other creditors to intervene, as the answer disclosed a number of creditors in excess of 12.</p>

<p>In Bankruptcy. On certificate from referee concerning disallowance of claim of F. F. Kaufman.</p>

<p>Bankruptcy — Debts Entitled to Priority — Wages.</p> <p>The priority of a claim for wages against a bankrupt’s estate and the. amount-allowable in priority are determined by Bankr. Act 1898, § 64, cl. “b,” par, 4, which deals specifically with wages, and not by the laws of the state, under paragraph 5, which relates to “debts,” other than wages, which are entitled to priority.</p>

<p>1. Bankruptcy — Discharge—Objections.</p> <p>The fact that a bankrupt is a nonresident of the district does not affect his right to a discharge.</p> <p>2. Same.</p> <p>The fact that a bankrupt transferred property to his wife years before the passage of Bankr. Act 1898, and that he failed to schedule such property, constitutes no ground for refusing him a discharge, when it does not appear that the wife holds the property in secret trust for Ms benefit.</p> <p>8. Same — Sufficiency of Objections.</p> <p>Where it is specified as an objection to the discharge of a bankrupt that lie has committed the crime of perjury in his testimony before the referee, the objection must set out the testimony alleged to be false, together with the facts relied on to prove its falsity, so as to present a specific issue.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On certificate from referee.</p>

<p>In Error to-the District Court of the United States for the Southern District of New York.</p> <p>This is a writ of error to review a judgment of the district court for the Southern district of New York, which, upon an interlocutory petition in bankruptcy, adjudged that the individuals composing the firm known as the “Universal Art Publishing Company” and the co-partnership were bankrupts. The-issues under the pleadings came to trial before a jury.</p>

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

<p>Bankruptcy — Evidence of Partnership.</p> <p>A person cannot be held a member of a partnership as to third persons unless he is in fact a partner as between himself and the other members of the firm, or has by his acts placed himself in such a position that he is estopped to deny that he is a partner. Evidence that a person 'has in his possession, and claims to own, goods which were sold to a bankrupt mercantile firm, or even that he obtained such goods without consideration, through a conspiracy with known members of the firm, and with intent to defraud its creditors, while it may establish fraud which will entitle the trustee in bankruptcy to .recover such goods, has no tendency to prove that he was a partner, to warrant his adjudication as a bankrupt as one of the members of the firm, in the absence of any evidence tending to show a partnership agreement, or that he held himself out as a partner.</p>

<p>1. Federal Courts — Habeas Corpus — Jurisdiction.</p> <p>To give a circuit court of the United States jurisdiction to grant a writ of habeas corpus under the provision of Kev. St. § 753, that the writ “shall in no case extend to a prisoner in jail unless he * * * is in custody in violation of the constitution or of a law or treaty of the United States,” it is not sufficient for the petition to allege generally that the petitioner is held in violation of the constitution or a law or treaty, but it must also set out the specific facts on which such allegation is based, which must be sufficient to sustain it if proved.1</p> <p>2. Constitutional Law — -Due Process of Law.</p> <p>Ordinarily, the provision of the fourteenth constitutional amendment, relating to due process of law, does not apply where the legislature of a state has performed its duty by providing for proceedings which answer the constitutional requirement, and where the fault is either with the courts or officers.</p> <p>3. Same.</p> <p>Following Durrani’s Caso (O. O.) 84 Fed. 317, an. appeal was denied.</p>

<p>In Equity. Suit for, infringement of patent. On motion by defendant to dismiss.</p>

<p>In Equity. Suit for infringement of a patent. On motion by defendant to dismiss.</p>

On the morning of August 31, 3808, the tug Columbia, which was maintained at Coos Bay, Or., as an emergency boat, and was the only tug in commission on or adjacent to the waters of that bay, left Empire City in charge of her master, with a deck-load cargo, consisting of 50,000 shinglos and some general merchandise, and bound for Gardner, Or., a port some 20 miles to the northward. As she was coming out of the bay a steamer was, sighted coming in from the ocean.

