Volume 110 — Federal Reporter

<p>FEDERAL JURISDICTION — DIVERSE CITIZENSHIP — CORPORATIONS.</p> <p>A corporation of one state is not, for the purpose of federal jurisdiction, under Act Cong. March 3, 1887, as amended by Act Cong. Aug. 13, 1888, an inhabitant or resident of another state in which it has a usual place of business.1</p>

<p>1. JURISDICTION OP FEDERAL COURTS — POWER TO DETERMINE.</p> <p>The federal courts must determine for themselves the limits of their jurisdiction, and as to such question the supreme court of the United States is the final arbiter.</p> <p>2. Same — Federal, and State Courts — Priority op Jurisdiction.</p> <p>Wherever a federal court and a state court have concurrent jurisdiction, the tribunal whose jurisdiction first attaches holds it to the exclusion of the other until its duty is fully performed and the jurisdiction involved is exhausted; and, when a federal court has so acquired priority of jurisdiction, it is its duty to protect such jurisdiction by injunction, if necessary, and that right is not affected by the eleventh constitu- ' tional amendment, withholding from its jurisdiction suits against states, nor by -Rev. St. § 720, prohibiting the issuance of injunctions to stay suits in a state court.</p> <p>8. Same — Suits against State.</p> <p>A suit to enjoin individuals acting as officers of a state from enforcing an unconstitutional enactment to the injury of the rights of complainants is not one against the state, within the meaning of the eleventh constitutional amendment, but is one within the jurisdiction of the federal courts.1</p> <p>4. Same — -Prior Federal Jurisdiction — Protection by Injunction.</p> <p>A federal court in a suit by stockholders of a railroad company issued a preliminary injunction restraining such company from putting in force a schedule of rates prescribed by a state statute alleged to be'in violation of the constitution of the United States, and also enjoining officers of the state, who were made defendants, from instituting proceedings to enforce such statute. In related suits against the same state officers, involving the same questions, and by stipulation to be determined on the same evidence, appeals were taken to the supreme court of the United States, which held the statute unconstitutional, and also that the suits were within the jurisdiction of the court, and the injunctions granted therein were made permanent. An attorney general of the„state, who subsequently succeeded to the office, instil uted suits in the name of the state in state courts against the railroad company defendant in the first-named suit, in which there had been no final hearing, to recover heavy penalties for its failure to put in force tlie schedule of rates prescribed by such statute. Held, that such suits were an interference with the prior acquired Jurisdiction of the federal court, and, on proper application therefor, its injunction would be extended to the new attorney general, to restrain him from further prosecuting them until its own determination of the pending suit.</p> <p>5. Kes Judicata — Judgment Declaring Unconstitutionality of Statute.</p> <p>Where the supreme court of the United States has determined that a state statute is unconstitutional, and has affirmed a decree perpetually enjoining the attorney general of the state from enforcing it, such adjudication of the invalidity of the statute is conclusive upon an attorney general who subsequently succeeds to the office.</p>

In Equity. In 1899 suit was instituted in this court in the above-entitled cause to foreclose mortgages given by the Kansas City, Pittsburg & Gulf Railroad Company, executed to the complainant as trustee, securing bonds of the company to the extent of about $23,000,000. .Receivers were appointed by the court, and the property placed in their hands pending the foreclosure pi’o-ceedings.

<p>L Federal Courts — Jurisdiction—District of Suit.</p> <p>Under section 1 of the act of congress of August 13, 18S8, amending act of March 3, 1887, where the jurisdiction of a federal court is dependent on the fact that the action is between citizens of different states the suit can only he brought in the district where all the plaintiffs reside, or in the district where all the defendants reside who are indispensable or necessary parties.</p> <p>2. Same — Stockkoi.dkr’s Suit.</p> <p>A stockholder who is a citizen and resident of Pennsylvania cannot maintain a suit in a federal court in the district of New Jersey against the corporation, which is a citizen of New Jersey, and its directors and third persons, who are citizens and residents of another state, to set aside or enjoin the enforcement of an alleged illegal contract made by tlio directors on behalf of the corporation with their co-defendants, where timely objection is made by the nonresident defendants, who in such case are indispensable parties.</p> <p>3. Same— Kuits of Local Nature.</p> <p>A suit by a stockholder against the corporation and others to restrain the enforcement of a contract by which the corporation sold stock to its co-defendants is not one to» “enforce any legal or equitable lien or claim” against the stock, within the meaning of Rev. St. § 738, authorizing the bringing in of nonresident defendants in such suits.</p>

<p>Federai, Jurisdiction — Citizenship— Intervention.</p> <p>The only ground , for federal jurisdiction in a suit to establish complainant’s right as an heir of deceased to an undivided interest in land, being the' diverse citizenship of complainant and defendants, jurisdiction of the dependent controversy between interveners, also claiming undivided interests as heirs of deceased, and defendants, all citizens of the same state, is ousted hy dismissal of the ease so far as involving any interest of complainant.</p>

<p>Removat, or Causes — Riling Record before Succeeding Term — Jurisdiction to Make Ex Parte Orders.</p> <p>Where proceedings against landowners for the condemnation of land under the eminent domain, statutes of a state are removed by defendants into a federal court, the adverse party may file the record therein at any time, without waiting until the first day of the succeeding term; and thereupon it is competent for the judge to make such ex parte orders as are conformable to the state practice in like cases, such as fixing a time for the appointment of commissioners, etc.</p>

<p>Equity — Sufficiency of Bill — Multifariousness.</p> <p>A bill wMcli alleges that complainant was -granted an exclusive license within certain territory hy the owner of a patent for a valuable consideration; that one of the defendants succeeded to the ownership of the patent and the rights and responsibilities of the licensor under the contract; that such defendant owns and controls the other defendants, which are corporations; and that all the defendants, conspiring together for the purpose, have violated the contract by invading the territory of complainant. — states a cause of action for equitable relief, and is not demurrable on the ground of multifariousness.</p>

<p>Appeal — Appealable Orders — Denting Leave to Intervene.</p> <p>Where an order granting conditional leave to intervene is set aside before the condition has been complied with, the case stands the same as though the application had been denied in the first instance; and when the showing made by the petition is such that the granting or refusing of leave to intervene was discretionary, the petitioner not being entitled to such leave as a matter of right, the order refusing leave is not appealable.</p>

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

<p>Mortgages — Insurance by Mortgagee — Insolvency op Company.</p> <p>A mortgage contained a covenant by the mortgagors to insure for the protection of the mortgagee, and a further provision that if they failed to insure the mortgagee might do so, and charge the premium paid to them. They did not insure, and the mortgagee procured a policy, the loss payable to itself, and rendered a bill for the premium paid to the mortgagors, who, after some delay, paid it. The propeity subsequently burned, and the insurance company proved insolvent, although the mortgagee had no knowledge of such fact, and was not chargeable with negligence in that regard. Held, that such facts constituted no defense to the enforcement of the mortgage debt, the provision of the mortgage not being a covenant to insure on the part of the mortgagee which the mortgagors could bring into force by their own default, but merely an option, in the exercise of which the mortgagee acted as agent for the mortgagors, and its action was ratified by the repayment of the premium without objection to the company selected, of which the mortgagors were chargeable with notice if they failed to make inquiry.</p>

<p>FOREIGN Corporation — Insolvency—Receivers— Assets in Hands of State Treasurer,</p> <p>Tiie. Republic Savings & Loan Association, a corporation of New York, having- become insolvent, proceedings were there instituted for its dissolution, and the forfeiture of its rights, franchises and privileges, in the course of which proceedings temporary receivers were appointed. Subsequently the temporary receivers were appointed by this court ancillary receivers for Delaware, and applied for a rule on the state treasurer of Delaware to show cause why he should not be authorized and directed to assign to them certain securities, to be held subject to the order of the court. These securities had been assigned to the state treasurer pursuant to an act of the general assembly as the con-ditidn on which the corporation should be permitted to transact business in Delaware. By the act it was provided that such securities were to be held “for the benefit of the shareholders * * * residing •in this state”; that they were to remain with the state treasurer “in trust to secure any judgment” which should be obtained against the ■corporation upon which execution might lawfully be issued against it; and that the state treasurer and his successors in office should “receive ’ and thereafter retain such deposit under this act in trust for the purpose hereof,” with power in the corporation to withdraw such securities only pn “substituting therefor others of equally good character and value to the satisfaction of the state treasurer.” It did not appear that the corporation had been dissolved. Held, that the application for the rule must be denied.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>The bill was by the appellant, a citizen of the state of Wisconsin, against the appellee, a citizen of the state of Michigan, to have it decreed that ap-pellee had no right, title, interest or claim, in certain lands in Bayfield county, Wisconsin, in the bill described, but that the same should be decreed to have been held by him in trust for the appellant; and for an injunction against the sale of the same, or waste' of the timber thereon.</p> <p>The bill alleges that on the 13th of April, 1894, the lands in question were surveyed public lands of the United States not included within any military, Indian or other reservation, and chiefly valuable for timber; that they had not been offered at public sale; did not constitute any mining claim under the laws of the United States; did not contain gold, silver, cinnabar, copper or coal; did not include the improvements of any bona fide settlor; had not been selected by any state under fhe laws of the United States, donating lands for internal improvement, education or other purposes; and were lands proper to be entered as public lands under the provisions of the Act of Congress of June 3rd, 1878, as extended by the Act of August 4th, 1892.</p> <p>The bill further alleges that on the date above named appellant, being then entitled to enter such lands, filed with the register of. the land district at Ashland, Wisconsin, a written statement in duplicate, designating by legal subdivision the lauds in question; and setting forth that the same were then unfit for cultivation; were uninhabited, and chiefly valuable for their timber; and contained no mining or other improvements. The statements further set forth that the appellant had made no other application under the act of Congress; that the proposed purchase was not for speculation, but was in good faith, and to be appropriated to her own exclusive use; that she had not directly or indirectly made any contract in any way or manner with any person by which the title she might acquire should enuro, in whole or in part, to the benefit of any person except herself; and that the lands, as she verily believed, contained no valuable deposits of gold, silver, cinnabar, copper or coal. This statement was duly verified by the oath of the applicant before the register of the land office.</p> <p>The bill avers that all the allegations of this statement were true; that after publication of the requisite statutory notice the appellant appeared at the land office, and submitted her proofs, requesting that her claim be allowed, and offering, then and there, to pay the price provided for in the act of Congress; but that one Toole (who had subsequently made an application for the same lands, but had, for a valuable consideration, relinquished the same to the appellant) filed a protest, setting forth that appellant had never been upon or seen the lands, or any part thereof, at the time of her application, and that he, said Toole, had filed an application under the act of Congress for said lands. The bill avers, further, that appellant furnished to the register of the land office satisfactory evidence that the notice had been duly published as required by the'act of Oongress; and .that the land was of thp character .contemplated in the act, was unoccupied and without improveflient, and contained nó valuable deposit of gold, silver, cinnabar, copper or coal.</p> <p>The bill further avers that such proceedings were thereafter had in the land office, ’ and in the general land office <jf the United States, that appellant was “erroneously and unlawfully held not entitled to enter the lands,” iip'on the reason stated that she had not, before making her application, ■ made a personal examination of the land, and that she did not offer to pay for the samé with her own money, blit obtained such money from her hus- ■ band.</p> <p>Subsequently, as the bill avers, a patent for the land was issued to Toole, - añd the title went through mesne conveyances from him to the appellee, ■ each grantee having full notice of the right and interest of appellant in the lands, and not being a bona fide purchaser 'thereof for value.</p> <p>To this bill a demurrer was filed qnd sustained, and the bill dismissed (102 Fed. 716), and from this decree the appeal is prosecuted.</p> <p>The assignment of error is that the Circuit Court erred in sustaining the demurrer, and in dismissing the bill.</p>

<p>Equity — Suit for Fraud — Evidence Considered.</p> <p>Evidence lield insufficient to establish fraud on the part of defendant national bank in the organization or operation of a corporation which was formed by complainant and the bank’s co-defendants, who were its stockholders, to take over the property of two insolvent lumber companies, of which both complainant and the bank were creditors, which would afford the basis for any equitable relief against the bank.</p>

<p>Equity Jurisdiction — Suit to Declare Contract — Impossibility of Granting Substantive Relief.</p> <p>A court of equity Las no jurisdiction to decree that a complainant is entitled, under an-agreement with defendant, to a certain per cent, of the net profits of a contract which is being executed by defendant, and to declare a trust therein in his favor, where the work under the contract has not been completed, and it is not alleged that defendant has been guilty of any fraud or mismanagement or is insolvent; such court having no' power to entertain, a suit to determine the fact whether or not the agreement to share profits was made, which is cognizable at law, nor to declare the status of the parties with reference to the contract, where no ground is shown which would warrant the granting of any substantive relief.</p>

<p>Discovert— Grounds — Sufficiency of Pleading.</p> <p>A complainant is not entitled to a discovery on a hill setting ,out a contract, and alleging an indebtedness from defendant thereunder, where the contract is on its face unilateral, and no facts are alleged to show any consideration for such indebtedness.</p>

<p>Reformation of Contract — Grounds—Mistake.</p> <p>A written contract made after long negotiation, and the terms of which, after it was-written, were fully considered and discussed before it was signed, cannot be reformed by a court of equity, in the absence of fraud, to express an intent different from that which its language imports, unless it is clearly shown to have been the intent of both parties, and that the mistake was mutual. ’ '</p>

<p>Corporations — Suit by Stockholder — When Maintainable.</p> <p>To entitle a stockholder in a corporation to maintain a suit In equity in a federal court for the cancellation of stock alleged to have been fraudulently issued by the directors, the bill must show a demand on the corporation, or its receiver, where one has been appointed, to sue, and a refusal, as required by equity rule 94, and also that complainant was a stockholder at the time of the transaction complained of, or that his shares devolved on him since by operation of law.</p>

<p>In Equity. Suit by Indian to recover lands selected for allotment in severalty.</p>

In Equity. The amended bill in this case shows: That on the 11th day of July, 1870, Elijah J. Woolage died in the county of Sebastian and state of Arkansas, seised and possessed of 820 acres of land situated in that county, and leaving the following will, which was duly probated on the 12th of September, 1870: “In the Name of God, amen!