<p>3. Federal Jurisdiction — Action on Bond for Government Work.</p> <p>An action on bond for government work, wbicli 28 Stat. 278, c. 280, requires a contractor to give, conditioned that the contractor shall promptly pay laborers and material men, and on which such statute authorized such persons not paid to sue in the name of the United States for their benefit, is within the provision of Judiciary Act 1875 (18 Stat. 470), brought into Act 1887, corrected by Act 1888 (25 Stat. 433), giving circuit courts jurisdiction of civil suits “arising under the laws of the United States,” where the matter in dispute exceeds 82,000.</p> <p>2. Same — Personal Liability.</p> <p>One not an obligor on a bond given by a contractor for government work cannot be held liable for broach of condition in a direct suit on the bond, though he is an indemnitor of an obligor, and, on the contractor giving up, takes up, with the consent of all concerned, the completion of the contract for him.</p> <p>3. Same — Beneficiaries.</p> <p>Where It., contractor for government work, gives up, and K., indemnitor for an obligor on bond of It., takes up, with the consent of all concerned, the completion of the work under the contract for It., a person who. having a contract with R. to furnish him materials, keeps on and furnishes them to K. under his said contract, is within the provision of the bond given by R., that he should promptly pay all persons supplying him materials for the work.</p> <p>4. Contract— Construction.</p> <p>A contractor gave a bond for benefit of material men, conditioned for prompt payment. A person contracted to furnish him material:, 80 per cent, of that put in place to be paid for the 1st of each month; “the remaining 20 per cent, to be paid for on completion of the work. Bold, that the contractor having failed to make the 80 per cent, payments, and the material men having thereupon refused to proceed under the contract, and treated it as rescinded, the 20 per cent, became due, with the rest, and could be recovered on the bond before completion of the work.</p>

<p>1. Equity — Rehearing—Time for Filing Petition.</p> <p>A decree entered on tiie report of a master, to wliieli exceptions were filed and argued, fixing tlie amount and priority of claims against an insolvent corporation, and ordering a distribution of tbe fund arising from a sale of its property, is a final decree, from wbicb an appeal lies, and, under equity rule 88, a petition for a rebearing cannot be entertained after tbe expiration of the term at which the decree was entered, and it is immaterial that a portion of the fund is still in court and undistributed at the time the petition is filed.</p> <p>2. Same — Bill of Review — Grounds.</p> <p>A federal court of equity cannot entertain a petition in the nature of a bill of review which is not' filed until after the time has expired for talcing an appeal from the decree sought to be reviewed, nor if filed in time, where the only ground alleged as the basis for such petition is that the petitioner, who was plaintiff in the suit, holds a claim against the defendant which he was entitled to have allowed by the decree, but which he failed, through his own laches, to present to the master or the court.</p> <p>3. Receivers — Duty to Report Claims.</p> <p>It is no part of the duty of a receiver appointed to take charge of and manage the property of an insolvent corporation to report to the court for allowance a claim in behalf of the plaintiff in the suit for rent accruing during the receivership for property leased by plaintiff to the corporation; but such duty devolves on the plaintiff.</p>

This is a bill filed for the purpose of compelling the specific performance oí an agreement made June 15, .1898, between the complainant, Roberts & Co., and the trustees of the sinking fund of the city of Cincinnati, for the refunding of certain bonds of that city, amounting to $15,610,000, at paxvalue. The bonds which it was proposed to refund were to mature on different dates from 1902 and 1909, and bore interest at rates varying from 6 to 7% per cent.

Mandamus. Issue having been joined upon the writ of alternative mandamus and respondents’ return thereto, this cause came on for trial before the court without a jury, both sides, by a stipulation tiled, agreeing that the issues of fact upon the pleadings might be tried and determined by the court, and expressly waiving a jury.