<p>1. Mortgages — Foreclosure by Trustee — Intervention-.</p> <p>Individual bondholders have a right, in a suit by the trustee to foreclose a mortgage securing bonds, to intervene for the purpose of contesting the validity of .certain of the bonds.</p> <p>2. Same — Bonds Secured.</p> <p>Under a mortgage to secure first mortgage bonds, providing that they can be issued only for the purpose of constructing the railroad of the mortgagor, bonds issued on a contract for construction cannot participate in the proceeds of the foreclosure, — the work not having been performed under the contract, and some of them returned to the mortgagor having been voted by it to persons in payment of services as officers and attorneys, — except as they came into the hands of purchasers for value and without notice.</p> <p>3. Same — Prior Liens.</p> <p>A claim which a railroad company agrees to pay a person out of the proceeds of the sale of the first bonds sold by it does not take precedence as to the proceeds under foreclosure of the mortgage thereafter given to secure bonds issued for the construction of the road, but stands on the same Basis as that of any general creditor.</p> <p>4. Same — Proof of Ownership of Bonds.</p> <p>A person having intervened in a suit to foreclose a mortgage securing bonds, and having alleged by his bill of intervention that he was the owner and holder of certain of the bonds, and his ownership having ■been put in issue, and a reference made as to the issue raised by the pleadings, and testimony introduced that he was not the legal owner, he must prove his ownership, and cannot rely on his mere possession of them to maintain his claim.</p>

<p>1. Production of Papers — Application.</p> <p>In view of the discretionary nature of the power of the court under section 724, Rev. St. U. S., summarily to give judgment of non-suit or by default, as the case may be, the court will not favorably act on any application for production ambiguous on. its face or which does not clearly conform to the requirements of the section.</p> <p>2. Same — Non-Compliance with Order.</p> <p>In case of non-compliance by one party with an order of production the remedy of the other is restricted to the obtaining, in the discretion of the court, of a judgment of non-suit or by default, as the case may be, and does not include power to compel production by attachment.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. Whit of Error — Review of Evidence.</p> <p>The question whether there ivas any evidence before the circuit court in an action at law having a legal tendency to prove the facts found by it may be considered on writ of error, this being a question of law.</p> <p>2. Gift — Delivery.</p> <p>It is immaterial that delivery to a donee is while the donor is unconscious; he having, while capable of transacting business, and for the purpose of consummating the gift, directed the delivery to be made.</p>

<p>L LESSORS — Defective Building — Liability to Licensees op Lessees.</p> <p>Lessors oí a building, not having known of a defect therein whereby tlie ceiling fell, are not liable to persons present therein by license of the lessees and injured thereby.</p> <p>8. Lessees — Defective Building — Liability to Lessees.</p> <p>Lessees of a theater are not liable to persons therein by their license injured by the falling of the roof from the giving way of a truss rotted at tlie end by water from the roof leaking about a spout passing down the wall; the only thing giving notice thereof being the leaky condition of the roof, and the stains and appearance of dampness on the outside wall, and this condition having commenced long before the lease.</p>

<p>Sur Motion by Defendant for a New Trial.</p>

<p>On Motion to Set Aside Service of Process.</p>

<p>Contract — Repudiation—Actions nor Instalments.</p> <p>Where one repudiates a contract by which he is bound to make certain payments at certain times, the other party is not bound to sue for damages as for a breach, or to wait till all tbe installments are due, but may bring separate actions for installments as they become due.</p>

<p>CONVEYANCE — TlTI/E—MORTGAGE—ÜSURY.</p> <p>Under Code Ga. § 2892, providing that all titles to property made as a part of a usurious contract are void, an assignment of a bond for title, made in terms to secure an indebtedness to the assignee, is, in effect, a mortgage, and valid, though the loan is usurious, since it does not convey a title.</p>

<p>Petition for Review of Order of the District Court of the United States for the Western District of Arkansas, in Bankruptcy.</p>

<p>In ^Bankruptcy. On application to set aside adjudication.</p> <p>The following are the findings and opinion of the referee, William D. Stephens:</p> <p>Findings.</p> <p>(1) That on tbe 14th day of April, 1900, a creditors’ petition was filed herein, praying that said corporation be adjudged bankrupt, and on May 1st thereafter an order was made by- said court adjudging said corporation a bankrupt, and referring said cause to me as referee. That on June 10, 1900, tbe petition of T. A. Brown was filed herein, praying to have the said order of adjudication set aside, and that said petitioner, Brown, was informed of tbe pendency of the proceedings in bankruptcy herein on May 14, 1900. (2) That more than six months prior to the commencement of proceedings herein the said corporation entered into a contract with the owner of certain mines and a smelter situated in the desert region of Southern California, and one hundred miles from the nearest point on a railroad, whereby said corporation was placed in possession of said mines and smelter, and agreed to mine and smelt the ore of said mines in said smelter, paying the owners 33% per cent, royalty therefor. Said company entered into the performance of said contract, and continued to mine and smelt said ore up to about March 12, 1900. Said mines were about 3% miles from the smelter, and the ore was hauled to the smelter, and after being smelted the bullion or pig resulting from the smelting, consisting of lead and silver, was hauled to Manvel, on the railroad, and thence transported to Kansas City, Missouri, to a refinery, at a cost of $32 per ton for transporting by wagon and rail. The refiners separated the different constituent metals in the pig or bullion, and paid the shippers the market value thereof, after deducting the charge for refining. There were two or three men employed in mining the ore, which cost seventyfive cents per ton, and there were twelve or fourteen men employed at smelting, — the cost of smelting being $8.94 per ton. The business of mining this ore could not have been successfully carried on without the smelter, neither could the business of smelting have been successfully earned on without ore from the mines. The company, in order to supply the workmen with food, kept a boarding bouse at the smelter, at which the employes were boarded at a charge of |1.00 each per day, and also kept and sold merchandise, such as was necessary or usual in such places, for sale to the employés and others who wished to purchase. The keeping of such boarding house and the keeping and selling of such merchandise is usual under the circumstances mentioned, and the mining and smelting could not be well carried on without it. Nor would the boarding house and merchandise have been kept without the mining and smelting business also being done. The amount derived by the company from the boarding house and sale of merchandise was about $000 per month. The ore of the mines was of no value until it was smelted, owing to remoteness from the railroad and from market; and the bullion or pig, while it had a market value there proportionate upon the assay, could not be fully realized upon until refined, which refining could not be done there. The company was not the owner of any mine, and mined only the ore from the mines mentioned, and smelted no other ore than that from those mines. (3) I find the fact to be that the principal business of said corporation was that of smelting, and that the profits arising from its business arose principally from the smelting, and to a less extent from the keeping of a hoarding house and selling of merchandise, and that there was no profit derived from mining alone, hut that said mining and the keeping of a boarding house and merchandise, and selling of merchandise, -were Incidental to and necessary to the carrying on of the smelting business, and that the mining was done in order to smelt, and that the smelting was not done in order to mine. (4) That, as a matter of fact and law, the said corporation was engaged principally in manufacturing, and is subject to the provisions of the bankrupt act. 15) That said petitioner, T. A. Brown, did not exercise due diligence in presenting or filing his petition herein, hut was guilty of laches and unreasonable delay in said respect.</p> <p>Conclusions of Law.</p> <p>As conclusions of law from the foregoing, the referee finds that said corporation was engaged principally in manufacturing, and Is subject to the provisions of the bankrupt act as such manufacturer, and that,the petition of the said T. A. Brown should be dismissed at his cost, and that he is guilty of laches and unreasonable delay in presenting or filing his petition herein, and that judgment bo entered in favor of Gregory Perkins, Jr., et al., against the petitioner, T. A. Brown, for costs.</p> <p>Dated February 7, 1901.</p> <p>Opinion.</p> <p>From the findings herein it appears that the corporation was engaged principally .in smelting, and it becomes necessary to determine whether smelting is manufacturing, under the provisions of the bankrupt act. Smelting is a process by which ore is placed in an incombustible receptacle, with alternate layers of ore (sometimes mixed with fluxes) and coke. It is then fired, and the ore, being melted, is run off into a receptacle apart from the slag or dross. The different metals in the ore are not separated from each other in the process, but require refining, which is a process by which they are separated. In mines situated as the one mentioned in the findings, it is not usual to refine the bullion or pig at the smelter, bnt it is shipped to large refineries remote from the smelter; the refiners paying the market value of the refined metals after deducting charges for refining. The word “manufacture” is a compound word of Latin origin, derived irom the words “manu” {ablative), by hand, and “facero,” to do, to make, to form; but the meaning is not confined to that which is done by hand alono, bnt by machinery as well. The definition given by Webster is, to make or fabricate from raw materials by the hand, by art or machinery, and work into form convenient for use. Worcester has, in substance, the same definition. This definition must be taken as the popular and usual meaning of the word. Mr. Brande defines “manufacture” as a term employed to designate the changes or modifications made by art or industry in the form or substance of material articles in the view of rendering them capable of satisfying some want or desire of man; and manufacturing industry to consist in the application of art, science, or labor to bring about certain changes or modifications of already existing materials. He includes under the term “manufacture” all brandies of industry, with the exception of fishing, hunting, mining, and such industries as have for their object to obtain possession of material products in tlio state in which they are fashioned by nature. He says that the term is generally applied to those departments of industry in which the raw material is fashioned into desirable articles by art or labor without the aid of the soil, but that there is no real good reason for such limitation, and that it is obvious from the slightest consideration 1hat agriculture is nothing but a manufacture, for the business of the agriculturist is to so dispose of the soil, seed, manure, or other materials that they may supply him with other and more desirable products. Brande, Ene. tit. “Manufacture”; 14 Am. & Eng. Enc. Law, p. 257. Has the corporation here, by smelting, made or formed any tiling useful? It has changed the form of the ore, by eliminating useless matter, into that which is useful; and the product has another name, being ore no longer, but “pig” or bullion, and having a market value depending upon its assay. In a strict sense, man can create nothing. He can only alter the form of existing things. The ore, when taken from the mine by the process of mining, is changed neither in form nor in substance, unless breaking may be termed a change of form. It is ore still. But when smelted it is ore no longer, in form, and the substance is altered by taking away some of its component parts. There has been alteration, and that by human hands and machinery. To my mind, it comes clearly within the popular definition of “manufacturing.”</p> <p>What light do the decisions of the courts throw on the subject? It has been decided that mining is not manufacturing, and this is odvíous. If the corporation had been engaged in mining alone, there could be no doubt but that the corporation was not a manufacturer. One may engage in mining without engaging in smelting, or in smelting without mining. ’ In fact, I think the two things are not generally done by the same persons. The great smelters of the country, such as those, at Denver and at San Francisco, and at Swansea, in Wales, if I am correctly informed, do only custom work, and do not mine their own ore. In the case of Rogers v. Danforth, 9 N. J. Eq. 289, the court say: “What is the definition for a forge or furnace for the manufacture of iron? For, if there is a definition comprehended and understood alike by scientific men and by mechanics acquainted with the business referred to, such definition ought to control the court in its construction of this covenant. What is such a forge or furnace? An establishment or mechanical contrivance by which iron is made or manufactured from the ore. From what is iron manufactured?. It is manufactured from ore.” See, also, the same point, Attorney General v. Lorrnan, 59 Mich. 157. 26 N. W. 311, 60 Am. Rep. 287, and Lawrence v. Allen, 7 How. 785, 12 L. lid. 914. I can see no distinction in principle between these cases and the one at bar; the only difference in fact being that one is iron ore, and the other lead and silver. Both are converted by heat into a mass, which is not as yet worked into its final form for use. The following have been held to be manufactures: Animal charcoal, produced by burning bone, and bonedust, produced by pulverizing it. Schriefer v. Wood, 5 Blatchf. 216, Fed. Cas. No. 12,481. Salt, when produced by boiling or evaporation. Id. Producing and supnlying illuminating gas. Nassau Gaslight Co. v. City of Brooklyn, 89 N. Y. 409. The tanning of leather. City of New Orleans v. Le Blanc, 34 La. Ann. 597. Ice, when made by artificial means. People v. Ice Co., 99 N. Y. 181, 1 N. E. 669. Timber split into staves, or into long pieces designed for shovel handles. U. S. v. Hathaway, 4 Wall. 404-4OS, 18 L. Ed. 395. Reeds which have been cut into square form. Foppes v. Magoue fC. C.) 40 Fed. 570. The slaughtering of hogs, and converting the flesh into bacon, Engle v. Sohn, 41 Ohio St. 691, 52 Am. Rep. 103. A flour mill furnished with a middlings purifier, bran duster, belting, and other machinery. Carlin v. Assurance Co., 57 Md. 515, 40 Am. Rep. 440. See the definition given by the court in this case. “Under the bankrupt law, one who prepares lumber, the growth of his own land, for market, and sells it, is a manufacturer, within the meaning of the bankrupt act; and the land may almost be said to be incident to the lumber which usually forms its chief value, and the manufacture itself is the main source of profit.” In re Chandler, 1 Lowell, 478, Fed. Cas. No. 2,591. The above cases, analogous in principle to the one under consideration, would seem clearly to establish the law to be that smelting, under the circumstances in this case, is manufacturing. But one case was' cited by counsel where the contrary was held. In re Rollins Gold & Silver Min. Co. (D. C.) 102 Fed. 983, in which the referee, in an obiter dictum, declares the law to be that smelting is not manufacturing. He gives no reason for such rule, nor do the authorities bear him out. I therefore hold that smelting, under the circumstances in this case, is manufacturing.</p> <p>The objection by Mr. Dunning, of counsel for respondent, to admission of the judgment roil in the case of T. A. Brown against the Tecopa Mining & Smelting Company, is overruled, and said copy of the judgment roll is admitted in evidence.</p>

<p>In Bankruptcy. On petition of Mrs. Millie Garner, wife of the bankrupt, against his trustee.</p>

<p>Bankruptcy — Chattel Mortgage — Validity against Creditors.</p> <p>A chattel mortgage given by. a merchant on his stock in trade to a bank, he retaining possession as before, and from the proceeds paying his living expenses and debts in general, no attempt being made to live up to the provision that he should make daily deposits of all sales to apply on the debt to the bank, is within Bankr. Act 1898, § 67e, providing that incumbrances of property made by one adjudged a bankrupt, within four months prior to the filing of the petition, with intent and purpose on his part to hinder, delay, or defraud his creditors, shall be void as against them.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. Hearing on the claim of R. E. Rogers to be preferred as a creditor to the amount of $563, due for wages.</p>

<p>1. Bankruptcy — Verification of Petition.</p> <p>Petition in bankruptcy is not subject to motion to dismiss for want of jurisdiction because of failure of one of the petitioners to verify it.</p> <p>2. Same — Assignment for Creditors.</p> <p>An assignment for the benefit of creditors is of itself an act of bankruptcy, though the debtors are not insolvent.</p> <p>3. Same — Partnership.</p> <p>Where a partnership and the individuals composing it make an assignment for the benefit of creditors, the act of bankruptcy is committed by all.</p>

<p>Bankruptcy-Member of Partnership — Selection of Trustee.</p> <p>Bankr. Act, § 5b, providing that the creditors of the partnership shall appoint the trustee, applies only in case of a joint petition; and in case of the separate bankruptcy of one of the members, though all the assets are partnership assets, the separate creditors are entitled to vote.</p>

<p>In Bankruptcy. Review of referee’s decision dismissing so much of bankrupt’s petition to set aside exempt property as relates to two horses, a sucking colt, plow, harrow, hayrake, and cultivator.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Discharge—Findings op Referee.</p> <p>The findings of fact of a referee in bankruptcy on petition for discharge, where a rule of court requires hini to hold the meeting to consider it, will not be disturbed, except for clearly-shown error.</p> <p>2. Same — Report op Referee — Exceptions.</p> <p>In excepting to findings of fact or conclusions of law by a referee in bankruptcy, equity rule 88, requiring the errors to be specifically pointed out, should be followed.</p>

<p>1. Bankruptcy — Assets—Estate Devised.</p> <p>A testator devised certain real estate situate in Pennsylvania to the mother of the bankrupt “for and during the term of her natural life and at the time of her decease to her surviving children equally share and share alike * * * to hold to them, their heirs and assigns, forever.” After the death of the testator and during the lifetime of the life beneficiary, one of her children was adjudged a bankrupt. Held, that he had a vested Interest in the subject of the devise, which passed to his trustee in bankruptcy.</p> <p>2. Same.</p> <p>Mere ability, possessed by one w'ho subsequently becomes a bankrupt, by deed, conveyance, or assignment, or by executory contract, to estop or preclude himself from claiming title to or enjoying property wholly acquired after the execution of such deed or contract, does not constitute “property which prior to the filing of the petition he could by any means have transferred.”</p> <p>3. Same.</p> <p>Where the contingency relates to the event, and not to the person, the remainder-man possesses a right or title which may indifferently be considered or termed a vested right in or to a contingent interest or estate, or a contingent right to a future interest or estate, and such a right is alienable and transmissible to heirs or personal representatives according to its nature, and consequently passes to a trustee in bankruptcy of the remainder-man.</p> <p>(Syllabus by the Court.)</p>

<p>Chinese — Registration— Deportation.</p> <p>Act Cong. Nov. 8, 1893, amending Act Cong. May 5, 1892 (27 Stat. 25), declares it the duty of all Chinese laborers in the United States, entitled to remain there before passage of the act of 1892, to apply within six-months for a certiiicate of residence, and that any neglecting to comply with the provisions of the act and of the act of 1892, or who after expiration of the six months shall be without such certificate of residence, shall be deemed to be unlawfully within the United States, “provided, that no Chinese person * * * convicted * * * of a felony shall be permitted to register under the provisions of this act; but all such persons who are now subject to deportation for failure • * * to comply with the act to .which-, this is an amendment shall be deported.” Held, that a Chinese laborer having a certificate of residence under the act of 1892 is entitled to remain in the country, though he has no certificate under the later act.</p>

<p>Convicts — Good Behavior — Commutation of Sentence.</p> <p>On the assumption that the Pennsylvania act of May 11, 1001, entitled “An act providing for the commutation of sentences, for good behavior of convicts in prisons, penitentiaries, workhouses and county jails of this State, and regulations governing the same,” is by congressional legislation applicable to United States prisoners confined in the Eastern Penitentiary of that state at the time of its enactment, a United States prisoner so confined lias no right to commutation for good conduct in the absence of a report on that subject by the board of prison officials to the governor and action thereon by the latter, with the approval of the designated state officers.</p> <p>(Syllabus by the Court)</p>

<p>Indians — Status of Putallups — Intoxicating Liquors.</p> <p>A Puyallup Indian is not within Act Gong. Jan. 30, 1897 (2 Supp. Rev. St. p. 544), prohibiting the sale of intoxicating liquors to an Indian for whom the United States holds title to land in trust, or who is a ward of the government under charge of an judian'superintendent or agent, or over whom the government, through its departments, exercises guardianship; it appearing only that he has inherited from his mother land in .the Puyallup • reservation patented In 1886, pursuant to the treaty of December 26, 1854 (10 Stat. 1132, art. 6), and though Act Feb. 8, 1887 (1 Supp. Rev. St. [2d lid.] p. 536) §’ 6, confers the right of citizenship on Indians to whom allotments shall be or shall have been made. Section 5, providing that patents shall be issued to the effect that the government holds the land in trust for the Indian to whom it is allotted, applies only to patents thereafter issued.</p>

<p>1. Constitutional Law — Indictment—Jury Trial. •</p> <p>Const. II. S. Amend, art. 5, providing that no person shall be held to answer for an infamous crime unless on a presentment or indictment of a grand jury, and article 6, providing that in criminal prosecutions the accused shall enjoy the right to jury trial, apply to federal and not to state courts.</p> <p>2. Same — Indictment.</p> <p>Const. U. S. Amend, art. 14, does not require an indictment by a grand jury in a prosecution for felony in a state court.</p> <p>8. Same.</p> <p>The state of Indiana having been admitted into the Union "on an equal footing with the original states in all respects, whatsoever,” no right of trial by jury on an indictment in felony cases is guarantied in the courts of that state by the ordinance of July 13, 1787, or Act Cong. May 7,1800, or Act Cong. Feb. 3, 1809, relative to the government of the territory from which such state was created.</p>

<p>1. Navigable Waters — Right of Public Use.</p> <p>It is fundamental law throughout the United States that all navigable waters are common highways, forever free to the use of all citizens of the United States, without any tax, impost, or duty therefor.</p> <p>2. Same — Tm/E to Shore and Soil Under — Rights of States. -</p> <p>The title‘to the shore and soil under navigable rivers below ordinary high-water mark is vested in the state within whose territory it lies, where there had been no valid grant of the same prior to its admission • into the ,Union. Such title, however, does not give an absolute ownership, but is held for the conservation and protection of the rights of the public in the use of the waters of the stream, and subject to the rights of riparian owners.</p> <p>8. Same — Rights op Riparian Owners-Maintenance op Wharves.</p> <p>By long and uniform usage throughout the United States riparian owners on navigable waters have acquired the right to construct wharves reaching from their lands to navigable water. Such right, when exercised for the convenience of commerce, ,and in such manner as not to obstruct navigation, is in accord with the enlarged public policy of modern times, and has been recognized by the supreme court of the United States and by many of the states, including Alabama, where it has been recognized both by legislation and judicial decision.</p> <p>4. Same — Mobile River — Powers op City op Mobile.</p> <p>Complainants were the owners of lands lying on the Mobile river, within the limits of the city of Mobile, by titles derived from the United States through acts of congress confirmatory of prior Spanish grants. . Such titles had in a number of cases been adjudged valid by the supreme court of the United States and by the supreme court of Alabama, and as extending to the channel of the river. Complainants and their predecessors in title had also constructed and maintained for many years wharves extending to the channel of the river, which had at all times been conveyed and recognized by the courts as private property. By act of January 31, 1867, the legislature of the state granted to the city of Mobile the shore and soil under the river in trust, to direct, control, and manage the same as it should deem best for the public good. Held, that complainants were the owners of their wharves, both by virtue of their title to the soil on which they were built, and by their general right as riparian owners to construct and maintain such wharves in accordance with established and recognized usage, and that such act conferred upon the city no right to destroy the value of their property by making such wharves free and prohibiting the charging of wharfage for their use.</p> <p>5. Injunction" — Grounds—Threatened Injury to Property Rights.</p> <p>A court of equity has jurisdiction to grant an-injunction to prevent the threatened invasion by a city of property rights of the owners of wharves within its limits by the adoption of an ordinance prohibiting the charging of wharfage for their use.</p> <p>6. Same — Restraining Action by City.</p> <p>An ordinance was introduced into a city council by its president. It was drawn and recommended by the city attorney and special counsel appointed for the purpose, and recited that the owners of property on the water front who had constructed wharves had obtained possession of the shore and soil under the river, and held the same without warrant of law, and that the public should be notified that the burdens imposed on commerce by the exaction of wharfage by such owners was unlawful, and enacted that thereafter no wharfage should bo charged, except such as might be prescribed by the city, sufficient to keep the wharves in repair. By order of the council the ordinance was published and action thereon postponed until another meeting. Held, that such action of the city constituted an interference with the property rights of the owners of wharves, who were legally entitled to maintain the same and to charge for their use, by denying their rights and inciting the public to dispute the satue, and threatened further injury, which entitled such owners to maintain a suit for an injunction without waiting for the passage of the ordinance.</p>

<p>1. Equity Jurisdiction — Federal Courts — Multiplicity of Sutts.</p> <p>A bill cannot be maintained in a federal court of equity on behalf of several complainants to enjoin the prosecution by defendant of actions at law against complainants on the ground of preventing a multiplicity of suits, where it is not shown that the issues in such actions, as between the defendant in the bill and the several complainants, depend upon the same questions of law and upon similar facts, nor that each of the complainants is entitled, by reason of diversity of citizenship, to sue in a federal court; nor will the fact that defendant has brought two actions in ejectment against a single complainant for separate parcels of land sustain such bill.</p> <p>2. Navigable Waters — Shore Lands in Mobile River — Effect of Grant to City.</p> <p>By act of January 31, 1807, the state of Alabama granted to the city of Mobile the shore and the soil under the Mobile river situated within the boundary lines of the city, in trust to hold, possess, direct, control, and manage the shore and soil therein granted in such manner as it should deem best for the public good. By subsequent decisions of the supreme court of the state construing such act, which are binding in the federal courts, it was held that the effect of the act and its amendments was to vest the city with the legal title to the shore and soil under tho river as trustee; the purpose being to transfer to the city the right and power of the state over such lands, to be exercised by it as the state should exercise them for the general good in preventing the navigability of the river being impaired, and in restraining pur-prestures along the river front below the water line, by prescribing the manner and extent to which wharves and other structures should bo built into and over the water. Held, that the transfer of tille and powers made by such act did not affect the riparian or littoral rights of owners of lands bounded by the high-tide water mark on such river, which remained the same as before.</p> <p>3. Same — Riparian Rights — Construction of Wharves.</p> <p>Riparian rights, when recognized as existing by the law of the state or by local usage, are a valuable property, and among those rights are the right of access to the navigable part of a river from the front of his lot by an owner whose land is bounded by or abuts on the river, and the right to make a landing wharf or pier for his own use or tho use of tho public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public.</p> <p>4. Same — Local Usage — Judicial Notice.</p> <p>The state of Alabama has not, by its legislature or through its supreme court, expressly declared or defined the nature and extent of the rights of riparian owners in the shore and soil under the navigable tide waters of Uie state; but the supreme court has recognized the usage of riparian owners to construct wharves from the earliest times, and a court is authorized to take judicial notice of the extent to which such a usage has notoriously obtained in a given locality.</p> <p>6. Same — Rights in Mobile River.</p> <p>The legislature of Alabama and the city of Mobile, within its jurisdiction and under the powers conferred upon it by legislature, have at all times recognized tho rights claimed and exercised by riparian owners along the Mobile river within the city to construct wharves in front of their property to reach navigable water, by prescribing regulations fixing the limits of such structures, the materials of which they should be built, the manner of their operation, and wharfage charges; and the rights of an owner acquired under such usage and recognition constitute a valuable property, which cannot be arbitrarily or capriciously destroyed or impaired.</p> <p>6. Same — Construction of Wharves — Implied License.</p> <p>Where a city which held the legal title to the shore and lands under tho waters of a navigable river within its limits, and to which was delegated the powers of the state over the same, recognized the right of owners to build and maintain wharves and landings over such lands to navigable water, by making no objection to such structures, and by regulating the same and tho manner of their construction, its action amounted to an implied license, which was irrevocable after it had been acted upon and expenditures made in reliance thereon.</p> <p>7. Same-Equitable Estoppel — City.</p> <p>A city which has by long acquiescence in a general custom and usage given an implied license to a riparian property owner to construct and maintain wharves in front of its lands to navigable water in a river, over shore and submerged lands below high-tide water mark, to which the city held the legal title, and has for many years regulated and taxed the structures of such owner, is equitably estopped from asserting any claim to such lands which would dispossess the license or destroy its property rights therein.</p> <p>8. Equity Jurisdiction — Protection op Riparian Rights — Enjoining Actios at Law.</p> <p>A federal court of equity has jurisdiction of a suit to protect the riparian rights of a landowner from threatened destruction or impairment, where such rights do not rest upon a legal title, but upon a prescriptive use of shore and submerged lands lying between his boundary at high-tide water mark and the navigable water in a river, for the maintenance of wharves thereon; and in exercise of such jurisdiction it may enjoin the prosecution of an action of ejectment for the recovery of such shore and submerged lands by a city which holds the legal title, but which, by its long acquiescence in their occupation by complainant, and in the expenditure of money in improvements thereon, is equitably estopped to assert such title to the impairment of complainant’s rights.</p>