<p>Contracts — Construction of Contract to Furnish Boilers — Modification of Specifications.</p> <p>A contractor for the construction of a building invited bids for boilers to be furnished in accordance with the specifications contained in its contract, but requiring bidders to furnish detailed specifications, describing the particular boiler they proposed to furnish. The successful bidder furnished such specifications, containing a guaranty; and they, together with the original plans and specifications, were attached to the contract subsequently signed, which provided that the owner’s plans and specifications were understood as forming a part of the agreement, “except the changes in details of construction covered by” the proposal and specifications of the bidder. Held, that such contract was governed primarily by’the owner’s specifications, ánd that their requirements were superseded by the guaranty contained in the bidder’s specifications only as to matters expressly covered by the latter, and as to which the two were inconsistent.</p>

<p>Judgment — Matteks Concluded — Invalidity of Municipal Bonds.</p> <p>A judgment rendered in an action on coupons from municipal bonds, adjudging the bonds void, is conclusive against a subsequent purchaser of such bonds, unless it is shown that he bought before maturity, and without notice of the judgment.</p>

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

This is an action at law, removed into the court below from the circuit court for Wilson county, Tenn., upon the petition of the above-named plaintiff in error. Held: and that the estate of said Burton shall be settled as if no will was ever probated.” Thereupon the chancery court, reciting this agreement, ordered that it be “in all .things confirmed and approved, and is made the decree of this court'.

In Bankruptcy. B. J. Sanderlin was duly adjudged a bankrupt, and a trustee appointed at a meeting of creditors. The trustee filed a petition, alleging — which allegations are admitted — that within four months of bankruptcy proceedings B. J. Sanderlin and John P. McMillan, trading as Sanderlin & McMillan, executed a mortgage on a certain sawmill plant, fixtures, etc., eight miles from McKee’s Cut, Bladen county, to secure a debt of $1,500 due by said firm.

<p>1. Bankruptcy — Choice of Trustee.</p> <p>Under Bankr. .Act 1898, § 56a, requiring matters submitted to the creditors to be passed'on “by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present,” the vote turns not on the number of creditors present and the amount represented by them, but on the number and amount of allowed claims present before the referee at the time of the vote; so that a trustee must receive a majority vote of such claims.</p> <p>2. Same — Creditors Present.</p> <p>Even if Bankr. Act 1898, § 56a, allows a trustee to be chosen by a majority of creditors present, instead of a majority of allowed claims present, 'a creditor is present for the purpose of being counted where he is represented at the meeting by an attorney at law or proctor, though the latter's power of attorney is insufficient for voting purposes.</p> <p>3. Notary Public — Certificate of Acknowledgment.</p> <p>A notary public’s certifícale of acknowledgment without any venue is insufficient, and is not aided by the venue to a preceding affidavit, the certificate of acknowledgment being wholly separate from the affidavit, and being an independent requirement.</p> <p>4. Bankruptcy — Rejecting Vote for Trustee..</p> <p>The referee may reject a vote for trustee on the ground that it is in the interest of the bankrupt, though the creditor’s proxy is an attorney, and claims an attorney’s privilege from answering when questioned on the matter, and, on the claim being overruled, refuses to answer.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia in Bankruptcy.</p> <p>J. S. Scofield’s Sons Company intervened in the bankruptcy proceedings against the Oconee Milling Company, claiming the right to payment in full from the proceeds of the bankrupt’s property on the ground- that it was entitled to a lien on the mill property, under the statutes of Georgia, for a balance due on the price of machinery and repairs for such mill. Its account covered, in addition to repairs made on stationary machinery, charges for trucks, axles, and wheels for tram cars used in connection with the mill, and other similar articles. The claim to a lien and preferential payment was disallowed by the referee .as to such charges, but the court, by Speer, district judge, sustained exceptions to the referee’s report, and sustained the intervener’s contention in full. The claim to a lien was based on Civ. Code Ga. 1895, § 2801.</p>