<p>1. Patents — Suits por Infringement — Equity Jurisdiction.</p> <p>A court of equity acquires jurisdiction of a suit for infringement of a patent, where the relief sought is a temporary and permanent injunction and an accounting, and the bill contains the requisite and usual aver-ments, notwithstanding the fact that the patent has only about four months to run when the bill is filed; and it retains such jurisdiction to grant the incidental relief prayed for, although no injunction is issued during' the life of the patent.</p> <p>2. Same-Pleading — Demurrer.</p> <p>Where a bill for infringement sets out the nature of the invention in general terms only, and makes profc-rt of the patent, such patent will be considered as before the court for the purposes of a demurrer. 1</p> <p>3. Same — Invention—Process of Suspending Cables.</p> <p>The Ghinnock patent, No. 274,562, for a process of suspending a cable or conductor so as not to subject the same to severe longitudinal strain, which consists of stretching an independent wire taut between the supports, suspending the cable under it, and progressively taking up the slack and binding it to the wire by winding them with a suitable cord, but which does not include the mechanical device by which the process is accomplished, is void on its face for lack of patentable invention.</p>

<p>1. PATENTS — CONSTRUCTION OF CLAIMS — LIMITATION BY AMENDMENT.</p> <p>A limitation inserted in an application for a patent by amendment after its rejection, to meet the objections of the patent oifiee, must be given effect in construing the patent issued on the amended application, without regard to whether it was required by the prior art.</p> <p>2. SAME — INFRINGEMENT—Oiler.</p> <p>The Ilirsch patent, No. 521,014., for a safety extension oiler, claim 1, construed, and held not infringed.</p> <p>S. Same — Oil and Spkinkling Can.</p> <p>The Smalley patent, No. 217,855, for an oil and sprinkling can, con- . strued, and held not infringed.</p>

<p>Patents — Infringement—Portable Drilling Machines.</p> <p>The Moft'et patent, No. 369,120, for a portable drilling machine, in which steam or compressed air is substituted for hand power in drilling holes in metallic structures, was not anticipated, covers an invention of great merit, and is entitled to a liberal construction. As so construed, held infringed.</p>

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

<p>1, Patents — Anticipation—Meciiani cat. Combination.</p> <p>A patent for a mechanical combination is anticipated by a prior device containing the same elements, although the inventor of the latter did not describe or appreciate the advantages of using the combination in the way pointed out in the patent.</p> <p>3. Same — Operation op Spring.</p> <p>As a mechanical movement, it is immaterial whether a spring works by contraction or extension; and a patent is anticipated. by a prior device essentially the same, except in the manner of operation of a spring.</p> <p>8. Same — Electric Switch.</p> <p>The Cleveland patent, No. 891,512, for an electric switch, is void for anticipation.</p>

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

<p>1. CARRIERS — Steamship—Overcrowding Passengers — Damages.</p> <p>Where a steamship company having accommodation for and authorized to carry only 375 steerage passengers sells tickets to and receives 475 such passengers, and hy reason of such overcrowding the passengers are delayed and injured, the company is responsible for such damage, since such crowding beyond the point at which the passengers could be safely carried is a breach of the contract to safely carry them.</p> <p>2. Same — Inspector’s Certificate — Evidence.</p> <p>An indorsement on an inspector’s certificate that a steamship had been provided with accommodations for additional passengers should be rejected as evidence of the fact that such accommodations had been provided, when all the testimony shows conclusively that there were no 3. Same-Defense</p> <p>3. Same-Defense</p> <p>When permission of inspector was obtained to crowd a vessel beyond the limit of accommodation provided for passengers, such permission is not a defense to an actioR for damages to passengers sustained by reason of such overcrowding.</p> <p>4. Same — Contract—Landing—Public Policy.</p> <p>A provision in a contract between a ship and its passengers that the landing shall not be deemed a part of the voyage is contrary to public policy and void, and does not relieve the carrier from liability for loss of baggage or delay in delivery.</p>

<p>1. Defects in Ship — Injury to Stevedore — Negligence.</p> <p>There is negligence rendering a ship liable to a stevedore injured while taking off the covers of a hatch by a section falling in because of an athwartship being sprung out of line, so that when one of the covers was 'taken off it failed to support the remaining covers; there having been no inspection of the hatch for years, and the defect being one that an inspection would have shown.</p> <p>2. Same — Contributory Negligence.</p> <p>A stevedore injured while removing the covers of a hatch by the falling in of a section thereof because of an athwartship being sprung out of line, so that when one of the covers was taken off it1 failed to support tfie other covers, is not chargeable with contributory negligence, though he had an opportunity to notice the defect during the three days preceding the accident, when he assisted in removing .or replacing the covers, or was present while it was being done; he in fact not having noticed the defect.!</p>

<p>1. Public Improvements — Negligence op Contractors — Liability.</p> <p>While damage or loss resulting from the making with proper care and prudence of a public improvement pursuant to law is damnum absque injuria, contractors for such improvement, to avoid liability for resultant damage, must as far as practicable employ reasonably safe means and methods, and the doctrine of damnum absque injuria is wholly inapplicable where loss results to third persons from the negligent employment of unsafe methods unnecessary to the conduct of the work.</p> <p>2. Collision — Improper Signals.</p> <p>A close and literal compliance with the requirements of the regulations for preventing collisions is imperatively demanded, and the use by a vessel at anchor, and not in extremis, of a passing signal is a gross fault.</p> <p>3. Same — Mutual Fault — Damages.</p> <p>As a general rule, subject to qualification in special cases, where three vessels are all in fault for a collision resulting in damage to only one of them, the total damage and costs should be equally divided between all of them; but where one of them, other than the damaged vessel, al- . though not so related to or connected with the latter as to be a mere inert, passive or helpless instrument, without accountability for the movements or signals of the latter, nor her mere servant, but a free agent, not bound to obey the directions of the latter, has been induced by the latter to do the precise thing which constitutes her fault, the share of the damage and costs which she would otherwise be obliged to pay must be borne by the damaged vessel causing her to commit such fault.</p> <p>(Syllabus by the Court.)</p>

<p>1. Public Lands — Jurisdiction of Courts — Conolusiveness op Decisión of-Department.</p> <p>Á court of equity' has jurisdiction to grant appropriate relief to a complainant, who has been deprived of land to which he is entitled under the public land laws through an erroneous construction of the law by the land department as applied to the facts found, although as to , the facts the findings of the department are conclusive.1</p> <p>2. Same — Railroad Grant — Reversion op Unearned Lands.</p> <p>' Act May 12, 1864 (13 Stat. 72), granting lands to the state of Iowa for the purpose of aiding in the construction of two lines of railroad, one of which was from Sioux City to the south line of the state of Minnesota, provided that the lands should bo patented as earned by the construction of sections of the road, to be certified by the governor, and that, if the roads were not completed within 10 years of their several acceptances of the grant, the lands granted and not patented should revert to the state for the purpose of securing the completion of said roads within such time, not to exceed 5 years, and upon such terms as the state should determine: “provided, further, that, * * * should the state fail to complete the said roads within 5 years after the 10 years aforesaid, the said lands undisposed of as aforesaid shall revert to tho United States.” In 1866 the lands apportioned to the Sioux City Line were granted hy the state to the Sioux City & St. Paul Railroad Company, which constructed a portion of the line, but ceased work in 1872. In 1882 the state declared the unearned portion of the grant forfeited, and resumed the same, but no action w-as thereafter taken by the state to secure the completion of the line. IIeld, that under the terms of the original grant- by congress such unearned lands reverted to the United States, and became subject to Act March 3, 1887 (24 Stat. 556), providing for the forfeiture of unearned lands generally, and that the adverse claims of persons entering-such lands under the public land laws and those claiming through purchase from tho railroad company must be determined hy the provisions of that act.</p> <p>3. Same — Act Confirming Title of Purchasers— Rights of Subsequent Purchasers.</p> <p>Act March 3, 1887 (24 Si at. 556), which declared a forfeiture of all unearned lands covered by railroad grants, and required their adjustment, but which provided in section 4 “that as to all lands * « * which have been sold by the grantee company to citizens of tho United States the person or persons so purchasing in good faith * * * shall he entitled to the land so purchased,” does not entitle one who purchased unearned lands from a company after the passage of tho act to protection as against an actual settler under the homestead laws, whoso settlement and improvement of tho land antedated such purchase.</p> <p>4. Same — Construction of Grant — Effect of Patent to State.</p> <p>Act May 12, 1864 (13 Stat. 72), granted lands to tho state of Iowa, as trustee, to secure the building of a line of railroad from Sioux City to tho Minnesota state line, but expressly declared that the lands should bo used for no other purpose, and should not be incumbered or disposed of until patented, and provided that they should only be patented as earned by the construction of coterminous sections of tho road. Held, that a patent issued to the statfc’ for lands coterminous with a completed section of thp road, but which had not been earned by reason of the-failure of the company to complete the road, and which, for that reason, the state had refused to convey to the company, was limited by the conditions of the grant, and did not operate as a conveyance “to or for the use, of” the company, within the meaning of section 5 of Act March 3, 1887 (24 Stat. 556), and. that under said section, in a contest between a purchaser from the company and a prior settler claiming under the homestead laws, preference should be given to the latter.</p> <p>5.’Same — Homestead Entry of Unearned Lands — Good Faith.</p> <p>The good faith of a homestead settler is not impeached by the fact that the land, when he settled upon it, was within the limits of a railroad grant, under which it had been withdrawn from market, where he had knowledge that the terms of the grant had not been complied with, nor the land earned thereunder, and good reason to believe that it would soon be restored to the public domain, as in fact it was.</p> <p>6. Same — Bona Fide Purchasers from Railroad Company — Notice of Bights of Settler</p> <p>Under the provisions of Act-March 3, 1887 (24 Stat. 550), confirming the titles of bona fide purchasers of lands from a grantee railroad company whose title failed, or permitting such purchaser to enter the lands where the company had no title, a purchaser from a company is chargeable with notice of the rights of one who at the time of the purchase was in the actual occupancy of the land, claiming as a settler under the homestead laws, and he is not a bona fide purchaser, within the meaning of those provisions, as against such settler, but acquires only the title and rights of his grhntor.</p>

<p>Foreign Corporations — Jurisdiction of Federal Courts — Service on Agent.</p> <p>A federal court does not acquire jurisdiction over a. corporation of another state, domiciled therein, which maintains no regular or éstablisheá place of .business or agent within the district where the suit is brought, by service of process on a person not in fact its agent within the district.1</p>

<p>Removal oe Cause to Federal Court — Separable Costtroversy.</p> <p>Plaintiff, in suit against IL, E., and S., souglit to recover land, the petition alleging that S. made a parol gift of the land to plaintiff, and put him in possession; that plaintiff remained in possession over seven years, without any claim by S.; that after the gift, and while plaintiff was in possession, S. deeded the land to E., without plaintiff’s knowledge, and that thereafter E. deeded it to H., after H. had received notice of plaintiff’s claim. The petition asserted plaintiff had complete title to the land, and prayed, if he had not, that he have a decree against all the defendants for specific performance of the promise of S. to give him the land. It also prayed for decree for the land, and for cancellation of the deeds to E. and H. Held, that there was not a separable controversy between plaintiff and defendants, so as to allow of removal of the cause to the federal court.1</p>

<p>On Demurrer to Amended Bill.</p>

<p>AiWBAL — StTPKRSEDEAS—STATEMENT OR llECEIVEit’S ACCOUNT.</p> <p>After appointment of a receiver, the court rendered a decree dismissing tlie bill, and on the same clay a separate decree, reciting the filing of a report by the receiver and the lodging of exceptions against it, and ordering that the exceptions be referred to a master, and that he proceed to hear and determine them. Appeal was then taken from the former decree, and supersedeas had. Held that, even if the decrees be construed as one, the supersedeas did not prevent the making of the statement of the receiver’s accounts.</p>

<p>1. Building and Loan Associations — Receivers—Stockholders—Preference.</p> <p>Where the affairs of a building and loan association are placed in the hands of a receiver for settlement and winding up, the effect is to transform all the stockholders into creditors; and the holders of paid-up or full-paid stock, or those who gave notice of withdrawal before the receiver was appointed, should have no preference over the holders of installment stock.</p> <p>2. Same — Liabilities—Siiares of Stock — Computation.</p> <p>In computing tlie liabilities of an insolvent building and loan association, full-paid and paid-up stock on which dividends have been regularly paid should be computed at its par value; and all installment stock, whether or not there has been notice of withdrawals or loans made tlieroon, should be computed at its withdrawal value, as determined by tlie by-laws.</p> <p>3. Same — Borrowing Members — Dividends.</p> <p>In winding up tlie affairs‘of an insolvent building and loan association, tlie amount of the probable dividend which will be payable to borrowing stockholders may be computed and allowed to them as a credit on their loans, not as a matter of right or even strict equity, but rather as a compromise to aid in tlie speedy collection of the assets.</p>

In Equity. In the matter of the intervening petitions of Florence A. Caulk and Helen M. Norris. On exceptions to report of John C. Rose, special master. The petitioners allege that they were the holders. of full-paid stock in the defendant association, and had given notice prior to the filing of the bill in this case that they desired to withdraw their stock.

In Equity. In the matter of the intervening petitions of S. Fannie Twining and Eunice A. Pearce. On exceptions to report of John C. Rose, special master. Tlie hearing before the special master was at the instance of the petitioners, Mrs. Twining and Mrs. Pearce, who are holders of the so-called full-paid stock of the Baltimore Building & Loan Association of Baltimore City.

In Equity. In the matter of the intervening petition of Charles G. Blake. On exceptions to report of John C. Rose, special master. Held: in a case similar to the present case, that the borrowing stockholder must be given credit for the payments made as dues upon stock.

The facts in this case, so far as it is necessary to state the same with a view to an understanding of the questions involved, are as follows: In-1881 the Pittsburg & Western Railroad Company, a corporation of the state of Pennsylvania, was organized. It subsequently leased the lines of certain railroads in Ohio. It also had a part of its line in the state of Pennsylvania, and operated altogether a line from Pittsburg to Akron, Ohio.

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

The plaintiff sustained a severe personal injury while traveling as a passenger on the defendant’s line of railway between Springfield, Ohio, and Cleveland, Ohio. At Gallion, an intermediate station, notice was given that the car, in which plaintiff was riding, would go no further, and that passengers must take seats in other cars. This notice seems to have been given while the movements necessary to cut the car out were being made.

This action of replevin was instituted by the defendant in erijor April 3, 1896, against plaintiffs in error, to recover possession of a large number of feet of pine logs cut by the plaintiff in error Cunningham from the S. W. 44 of section 25, in township 44 N., of range 36 W., in the state of Michigan, which he had previously sold by contract to his co-plaintiff - in error the Menominee Bay Shore Lumber Company, which, for convenience, will be called the “Bay Shore Lumber…

<p>Eminent Domain — Elements of Damages — Public Building Erected under License.</p> <p>The United States purchased a site for a life-saving station, taking a conveyance from the life tenant, which gave it the right to maintain a building thereon as long as desired, and to remove the same at any ■ time'. Owing to injury by the tides, the building erected was subsequently moved back to a new location on the land of the grantor, with his acquiescence, and was there maintained until his death. It was placed on spiles two feet from the ground. Held that, being a public building built and maintained under license from the owner of the ground, it remained the property of the United States, and the remainder-men were not entitled to be paid therefor in proceedings subsequently instituted by the government to condemn the land.</p>

Action at Law. Heard on motion to strike from the files interrogatories propounded by the plaintiff, to be answered by the defendant, or its officers or employés having knowledge of the facts. Motion denied.

This case comes up by writ of error to the circuit court of the United States for the Western district of Yirginia.

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of New York, in Bankruptcy.</p>

<p>In Bankruptcy. On review of ruling of referee respecting claim of Hamilton County State Bank.</p>

<p>In Bankruptcy.</p>

This case comes up on appeal from the district court of the United States for the Eastern district of Virginia, sitting in bankruptcy. The Miller China Company, a corporation of the state of Virginia, conducted business for several years in the city of Richmond in that state. It did its banking business with the Security Bank of Richmond, and at the date of the transaction hereinafter mentioned was indebted to that bank by note in the sum of $5,000.

<p>L Bankruptcy — Place op Business.</p> <p>The defendant lived with his family on a farm in Pennsylvania, and the branches of business conducted by him were raising and selling farm products, buying and selling farm products, selling farm products on commission, and buying and forthwith slaughtering live stock and selling the meat. He had a stall in a market house in Wilmington, Delaware, where he exhibited and sold all but a comparatively small proportion of the produce handled by him. What he sold in Wilmington was not delivered pursuant to contract entered into elsewhere, but the contract of sale and the delivery of the subject of sale were contemporaneous and effected at his stall. Meld that his principal place of business was in Wilmington.</p> <p>8. Same — Parmer—Definition.</p> <p>“A person engaged chiefly in farming”, within the meaning of the bankruptcy act, is one whose chief occupation or business is farming; and oné’s chief occupation or business, so far as ■worldly pursuits are concerned, is that which is of principal concern to him, of some per.manency in its nature, which he deems of paramount importance to his welfare, and on which .he chiefly relies for his livelihood or as the means of acquiring wealth, great or small.</p> <p>3. Same — Occupation.</p> <p>That one may principally devote his physical exertions or his time or his capital to a given pursuit, while a factor entitled to consideration, is not in all cases determinative of the question whether that pursuit is his chief occupation or business.</p> <p>4. Same.</p> <p>It is impracticable, if not impossible, to define with precision the facts which will in all cases determine whether one is engaged chiefly in farming, and each case must be decided on its own circumstances.</p> <p>6. Same — 1’ormer Pursuit.</p> <p>No construction of the bankruptcy act is admissible which would permit an insolvent person, who had committed an act of bankruptcy within four months next preceding the filing of the petition, to evade the provisions of the statute, by engaging in farming after the commission of the act and before the filing of the petition.</p> <p>6. Same — Petition of Creditors.</p> <p>Under section 59f of the bankruptcy act creditors other than original petitioners may at any time before an adjudication of bankruptcy or the dismissal of the original petition, and whether before or after the expiration of four months from the act of bankruptcy, join therein in order to supply any deficiency in the amount of provable claims originally set forth in the petition; insufficiency in amount of such claims not being an incurable jurisdictional defect.</p> <p>(Syllabus by the Court.)</p>

<p>Bankruptcy — Individual and Firm Assets.</p> <p>As between the creditors of a firm and a member thereof, real estate' is assets of the firm, though the legal title was allowed £to stand in the name of such member; the consideration therefor having moved, from the firm, the debts assumed as part of the consideration having been entered in its books as its liability and treated as such, the taxes thereon. having been assessed in its name and paid by it, and it having been included in the firm assets in the statement of assets of the firm and the partner in whose name it stood, made and signed by such member, on the strength of which firm indebtedness was contracted.</p>

<p>Federad Liquor Tax — Action by United States on Bond — Estopped.</p> <p>Spirits deposited in a warehouse by adistiller were purchased by the United States for medicinal purposes, and removed from the warehouse, and the entire price paid by the United States, without retaining any part of the tax due thereon after making allowance for evaporation, as authorized by Act Cong. Aug. 27, 1894, § 50. Thereafter the United States brought suit on the distiller’s bond against the distiller and his sureties to recover the tax due. Held that, since the United States had a lien on the spirits in the warehouse for the payment of the tax due thereon, which lien, through the United States, vested in the sureties, it was the duty of the United States to retain a sufficient amount of the price to pay the tax, and, it not having done so, it thereby deprived the sureties of their security, and hence the United States was estopped, as against them, from recovering on the bond; but such estoppel did not obtain as against the distiller, since as to him the payment of the price without deducting the tax was simply a mistake, which would not o-per-ate as an estopxiel.</p>

<p>L Unfair Competition — Imitation of Name and Package.</p> <p>Where there are strong resemblances between the name and dress oí the goods of defendant and complainant, which are more observable to an ordinary purchaser than the differences, and no sufficient reason for such resemblances appears, the presumption is that they were intended to confuse and deceive purchasers; and the fact that there are differences which appear on a comparison is not a defense to a suit for unfair competition.1</p> <p>2. Trade-Name — Descriptive Term — ‘'Cascara.”</p> <p>The word “Cascara,” which is the name of a drug generally known, cannot be monopolized as a trade-name, but may be used by any one In connection with any preparation of which it is properly descriptive.2</p>

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

<p>In Equity. Suit for infringement of letters patent No. 423,558, issued to Samuel Hall March 18, 1890, for a “method of producing imitation press-copied letters.”</p>

<p>In Equity. Suit for infringement of patents.</p> <p>This cause was heard upon pleadings and proofs. It is a suit for alleged infringement of two United States letters patent to Nikola Tesla, viz. Nos. 511,559 and 511,560, both issued December 26, 1893, on application filed December 8, 1888.</p>

Bill for an injunction by Horace F. Brown, the patentee named in United States letters patent No. 471,264, for an ore-roasting furnace,- complaining of an infringement of said patent by the Puget Sound Reduction Company, in the use of an ore-roasting furnace constructed according to the specifications in United States letters patent No. 532,013, issued to Alfred Ropp, and in the use of another ore-roasting furnace constructed according to the specifications of United States…

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

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

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

<p>In Admiralty. Suit for damages for breach of charter.</p>

<p>1. Judgment— Conci/usivenbss.</p> <p>Libelants Shipped petroleum, covered by marine insurance, on board a bark which became disabled at sea. Salvage and other expenses were incurred, to pay which the ship and cargo were subsequently sold by the master. Held, in an action on the policy, that a judgment in an action on the master’s bottomry draft, pledging ship and freight, in which the sale of the ship was held invalid, was not admissible in evidence, nor binding in any way, it being between different parties, and on different evidence.</p> <p>2. Marine Insurance — Limitations of Actions — Waiver.</p> <p>Any conduct of an insurer which, tends to mislead the insured, and cause delay in prosecuting his claim beyond the time limited in the policy, amounts to a waiver of the condition.</p> <p>3. Same.</p> <p>Subsequent dealings with the insured, in which the insurer recognizes the continued validity of the policy, and requires further action on the part of the insured, involving labor and expense, amount to a waiver of the condition in the policy limiting the time for prosecuting claims.</p> <p>4. Same — Formal Abandonment — Waiver.</p> <p>Where the insufed under a marine policy wrote the insurer, inquiring “whether we must make an abandonment by judicial act, or if our present letter, expressing an intent to abandon, will do?” the latter’s answer, ignoring the informal tender, and denying any liability under the policy, excuses a delay in making the formal tender.</p> <p>5. Same — Risks Covered — General Average.</p> <p>Libelants shipped petroleum, covered by marine insurance against sea perils, on board a bark which became disabled at sea. Held, that the general average charges assessable on the oil, and for which .the insurer was liable under the policy, included the decree for salvage, with costs and expenses, inward pilotage, towage, ship’s new material used up in the salvage work, etc.</p> <p>6. 'Same — Petroleum Average.</p> <p>A certificate for marine insurance contained an exception of “particular average unless vessel be stranded,” etc. The policy provided that the insurer should not be liable for leakage of liquids, unless occasioned by stranding. The vessel containing the petroleum became disabled at sea, and in being towed to the nearest harbor became stranded, and pounded for half an hour on a coral reef, causing excessive damage to the bottom. Its cargo on the first warehousing, pending the repairing of the vessel, appeared to be in good condition, and experienced witnesses testified that the damage was caused by contact with sea water, detention in a tropical climate, and frequent handling. Held, that tlie loss by leakage was caused by stranding, within the policy.</p>

<p>1. Carriers of Passengers — Loss of Bagoage — Evidence.</p> <p>Where a passenger’s trunk, which when delivered by her to a steamship company contained her wearing apparel, could not be found at the end of the voyage, and when afterwards forwarded to her was empty, and the company refused to give any explanation, and when sued for the loss introduced no evidence as to its care or treatment of the trunk while in its possession, the court is justified in finding that it was broken open and rilled by the company’s servants.</p> <p>3. Same — Law Governing Contract — Stipulation for Exemption from Liability for Negligence.</p> <p>A provision in a ticket, issued by an English steamship company to a passenger in the United States, for passage from an American to an English port, that the contract shall be governed by the English law, is ineffectual to render valid a stipulation exempting the company from liability for the negligence of its servants in respect to the passenger’s baggage, which is contrary to the public policy of the United States.</p> <p>3. Same — Liability for Loss of Baggage — Validity of Limitation.</p> <p>Conceding the right of a carrier to stipulate for a reasonable restriction of its liability for loss of a passenger’s baggage, a 'provision limiting such liability to Íp50, in a ticket for first-cabin passage across the Atlantic, in a first-class steamship, is not reasonable, and will not be ei .forced, especially where the provision was not called to the attention of the passenger, and the loss resulted from theft or conversion by the carrier’s servants.</p>

Parr & Son, merchants in Baltimore, arranged with Schumacher & Co., agents of the Nord-Deutsclier Lloyd, a steamship company organized under the laws of the empire of Germany, for the carriage of 0,000 quarters of corn from Baltimore to Bremen, and it was verbally agreed that the steamship company would transport said corn for a certain freight, from port to pbrt, subject, in all respects, to the’ terms and conditions of the ■bill of lading, which had theretofore been…

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

<p>Seamen — Prepayment of Seamen — Constitutional Law.</p> <p>Section'"24 of the act of congress of December 21, 1808, entitled “An act to ameiid the laws relating to American seamen, for the protection of such seamén, and to promote commerce” (30 Stat. 755), in prohibiting the prepayment of the wages of seamen, is a constitutional enactment, applying to the prepayment on American soil or in American waters of .the wages of seamen, who are British subjects, shipping in American ports on British merchant vessels; there being no treaty between the-United States and Great Britain inconsistent with such application.</p> <p>(Syllabus by the Court.)</p>

<p>Towage — Liability of Tijg foe Injuey of Tow — Shukesg Deawbeidoe.</p> <p>A tug held in fault and liable for an injury to a schooner by striking against the abutment of a bridge while the tug was towing her through the draw.</p>

This case came here on a former appeal from a decree of the district court finding the steamers the Ohio, 1he Siberia, and the Samuel Mather all at fault for a collision which resulted in the sinking of the Ohio. 33 0. O. A. 667, 91 Fed. 547.