<p>Bankruptcy — Exemption—Residence—Intent to Return.</p> <p>Where a bankrupt’s husband was never a resident of the state of North Carolina, and she was never therein except that they visited and boarded in the state a short time soon.after their marriage, she is not a resident, or entitled to the exemption provided by the si ate constitution (article 10, § 1) to “any resident of this state,” “to be selected by such resident,” though she testifies that she is absent from the state temporarily, and intends to return thereto, since there can be no intention to return without a former or actual bona fide residence to return to.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Mining Corporation — Involuntary. Petition — Jurisdiction.</p> <p>A corporation organized under tlie act of assembly of Pennsylvania approved April 29, 1874 (section 2, subsec. 18), authorizing incorporation for the purpose of carrying on mechanical, manufacturing, mining, and quarrying operations, and which is engaged, as its principal business, in the mining of coal, is not a “corporation engaged 'principally in manufacturing, trading, printing, publishing, or mercantile pursuits,’’ within the contemplation of the bankruptcy act. Hence the district court has no jurisdiction- to adjudge such a corporation bankrupt on an involuntary petition.</p>

In Bankruptcy. On intervention of the Strobel & Wilkin Com pany. The intervener filed its petition to recover certain merchandise of the bankrupt estate now in the possession of the trustee in bankruptcy; claiming that the same were fraudulently obtained by the bankrupt with the intention of rtrrt paying for them, and also «iron false representations as to his financial condition.

In Bankruptcy. This is an application on the part of the trustee for additional compensation for services performed by him as trustee of the bankrupt estate. From the evidence submitted the court iinds the facts to be that in November, 1900, the bankrupt was adjudicated as sucli, and the petitioner duly elected as trustee.

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On review of decision of referee.</p>

<p>Customs Duties — 'Yarns—Ascertaining Weight.</p> <p>Customs Duties Act 1807, par. 362, provides for cotton yarn, not dyed, or advanced beyond the condition of singles, a duty of throe cents per pound on all numbers up to 15, ono-Ufth of a cent per number per pound on all numbers between 15 and 30, and one-fourth of a cent per number per pound on higher numbers; for yam dyed or advanced beyond the condition of singles, six cents per pound on all numbers up to 20, one-fourth of a cent per number per pound on numbers between 20 and 80, and three-tenths of a cent per number per pound on higher numbers. Treasury Department Hule Sept. 8, 1897, for ascertaining the number of cotton yarns, says multiply the number of yards by the number of strands, multiply the product by 8</£¡, and divide the resulting product by the weight of the yarn in grains. Held, in case of cotton yams dyed, glazed, and finished, hut not advanced beyond singles, that, though dyeing and glazing increases the weight and decreases the number of the yarn, and the weight used by tlie formula is that of, and by it the number is ascertained according- to, the original conditions, whgn the number is so ascertained, the dutiable weight is ascertained by actual weighing-.</p>

<p>1. Foreign Marriage — Validity.</p> <p>A marriage by a Russian Jew in Russia with his niece, though lawful in Russia, will not be recognized as valid in Pennsylvania, where a continuance of the relation would expose the parties to indictment in the criminal courts.</p> <p>2. Aliens — Exclusion.</p> <p>Where a naturalized citizen was married in Russia, but the marriage, though valid there, was illegal in the United States, his alleged wife and their child, who are likely to become public charges, are properly ordered to be deported on their arrival at a port in the United States.</p>

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

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

<p>1. Trade-Marks — Infringement.</p> <p>Tiie trade-mark “Grape-Nuts,” under which name a cereal food is sold, is not infringed by tbe name “Grain-Hearts,” under which a similar food is sold; the latter name pot being so displayed and associated on the package as to make it substantially identical with the former trademark.</p> <p>2. Unfair-Competition in Trade.</p> <p>The package, in which complainant sells a cereal food under the name “Grape-Nuts” is not so imitated by defendant in the sale of a similar food under the name “Grain-Hearts” as to constitute unfair competition in trade, though there is similitude in the terms in which the foods and their qualities are described; the wrappers being of a different shade of yellow, complainant’s trade-mark appearing on the package in a single place in a black band and yellow letters, and in a straight line, while defendant’s appears in four places, in a diagonal band, in red, white, and blue; with a red heart.</p>