<p>Collision — Failure to Display Light — Tug and Tow.</p> <p>Where a canal boat being towed alongside a tug at night in a harbor failed to display a white light on her outboard bow, as required by inspectors’ rule 11, both the tug and the canal boat are chargeable with ti<e fault; and tho tug is not exonerated from liability (for a collision resulting by the fact that her master ordered the master of the canal boat to put out the light, but it was his further duty to see that his order was enforced.</p>

<p>Collistor — Schooner and Tug — Violation of Rules.</p> <p>A seliooner was coming down North river, crossing on the port tack, with a strong ehb tide, while a tug with a ear float on her port side was going up about 000 feet from the New Jersey shore. When in front of the tug, and 000 feet distant, the schooner went about, in violation of the rules; there being ample room for- her to continue on the port tack until she had crossed the course of the tug. Before she acquired headway after coming about she was carried down by the tide and came in collision with the float. The tug reversed with all speed when the schooner went about, but it appeared that the bow of the float swung somewhat to starboard. Held, that the only fault possibly attributable to the tug was in failing to starboard her wheel, which was not culpable, since she acted in extremis after having been, placed in a perilous position through the sole fault of the schooner, and that she could not-be charged with liability for any part of the damage to the schooner.</p>

<p>1. Public Lands — Northern Pacific Grant— Construction of Act for Settlement of Conflicting Claims.</p> <p>Act July 1, 1898 (30 Stat. G20), was enacted for the purpose of settling without litigation, with the full consent and through the voluntary action of the parties, all disputes relating to lands which arose through the conflicting rulings of the land department as to the eastern terminus of the Northern Pacific Railroad as affecting its land grant, in so far as such lands had not been disposed of by the railroad company. Such act, which was accepted by the company, gave to every purchaser or settler claiming in good faith any of such lands through any law of the United States or ruling of the land department, whose right attached prior to January 1, 1898, the option to retain such lands or transfer his claim, and provided that, in case he elected to retain the land claimed, the railroad company, on executing a relinquishment, should be entitled to select other lands in lieu thereof. Held, that such act became operative from the date of its passage, and that the railroad company, having accepted the same, could not thereafter convey to another any right in the lands to which it applied, except subject to its, provisions, by which the company was bound to relinquish its claim to such lands as the settlers or purchasers from the United States elected to retain;' since any other construction of the act would enable the company, at its option, to render it nugatory.</p> <p>2. Same.</p> <p>Such act applies as well to lands which had been patented prior to January 1, 1898, as to those to which the rights of settlers and purchasers were then inchoate, both classes being equally within its purview. It is immaterial that the land department had lost jurisdiction over the lands patented, since the act does not require the department to determine any conflicting claims, but merely to perform the ministerial duties of notifying settlers and purchasers of the option given them, and of furnishing to the railroad company a list of the lands .which they elect to retain, upon which it becomes the duty of the company, under the provisions of the act itself, to execute the proper re-linquishments therefor.</p> <p>8. Same — -Jurisdiction of Courts — Interference with Land Department.</p> <p>Neither a federal nor state court can properly assume to determine and adjudicate the rights of contesting claimants to public lands while the matter is pending before the land department.</p> <p>4. Same — Injunction.</p> <p>A court of equity will not interfere by injunction as between two contesting claimants of public lands, which are still within the jurisdiction of the land department, unless to prevent waste which will result in serious and permanent injury to the land.</p>

<p>Specific Performance — Contracts Enforceable.</p> <p>An oral agreement with the receivers of an unfinished railroad to furnish the money required to complete the same for receivers’ certificates and other securities as collateral is not such a definite and precise contract as to warrant a decree or order for its specific performance.</p>

<p>In Equity. Petition for sale of property in hands of receivers.</p>

In Equity. Suit to enjoin the enforcement by defendants of a state regulation fixing rates of charge for the transportation of passengers and freight within the state.

<p>1. Equity — Excbptioks to RbfoRT cot Mastee.</p> <p>It is the settled rule that exceptions to the report of a master in equity in a circuit court of the United States should set out specifically the errors upon which the party relies, and the court is justified in disregarding exceptions which merely slate generally that a finding of the master is contrary to the law and the evidence, the consideration of which would require the chancellor to re-examine the entire evidence, and defeat the purpose of the reference.</p> <p>2. Same — Ekeobcemknt cot Coxtiiaots — Equitable ConstkuctioR-.</p> <p>A party to a contract who has himself failed to comply with its conditions will not toe permitted toy a court of equity to insist upon a harsh and strict construction of it as against the other party.</p>

<p>Corporations — Suit by Stockholder — Preliminary Injunction.</p> <p>The case made by a complainant by bis bill and affidavits showed that he was a stockholder in the corporation defendant, of which the other defendants were the directors; that it became necessary to the successful prosecution of certain of the business of the corporation that it should construct a railroad and acquire and operate a line of steamers to transport the produ'ets of an iron mine which it had developed, but that it was without authority to do such things under its- charter, which could not be amended for some two years; that thereupon the individual defendants organized a new corporation, having such authority, which obtained right of way for a railroad, together with a land grant from the Canadian government, purchased steamers, and constructed a portion of the railroad; that such defendants themselves took substantially all the stock in the new company, and, after the subsequent amendment of the charter of defendant company, .conspired together, and, by reason of their controlling interest and influence therein, compelled such company to purchase the properties and rights of the new company at an exorbitant price, for their own profit. Held that, in the absence of a clear showing by defendants of sufficient reasons justifying their actions, complainant iwas entitled to a preliminary injunction, restraining the consummation of the purchase until the trial of the cause on the merits.</p>

<p>1. Intervention — Ex Parte Order.</p> <p>An order permitting the attorney general, as representing the state, to intervene in the federal courts in an action to restrain trespasses, will not be set aside because granted ex parte,' where the officer was entitled to intervene, and, the parties having been fully heard, the court would be obliged to re-enter it if stricken out.</p> <p>2. Trespass — Lakes—Fisheries—State’s Rights — Intervention by Attorney General.</p> <p>A bill alleged that complainant is the owner of a lake in New Hampshire covering over 200 acres, and as such owner entitled to an exclusive fishery therein, which defendants had infringed by trespass. Defendants defended on the ground that the lake is one commonly known as a “great pond,” which belongs to the state. Held, that such suit involves a public question, in which the state is interested, and, though a judgment in favor of plaintiff might not estop the state, the attorney general will be permitted to intervene in its behalf. Potter v. Beal, 50 Fed. 860, 2 C. C. A. 60, distinguished.</p> <p>S. Same.</p> <p>The fact that complainant amended the bill, and attempted to eliminate the public character of the question, could not prevent the intervention where the bill retained the description of the iake, since the court would be bound to take judicial notice of the fact that the state of New Hampshire claims all ponds of the extent of the one -in question.</p>

<p>In Equity. Suit to foreclose mortgage.</p>

<p>1. Nonresident Parties — Notice—Designating Attorneys.</p> <p>Plaintiff, a nonresident of the state, not having designated an attorney within the district on whom notice or other process may be served, as required by circuit court rule 32, cannot complain that defendant’s motion for removal of cause was heard ex parte without notice to him.</p> <p>2. Removal of Cause — Discretion of Judge.</p> <p>Under circuit court rule 20, providing that on the affidavit of plaintiff . or defendant, showing good cause, a judge may remove a cause from one place of holding court to another, the question of removal is addressed to the discretion of the judge.</p>

This cause is brought’into this court on writ of error to reverse a judgment of the circuit court for the district of Washington, Western division, awarding the plaintiff (defendant in error) the sum of $2,500 as damages for injuries received from the negligent operation of a street ear by the defendant. 106 Fed. 48.

<p>1. CORPORATIONS — DtSSOI/UTION—KANSAS STATUTE.</p> <p>Under tlie provision of Gen. Sf. Kan. c. 23, § 40, that a corporation shall be deemed to be dissolved, for the purpose of enabling its creditors to prosecute suits against stockholders, if it has suspended business for more than one year, as construed by the supreme court of the state, such suspension of business operates as a dissolution only for the purpose stated; for all other purposes the corporation continues, and may be sued and may defend actions as before, and service may bo made upon, or accepted by, tlie same officers.</p> <p>2. Same — Yaridity op Judgment against — Appearance by Cashier.</p> <p>Under the statute of Kansas, which' authorizes service to he made upon the cashier, secretary, or managing agent of a corporation when the president is absent from the county, the acceptance of service by the cashier of a corporation of that state, or his voluntary entry of appearance in a suit brought against the corporation more than a year after it has suspended business, is valid and binding on the corporation where the president was a nonresident and absent from the state.</p> <p>8. Same — Statutory Liability of Stockholm® — Action to Enforce.</p> <p>, An action by a creditor of a Kansas corporation against a stockholder to enforce the remedy given by Gen. St. Kan. c. 23. § 32, is transitory, and may be maintained in any court of competent jurisdiction, either federal or state, in states other than Kansas.</p> <p>4. Same — Interest.</p> <p>Under the provisions of the constitution and statutes of Kansas, which secure dues from corporations by the individual liability of stockholders, and require a stockholder to pay an unsatisfied execution against tlie corporation, a creditor enforcing the remedy so given against a stockholder in another forum is entitled to recover 10 per cent, interest to the date of ’trial, where that was the contra et rate, and also the rate home hy the judgment rendered thereon against the corporation in a court of Kansas, in accordance with the requirement of the state statute.</p> <p>6. Same — Actior by Assignee.</p> <p>The remedy given to judgment creditors of a corporation hy Gen. St. Kan. c. 28, § 32, which authorizes a plaintiff in an unsatisfied execution against the corporation to “proceed hy action to charge the stockholders with the amount of his judgment,” may he enforced hy an assignee of the judgment by an action in his own name. ■</p> <p>6. Same — Basis for Action — Judgment in Special Proceeding.</p> <p>Gen. St. Kan. c.' 23, § 32, provides that after ihe return of an execution against a corporation unsatisfied an execution may he issued against any stockholder, but that no such execution shall issue “except on an order of the court in which the action, suit, or other proceeding shall have been brought or instituted.” The section also provides that the plaintiff in the execution may proceed by action to charge the stockholder. A Kansas corporation made an assignment, and a creditor appealed from an order of the assignee disallowing its claim to the district. court, as provided for by statute. Both the corporation and assignee appeared and contested the suit, and the court rendered a judgment establishing the claim, upon which an execution was subsequently issued against the corporation, and returned unsatisfied. Held that, notwithstanding such judgment was rendered in what was denominated by the statute a special proceeding, and was in the nature of a judgment in rem, it was one within the contemplation of said section 32, on which the court was authorized to award an execution, and that such judgment and execution constituted the required prerequisite to an action to charge a stockholder.</p> <p>7. Same — Limitations—Law Governing.</p> <p>An action to charge a stockholder in a Kansas corporation with liability for debts of the corporation, under the constitution and statutes of the state, is governed as to limitation by the law of the forum; there being no limitation prescribed as to such actions by the statute of Kansas other than that contained in its general statute of limitations.</p>

<p>Bankruptcy — Proop and Allowance op Claims — Preferred Creditors.</p> <p>A payment on account, made by an insolvent within four months prior to his bankruptcy, constitutes a preference, which must he surrendered, under Bankr. Act 1898, § 57g, before the creditor can prove the remainder of his debt; notwithstanding it was made in the usual course of business, and without knowledge on the part of the creditor of the debtor’s insolvency, and without relation to the state of the account at the time.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p>

<p>Bankruptcy — Security op Creditor — Failure to Becord.</p> <p>As against the creditors of a bankrupt, one who had sold to him a chattel by contract providing that title shall remain in the seller till purchase price is paid cannot claim a lien, the contract not having been registered, as required by Laws N. C. 1883, c. 342; Code, § 1275.</p>