<p>1. Patents — Infringement—Electric Car Trucks.</p> <p>The Brill patents, Nos. 445,308, 401,062, 493,234, 503,121, and 507,207, relating to trucks for electric railroad cars, known as the “Maximum Traction Truck,” considered, and held not anticipated, valid, and infringed.</p> <p>2. Same — Suit for Infringement — Costs.</p> <p>Where a complainant alleges the infringement of a number of patents by the conjoint use by defendant of the several inventions, but, after defendant has taken his testimony on the issues joined, abandons a large proportion of the claims sued on, he may properly he taxed with a proportionate part of the costs, although successful as to the remaining claims.</p>

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

<p>1. Shipping — Duty op Care in Navigation.</p> <p>Iu the navigation of the Hudson river, which is open to all craft, it is as much the duty of boats which from their size, shape, or unseaworthy condition are unable to safely withstand the ordinary perils of such navigation, such as the swell caused by large steamers, to avoid placing themselves iu exposed positions, as it is of such steamers to exercise care as to their rate of speed.</p> <p>8. Same — Negligent Navigation — Evidence Considered.</p> <p>Evidence held insufficient to sustain the allegation of a libel that the loss of a canal boat, which was crushed between a dock and other craft moored outside of her, by the force of the swell caused by a passing-steamer, was due to the negligent speed of the latter, but to show that the steamer was properly navigated, and the fault was that of the canal boat, which was old and unseaworthy, and heavily loaded, and was removed from a place of safety, and placed in a dangerous position, next the dock, close to a narrow channel in the Hudson river, with two other loaded boats outside, at a time when it was known that the steamer would soon pass.</p> <p>8. Same — Libel por Sinking Boat at Dock — Laches.</p> <p>The conduct ol' the owner of a canal boat sunk at a dock by the swell from a passing steamer, in taking no measures to raise her, and in making no claim against the steamer for two years thereafter, is a matter which may be properly considered as casting suspicion on the merit of the claim that the loss was due to the steamer’s negligence.</p>

<p>Salvage — Aw abd.</p> <p>Wliere a tug hauled a ferryboat out of a slip at the time when danger from a fire appeared threatening, and it was an act of prudence to move such boat some distance away, an award of salvage of $200 will be granted, the tug itself being in no danger, and the service being neither prolonged nor laborious.1</p>

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

Cross Appeals from the Circuit Court of the United States for tbe Northern Division of the Northern District of Illinois.

The Tennessee Central Railroad Company is a Tennessee corporation, authorized to construct and operate about 60 miles of railroad beginning at Monterey, in Putnam county, Tenn., and extending to a junction with the Cincinnati Southern Railway fit or near Glen Mary. In September, 3893. said railroad company entered into a contract with the appellant, J. II.

Newman in and to an undivided one-third interest in a large body of unimproved mountain land, the title to which is now in the defendant corporation, the Central Land & Coal Company. Held: subject to the following uses and trusts: (1) The said Morris Schwerin and his wife are to have and own an undivided two-thirds (%) interest in said lands, and the said Mrs. Mamie Newman is to own the other undivided one-third interest in said lands.

Appeal by the importers from a decision of the board of United Btates general appraisers, which affirmed the classification by tbe collector of customs as to the importations in question.

<p>Patents — Infringement.</p> <p>The Anderson patent, No. 412,155, claim 8, for improvement in the durability of trolleys for electric railway service, held not anticipated, and infringed. 1</p>

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

<p>Contracts — Parties Bound.</p> <p>A part owner of mining claims, whose interest was not of record, but who assented to the bonding of the same by Hie record owner, has no standing' in equity to repudiate a conveyance of his interest by his co-owner in accordance with the terms of the bond, on the ground of a private agreement between them that sucli conveyance would not lie made unless the purchaser also took certain other claims bonded separately.</p>

<p>On Motion to Retax Costs.</p>

<p>B ankrüptcy — Preferences—Separate Claims — Intent.</p> <p>Under Bankr. Act 1898, § 60, cl. a, providing that a person shall he deemed to have given a preference if, being insolvent, he has made a transfer of property, and its effect will he to enable a creditor to obtain a greater percentage of his debt than other creditors of the same class; and section 57, cl. g, providing that the claims of creditors who have received preferences shall not be allowed unless such creditors surrender their preference, — one who during insolvency of the debtor, and within four months of bankruptcy proceedings, has had claims of his paid, has received a preference, whatever the intent, so that, without surrender of it, other claims of his cannot be allowed.</p>