<p>1. Trade-Name — Wrongful Use — Participation—Evidence.</p> <p>Where defendant engaged as selling agent for typewriters sold under the trade-name of “Remington-Sholes,” manufactured by a corporation organized by descendants of the original Remingtons, the right to use whose name was sold to plaintiff, in an action for defendant’s participation in the use of the name in connection with the name “Sholes” as applied to typewriters, evidence relating to such machines emanating from the Remington-Sholes Company, under whom defendant justified, and with the name in controversy on them, and transactions relating thereto, was admissible as res gestse.</p> <p>■ 8. Same.</p> <p>It was not material that the transactions referred to by such evidence occurred in foreign countries, since in such suit the boundaries of the dealing, and not of countries, constitute the limits of investigation; nor could the laws of such countries vary the rights of parties in the United States with respect to transactions emanating therefrom, though carried out in foreign countries.</p> <p>3. Same.</p> <p>. Plaintiffs acquired from the original manufacturers of Remington, typewriters the sole right to use the name “Remington” as a name for typewriters. Thereafter descendants of the original manufacturers, also named “Remington,” became members of a corporation making a typewriter under the name of “Sholes,” when the name was changed to the “Remington-Sholes.” Held that, since ultimate purchasers of typewriters might be led to think that the addition of the name “Sholes” was a new style of the old machine coining from the same source, such uso of the name “Kernington” was an attempt to deceive the public, and unwarranted.1</p> <p>4. Same&emdash;Names-&emdash;Ricuras of Descendants.</p> <p>No special right to use a family name which has become a trade-name applied to a manufactured article accrues by virtue of the relation which descendants bear to the original manufacturer of the same name, such descendants being entitled to no other than their natural rights to use their own names in the transaction of their own business.</p> <p>5. Same&emdash;Use of Name&emdash;Gift to Corporation.</p> <p>Though all persons have a natural right to use their own names in their own business, the giving of the name “Remington” to a corporation engaged in making typewriters by two persons of that name, descendants of the original manufacturers of Remington typewriters, who had sold the right to use the name as applied to typewriters to plaintiff, snch persons not being manufacturers of typewriters, except as stockholders in the corporation, nor having become such in their own names, nor having their own names put on the machines, was not a legitimate use of their natural right to use their name in their own business to the injury of the plaintiff.</p> <p>6. Same&emdash;Abbreviation.</p> <p>Where a corporation wrongfully used the name “Remington” in connection with the word “Sholes” as applied to typewriters, the fact that it subsequently shortened the name to “Rem-Sho” was not such a. ■ change of the term as would guard purchasers against belief that they were not Remington machines.</p>

<p>1. Trade-Mark — Unfair Competition — Injunction.</p> <p>There is a fraud on complainant, entitling it to injunction, it having the exclusive right to the name “Hostetter” as applied .to hitters, and defendant, on inquiry being made for Hostetter’s Bitters and objection made to the price named, having stated that he could sell Hostetter’s Bitters in bulk at a less price, and having thereon furnished bitters not made by complainant, in a demijohn marked “H. Bitters,” and having on another occasion, when the bulk bitters were called for, furnished an empty Hostetter’s Bitters bottle and filled it therewith.1</p> <p>2. Same — Merit—Presumption.</p> <p>Hostetter’s Bitters presumptively have merit, entitling the owner to protection against unfair competition, having been sold for years with an increasing demand.</p>

<p>Copyright — Infringement of Copyright for Photograph — Action to Recover Penalty. •</p> <p>Under Rev. St. § 4965, as. amended by Act 1895 (2 Supp. Rev. St. p. 437), no penalty is recoverable for infringement of a copyright for a pho tograph, except for such sheets of the infringing publication as have been found in the defendant's possession and seized for the purpose of forfeiture and condemnation under the preceding provisions of said section.</p>

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

The bill in the Circuit Court was to restrain infringement of Letters Patent No. 415,166, issued November 12, 18£9, to John R. Freeman for an improvement in Automatic Fire Extinguishers. 110 Fed. 528.

<p>1. Patents — Issuance—Presumptions.</p> <p>While there is a presumption in favor of the validity of a patent regularly issued, arising from such issuance, such presumption is not a conclusive one, so as to sway the judgment of the court, in an action relating to its validity, against the conviction naturally following from the evidence and the law.</p> <p>2. Same — Precipitation of Metals — Patent No. 607,719.</p> <p>Patent No. 607,719, for a process of recovering precious metals from their solution, specified that It related to the recovery of precious metals from their solution by the use of a ‘‘definite quantity” of a finely-divided precipitating reagent in a state of agitation. In an action for infringement it was proved that, in order to use the process, it was necessary to use more zinc dust than was actually necessary to precipitate the solution, to prevent the process of the redissolution of the metals, which otherwise would immediately begin, and it was contended that by reason of such fact the specification was not concise and exact, so as to enable a person skilled in the art to make use of the same, as required by Rev. St. § 4SSS. Held, that the term “definite quantity,” as used in the specification, should receive a liberal construction, and should not be limited in its meaning only to an amount of zinc dust necessary to properly precipitate the metals, but may mean the certain amount needed in either case to properly produce the result, as distinguished from an indefinite or unlimited amount, as was used in the older process.</p> <p>8. Same — Application of Old Process to New Use.</p> <p>De Lamar patent, No. 607,719, issued July 19, 1898, for a process for recovering precious metals from their solution by the use of zinc dust in a state of agitation, is an old process applied to a new use, and is anticipated by prior publications and patents, and is therefore void.</p>

<p>1. Government Contractor — Negligence—Liability to Third Party.</p> <p>A contract between the United States and contractors for tlie erection of a breakwater near the mouth of the Delaware Bay, which provides for the erection of a stake-light on the work in accordance with the instructions of the United States engineer in charge, or his agent, and its maintenance by the contractors, does not relieve the latter from liability-to third persons whose property Is damaged or destroyed by reason of the extinguishment of the light during a storm or high wind, where the contractors had knowledge of its liability so to be extinguished, and in the absence of any provision or implication to be drawn from the contract that, when necessary for the protection of navigation, the contractors should not place on the work in course of construction other lights than those mentioned in the contract or prescribed by the government officers in charge.</p> <p>& Same.</p> <p>The measure of *the contractual obligation of the contractors to the government did not necessarily limit or define the precise measure of their duty to third persons whose lives and property would be exposed to extreme peril in ease of failure to indicate at night the new construction by the maintenance of the stake-light or some other light at that point or by other means,</p> <p>a Same — Act of God.</p> <p>The accident to the steamship through running against the new construction cannot be treated as due to the act of God or vis major, as it did not result from purely natural causes impossible by the exercise of reasonable diligence and circumspection to have been perceived and therefore unreasonable to guard against.</p> <p>4. Same — Duties—Lights.</p> <p>Reasonable care and vigilance required the contractors to guard against probable consequences of the extinguishment of the light or its failure to burn at night, and, while owing to the condition of the wind or water it may have been impracticable promptly to re-light the lantern whenever the light was blown out in a storm or high wind, the contractors should, in view of the great danger to life and property resulting from darkness at that point, have either erected an electric light enclosed in a lens similar to that prescribed by the government officers in charge, which could'have been operated from shore in case of the ex-tinguishment of the stake-light, or have made such disposition of their floating plant as to warn vessels away from the new construction.</p> <p>5. Pilots — Care Required.</p> <p>Pilots whose vocation is to control the course of vessels into and out of the Delaware Bay and river and their anchorage therein, are required to exercise the care and skill of river and harbor pilots, and are chargeable with knowledge of natural objects on shore and the obstacles to navigation, and of the significance of fixed and permanent lights.</p> <p>6. Mutual Negligence.</p> <p>Held, that on the facts there was fault on both sides, and the libelant is entitled'to recover only one-half of the damages and costs.</p> <p>(Syllabus by the Court)</p>

<p>Tug and Tow — Cutting Tow Adrift in Storm — Liability of Tug.</p> <p>Evidence considered, and held sufficient to establish the claim that the action of an ocean tug in cutting adrift her tow, consisting of a dredge, four scows loaded with coal, and a water boat, during a moderate gale while off Cape Cod, and allowing them to drift on shore without any further effort to save them, was without necessity or justification, and rendered her liable for the loss.</p>

<p>In Admiralty. Suit for breach of charter.</p>

<p>In -Admiralty. Libel by charterer to recover unearned charter hire paid in advance, and cross libel by owner for damages for breach of charter.</p>

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

<p>Shipping — Breach op Charter — Delay in Reaching Port op Loading.</p> <p>A scliooner chartered for loading- at Baltimore, with privilege of taking a part cargo at New York, for ballast, to Baltimore, took on- two kinds of cargo at different places, amounting in all to 432 tons, her cargo capacity being 900 tons. Owing to delay in obtaining part of the cargo, and to bad weather, she did not leave New York until 12 days after the charter was signed, and prior to her arrival in Baltimore the charterer gave notice that he would not accept her, claiming that she had violated the charter by delay to load more cargo than was required for ballast. Held, that under the terms of the charter she was entitled to a reasonable .time, no time being stipulated, and that the amount of ballast required was a matter within the discretion of her master, having regard not only to her safety, but to her sailing qualities; that, in the absence of evidence showing that he had abused his discretion, or that there had been unreasonable delay, there was no breach of the charter which justified the charterer in refusing to accept the vessel.</p>

<p>In Admiralty. Suit to recover for salvage services, and cross libel for damages.</p>

<p>1. Collision — Steam and Sailing Vessels — Duty of Steamer.</p> <p>While the statutory rule requiring a steam vessel to keep off the course of a sailing vessel is modified where the steamer cannot obey it without serious peril to herself or other vessels, she is not justified in disobeying it until she has resorted to all other practicable means, not only to escape .the danger after it is known, but to anticipate and provide against it.</p> <p>2. Same — Steamship in Harrow Channel.</p> <p>A large steamship entering Boston Harbor accompanied by a tug, owing to her draught, was obliged to pass through a narrow channel, some 2,000 to 2,500 J'eet in length, in which she could not well maneuver. .The weather was fair, with a light wind, and there were a number of sailing vessels anchored to the south( of the channel. When partly through, a schooner was seen coming 'from among the anchored vessels on a course which crossed the channel. The steamer’s engines were reversed, and the tug was sent ahead, but did not succeed in getting the schooner out of the way, and, owing to the lightness of the wind, she was drifted by the ebb tide against the bow of the steamer and injured. Reid that, conceding that the steamer was the privileged vessel, owing to the narrowness of the channel, the claiming of such peculiar privilege imposed on her the duty, under the circumstances, of taking the precaution of sending the tug ahead to give warning before she entered the channel, and that because of the failure to take such precaution, as well -as of improper steering, and other errors in navigation, she was liable for the damage to the schooner.</p> <p>3. Same — Contributing Fault — Failure to Maintain Lookout.</p> <p>The fact that a schooner kept her course up to the time of a collision with a steamer does not excuse her failure to maintain a proper lookout, since she is not under all circumstances justified in keeping her course, and such failure will be deemed a contributory fault, notwithstanding her privilege and the fault of the steamer, where If such lookout had been maintained the collision might probably have been avoided by prudent navigation.</p>

<p>TELErroNES — Rights under Conflicting Grants — Priority of Occupation.</p> <p>Where a ciiy has granted to each oí two telephone companies the right to construct its line on the same side oí the same street, neither grant being exclusive, in the absence of any statute or ordinance regulating the construction and operation of such lines the company which is prior in grant and in occupancy has the superior right, and the second company is not entitled to plant its poles within the space previously occupied by the first company, so that they will extend up through its wires, or to occupy with its own wires the space beneath them, where it will impair the safety or interfere with the efficient operation of the first line.1</p>

<p>Telephones — Rights under Conflicting Grants — Priority of Occupation.</p> <p>Complainant constructed and nad -maintained and operated for several years a telephone line along the streets of a city under a grant which was still subsisting when the city granted to defendant a franchise to construct and maintain a line on the same side of the same streets. Neither grant was exclusive, and there was no ordinance of the city regulating the construction and operation of such lines. Held’, that complainant by its prior lawful occupancy had acquired the superior right, and that defendant was not entitled to so construct its line as to interfere with the safety or efficient operation of complainant’s system.1</p>

<p>Public Lands — Unlawful Inclosure — Suit to Enjoin.</p> <p>A bill against a defendant, under the statute for unlawfully fencing in portions of the public domain within a state, is not sustained by evidence showing that the land inclosed when surveyed will fall within section 15, which is within a railroad grant, and section 16, which is a school section owned by the state. .</p>

In Equity. On final hearing. The bill of complaint is founded on a contract made December 4, 1879, whereby the Hannibal & St. Joseph Railroad Company, defendant (hereinafter mentioned as the “Hannibal Company”) granted to the Chicago, Rock Island & Pacific Railway Company, complainant (hereinafter mentioned as the “Rock Island Company”) the right to use for the term of 25 years (1> a section of 52 miles of its railroad, and (2) its bridge at Kansas City, with certain…

<p>Indians — Taxation.</p> <p>One wliose father is a white person, and a naturalized citizen, is not an Indian for purpose of taxation, though his mother is a half-hreed Indian, and when he is 17 years old goes with her children to an Indian reservation, and has granted her application to be admitted as a member of the tribe, and thereafter lives on the reservation.</p>

<p>1. Coi/TjA'tkrat, Security — Expknsks in Enforcing.</p> <p>As against the indorsers of a note primarily liable therefor, the payee, holding a chattel mortgage as collateral, having instituted suit for and recovered part of the mortgaged cattle sold by the mortgagor, is entitled to credit for expenses of the recovery; but he is not entitled to credit for the expenses of another and unsuccessful suit 'against other parties for part of such cattle, nor for expenses of sending a man to the mortgagor’s premises to see that the security was intact.</p> <p>3. Same — Jddsment.</p> <p>Tlie payee of a note is entitled to judgment for tlie full amount thereof against the indorsers thereof, notwithstanding he has a chattel mortgage on cattle as collateral security, and on instituting replevin therefor, and giving a bond, has obtained possession thereof, the final judgment being' against him for the value of the cattle; and this though he has appealed from the judgment, though, if he succeeds on the appeal, they will have a claim against him.</p>