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

<p>1. Patents — Anticipation—Telephones.</p> <p>The Berliner patent, No. 463,569, for a combined telegraph and telephone, in so far as it claims broadly the method of producing in a circuit electrical undulations by variations of pressure between opposing electrodes in constant contact, was anticipated by the prior Bell liquid transmitter; and, if invention be conceded to the application of such method by substituting a solid metal electrode for the mercury electrode of Bell, it was anticipated by the inventions of Edison.</p> <p>2. Same.</p> <p>Such patent is void for the further reasons that its claims are so broad in their language as to include every transmitter of the general class, of which Bell was the first inventor, and. also _ because the invention claimed is not the one described in the application, but was expressly disclaimed. The patent was issued in 1891 on an application filed in 1877, which was subsequently changed by purported amendments to one for an entirely different invention which had been anticipated and perfected in the meantime by other inventors.</p> <p>3. Same — Amendment of Application — Scope of Kigiit.</p> <p>The right to amend or to complete an application, under Kev. St. § 4894, does not give the right to transform the application by amendment into one for a different invention; and where the essence of the invention is not in the apparatus shown, but in its mode of operation, a new principle or method of operation cannot be introduced by amendment, and be sustained on the original application, to interfere with other inventors who have entered the field in the meantime, although the apparatus itseif is left unchanged.</p> <p>4 Same — Effect of Amendment.</p> <p>Berliner’s application on which his patent No. 403,569 was issued described instruments of which the applicant stated that they would reproduce “any musical sound uttered in the neighborhood of either of them; but for the reproduction of special sound, such as speech, they are not adapted.” The apparatus itself was old, and the only novelty claimed was in applying it to the use specified. Held, that the applicant could not, by an amendment striking out the disclaimer as to the transmission of speech by means of such apparatus, transform the application into one for a speech-transmitting telephone, which was an invention he had not in fact made at the date of the application.</p> <p>5. Same — Mistake in Application.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting upon complainant to establish the fact that statements in the Berliner application on which patent No. 463,569 was issued were made through a clerical mistake, which authorized their being stricken out by an amendment.</p> <p>6.</p> <p>Same — Invention—Evidence Considered.</p> <p>Evidence held insufficient to establish that Berliner had in fact made the invention of a telephone for transmitting speech claimed in patent No. 463,569 at the date of the filing of the application, which expressly disclaimed such invention.</p> <p>7. Same — Experiments by Experts.</p> <p>That the apparatus of a patent is capable of being used as a speaking telephone, as shown by experiments made by experts, is not sufficient to prove that the patentee had succeeded in using it successfully for that purpose at the time of his application, so as to entitle him to claim such use as his discovery, where it is disclaimed in tile application, or to show that the disclaimer was made through mistake; and, to give such experiments evidential value, it must be shown that they were made under thé same or similar conditions as those existing in experiments conducted by the patentee.</p> <p>& Same — Caveat as Evidence.</p> <p>A caveat made without experimental knowledge, and the statements in which are merely of possibilities, and are not based upon scientific or experimental knowledge, does not constitute a reduction to practice which will support a claim to invention.</p> <p>9. Same — Double Patenting.</p> <p>The Berliner patent, No. 463,569, claim 2, for a telephone transmitter, was anticipated by patent No. 233,969 to the same patentee, issued on a division of the same application, and which, in claim 4, covers a system consisting of the same transmitter in connection with a receiver, but in which such transmitter performs the same function as with any other receiver, and is applied to its appropriate and intended use; a receiver of some kind being essential to its operation.</p>

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

<p>Appeals from the Circuit Court of the United States for the Southern District of Florida.</p>

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

<p>On Petition for Rehearing. For former opinion, see 107 Fed. 851.</p>

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