<p>Municipal Bonds — Action against City.</p> <p>In case of bonds issued by a city under Act Cal. March 23, 1876, authorizing the widening of a street and the issuance of the bonds therefor, and providing, as recited in the bonds, that they shall be payable at the office of the city treasurer from the fund that may be raised by taxation of the property benefited, and that the completion, of the work shall operate as an acceptance by the landowners of the lien created by tbe act and a waiver of all claim on the. city for the debt,' action cannot, where no fund is collected for payment of the bonds, be maintained against the city for a judgment that a certain amount is due on the bonds, and that the judgment be paid from the fund as provided in the'act, or by enforcement of any lien created by the act against the bonds; the owners of such lands are the proper defendants.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Lien ok Attachment.</p> <p>Bankr. Act 1S98, § 67f, providing that “all levies, Judgments, attachments, or other liens” obtained through legal proceedings against an insolvent, within four months prior to filing of petition in bankruptcy against him, shall be void if he is adjudged a bankrupt, does not render void the lien of an attachment in action at law, though dependent for enforcement on a judgment obtained within such four months; the attachment having been served prior to such time.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Exemptions —Partnership Property.</p> <p>Under the exemption law of New Jersey (Gen. St. p. 1421, § 35), which provides that “goods and chattels of every kind not exceeding in value $200, the property of any debtor having a family resident in this state,” shall be exempt from levy, etc., a bankrupt is not entitled to such exemption out of the assets of a partnership.</p>

<p>In Bankruptcy. On petition oí the John B. Stetson Company.</p>

<p>In Equity. Suit for unfair competition.</p>

<p>In Equity. Suit for infringement of patent. On motion to reopen case.</p>

<p>1. Patents — Construction op Claims.</p> <p>Tlie effort should he, in the construction of a patent, to ascribe a purpose to each claim, and to avoid a construction which would deprive a claim of a distinct purpose.</p> <p>2. Same — Infringement—Switch por Electric Motors.</p> <p>The Oondict patent, No. 393,323, for a switch for electric railway motors, construed, and Md valid and infringed as to claims 27, 29, 31, 21, 22, and 10, and not infringed as to claims 20, 28, 23, 21, and 30, but that claims 2 and 7 are invalid.</p>

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

<p>In Equity. Suit for infringement of the first claim of letters patent No. 390,921, issued to Charles J. Van Depoele October 9, 1888.</p>

<p>1. Patents — Amendment of Application — Inserting New Claims.</p> <p>The fact that the original application for a patent contained only claims for the method of producing an article does not preclude the applicant from introducing hy amendment claims covering the apparatus by which such method is carried out, as well as the product, where both the apparatus and product are described in the specification and constitute a part of the actual invention; and a patent issued on the amended application is not invalid as to the apparatus and product because they were in public use and on sale more than two years before the amendment was filed.</p> <p>2. Same — Abandonment.</p> <p>Where an inventor has filed more than one application for a patent covering the same invention, his permitting one of such applications to lapse does not constitute an abandonment.</p> <p>S. Same — Infringement—Kinetografhic Camera.</p> <p>The Edison patent, No. 589,168, for a kinetographic camera, claims 1, 2, and 3, were not anticipated and are valid. Claim 5, which covers a tapelike photographic film having thereon a series of photographs of successive positions of an object in motion, is also valid, being for a thing previously unknown, and is not limited to the product of the particular apparatus described in the prior claims. All of said claims also held infringed. . .</p>

<p>Patents — Suit eok Infringement — Stay op Injunction Pending Appeal.</p> <p>Where difficult and doubtful questions are involved in a suit for infringement of a patent, and the injunction awarded to complainant by the final decree would work peculiar injury to defendant in case of reversal, owing to the diversity, public character, and intricacies of its business, the court may properly stay such injunction pending appeal, on condition that defendant files statements showing the business done in the meantime which would be prevented by the injunction, gives security for the payment of the profits and damages arising out of such business in case of affirmance, and prosecutes the appeal with diligence.</p>

<p>1. Patents — Construction of Claims.</p> <p>Unless the language used clearly requires it, a court will not import into a claim of a patent a feature of construction fully covered by another claim, merely for the purpose of sustaining the claim, and subjecting another to the charge of infringement.</p> <p>3. Same — Ore-Roasting Furnace.</p> <p>Claim 4 of the Brown patent No. 471,264, for an ore-roasting furnace, which covers “in an ore-roasting furnace a wheeled carrier, adapted to travel within the same, having a laterally projecting arm, to which the stirrers or blades are attached, and means for operating the carriers, substantially as herein described,” cannot be construed as making the supplemental chamber and slotted wall, described in the specification, and covered hy claim 1, an element of the combination, and without it the claim is void for anticipation. ,</p> <p>.3. Same — Suit for Infringement — Costs.</p> <p>Tinder Tier. St. § 973, where a complainant alleges infringement of two claims of a patent, and recovers as to one, but the other is held void for anticipation, he cannot recover costs.</p>

<p>1. Neoliokncb — Burden of Proof.</p> <p>Where elevated bins holding' crushed stone gave way, precipitating the stone, etc., into the water, and damaging a scow moored beneath them for the purpose of loading stone thereon, the burden was on the owner of the bins to show freedom from negligence.</p> <p>2. Sam e — Evi denoh — Sufficiency.</p> <p>Elevated bins loaded with crushed stone gave way, precipitating the stone into the water, and damaging a scow moored beneath for the purpose of being loaded with stone. The bins wore not overloaded at the time, and had been frequently examined without finding defects. They were erected by a competent engineer. Two witnesses testified that they told the man in charge of the scow to move it 20 minutes before the accident occurred. Held insufficient evidence to show negligence on the part of the defendants, but negligence by the scowman, the libelant’s employé.</p>

<p>1. Carriers of Passengers — Injury to Passengers — Presumption of Negligence.</p> <p>Tlie explosion of a steam drum on a steamer, by which passengers were injured, is prima facie evidence of negligence on the part of the carrier in a proceeding to recover for such injuries.</p> <p>2. Same — Passenger Riding on Pass.</p> <p>The obligation of a carrier as to the care required for the safety of a passenger is precisely the same to a passenger riding on a free pass as to those 'who pay fare, in the absence of a special agreement by which he assumed the risk of injury from .the negligence of the carrier or its servants.1</p> <p>8. Master and Servant — Injury to Servant — Liability of Master.</p> <p>In an action against the owner of a steamboat to recover for the death of a fireman employed thereon through the explosion of a steam drum near which he was working. 1he fact of the explosion is not sufficient to charge the defendant with liability, but the burden rests on plaintiff to further prove that defendant failed in its duty to exercise reasonable care to make and keep the drum in a safe condition.</p> <p>4. Same — Place to Work — Failure to Make Proper Inspection.</p> <p>A steam drum connected with the boilers of a steamboat exploded, killing a fireman, who was working near. The drum had been in use several years, and tbe steam pressure at the time of the explosion was less than the boilers were permitted to carry. A short time previously a leakage of the drum had been discovered, but no examination or test was made to discover its cause. Held, that the bursting of the drum must be attributed to its having become' weakened from some cause, which the evidence tended to show might also have been the cause of the leakage, and that the owner of the vessel, which was the employer of the deceased, was liable for the death under a state statute giving a right of action therefor, on the ground that it failed in its duty to exercise reasonable care to make the drum safe by a proper inspection and repairs.</p> <p>5. Same — Delegation of Duty by Master.</p> <p>A masier cannot relieve himself from liability for the negligent performance of a positive duty, which he owes to a servant in respect to the safety of the place where the servant is required to work, by delegating such duty to others.</p> <p>6. Wrongful Death — Damages Recoverable — California Statute.</p> <p>Under Code Civ. Proc. Cal. § 377, giving a right of action for wrongful death to the heirs or personal representatives of the deceased, to recover such damages “as, under all the circumstances of the ease, may be just,” the measure of damages in such an action is the probable pecuniary loss to the plaintiff, or those In whoso behalf he sues. The mere fact of heirship does not give a right to damages, and where the only heirs of the deceased are collateral relatives only nominal damages are recoverable without proof of actual or probable pecuniary loss.</p> <p>7. Admiralty — Actions for Personal Torts — Nominal Damages.</p> <p>Nominal damages for personal torts are not awarded by courts of admiralty.</p>

<p>In Admiralty. Proceeding for limitation of liability.</p>

<p>In Admiralty.</p> <p>This action was instituted originally by J. Raymond Smith against Henry P. Booth alone, as sole member of the firm of James E. Ward & Co., to recover the value of 1902 bags of rice, which were lost overboard from the lighter Mary Elizabeth on September 1, 1898, by her capsizing while lying alongside the steamer Avala, engaged in transshipping rice from the lighter to the steamer.</p> <p>The rice was shipped at Liverpool, England, by Messrs. Twigge & Oros-fleld, on the steamer Teutonic, under 8 bills of lading, each covering 250 sacks, for transportation to Now York, and there “to be delivered in like good order and well-conditioned (.subject to various exceptions here immaterial) unto James E. Ward & Co., and by them to be transshipped and forwarded thence, by one of the steamers of James E. Ward &„Oo., at shipowners’ expense, conveying ilie goods under the terms, tenor, and conditions of the bill Of lading- of the aforesaid company, at risk and expense of shippers and consignees, and deliver same at port of Havana, unto order, or assigns.”</p> <p>The bills of lading were indorsed in blank and sent to Brown, Martinez & Co., of Havana, who thereby became entitled to delivery of the rice at Havana. The rite was insured by the Maritime Insurance Company, Limited, of Liverpool, in the amount of £2,250 British sterling under a valuation of £2,500. Twigge & Crosfleld, Brown, Martinez & Co., and the Maritime Insurance Company, Limited, made assignments , of their interests to the libelant.</p> <p>On arrival of the Teutonic at New' York, Ward & Co. received the rice, and made the necessary entry at the custom house for the purpose of transshipment. James E. Ward & Co. at this time had no steamers of their own. They had formerly run a line of steamers to Cuban and Mexican ports wTtieh was then and still is known as the “Ward Line”; but some years before this shipment they transferred all their steamers to the New York & Cuba Mail Steamship Company, a corporation by which the business of the line was thereafter, and is still conducted. James E. Ward & Co. were the agents of that corporation, and the defendant Henry P. Booth the solé member of the firm, was and is its president. His answer averred that he had employed the Export Lighterage Company for the transshipment of goods from the Teutonic to the Avala, one of the steamship company’s chartered vessels, and that the Export Lighterage Company had chartered the lighter, Mary Elizabeth, from the Merritt & Chapman Derrick & Wrecking Company, by whose fault, if any fault there was, the lighter capsized; and on his petition the Merritt & Chapman Derrick & Wrecking Company was cited into the cause as defendant under the fifty-ninth rule. The latter company answered that it had no connection with the Mary Elizabeth except as agent of the Commercial Lighterage Company, another corporation, which owned the lighter; and on Booth’s second petition the Commercial Company was cited under the fifty-ninth rule as an additional defendant. By various amendments to the libel, the Export Lighterage Company was also made defendant, and it was finally alleged that the rice was in the Joint possession of Booth and that company, and that the loss occurred through their Joint fault and negligence, and the Joint fault and negligence of those to whom the work of transshipment had been intrusted.</p> <p>The Export Lighterage Company by its answer alleged that the loss did not happen through any defect of the lighter, its loading, or the manner of discharge; that it had no contract with the libelant’s assignor, and that it was not answerable for the loss. The Commercial Lighterage Company denied any negligence on its part, and by amendment pleaded that the value of the vessel did not exceed the sum of $800, to which sum it claimed to limit its liability, if any liability existed.</p>

<p>Admiralty — Collision—Axchora&m Ground — New York Bay — Smoke—Fog.</p> <p>A steamer passed the Narrows and came into New York Bay at night without a pilot, and came to anchor considerably to the east oí the anchorage grounds fixed by the secretary of the treasury, which jwere marked by buoys; the master not knowing the true boundaries "of the grounds, though the rule had been in force since 1888. A tug and tow were passing out, and the steamer was not seen by the tug until she was within 300 feet from her, when the steamer was discovered straight ahead. The tug then endeavored to avoid collision, and passed about 150 feet to the east of the steamer, which was struck by the tow. The night was clear, except for patches of fog and smoke, which obscured view of vessels but for a few minutes. The steamer’s anchor light was visible at Himes at least from one to two miles while the tug was slowly approaching her. Helé, that both steamer and the tug were at fault for the collision; the steamer in anchoring outside the limits of the anchor grounds, and the tug in not keeping a proper loot out, — and that the damages and costs should therefore be divided.</p>

<p>ADMIRALTY — COLLISION—FERRYBOATS—Tu« AND TOW.</p> <p>Inland navigation rules, article 19 (2 Supp. Rev. St. p. 639), gives a tug and tow going up East river riglit of way over ferryboats. Article 22 requires ferryboats to avoid crossing ahead of a tug and tow, if the circumstances admit, and article 23 declares that a ferryboat, on signaling to cross a tug and tow, and getting no answer, shall' stop and reverse. Helé that, where a ferryboat on coming from her slip was 1,000 feet from a tug and tow coming up the river about midstream, and though there was no reason why the ferry could not have passed astern of the tow, she claimed to have sigrnled to pass in front, and, on getting no response from the tug, kept her course until she was within 50 feet of the tow, when she endeavored to stop, but was struck by the tow, the ferryboat was at faul., and was not entitled to maintain a libel against the tug and tow.</p>

<p>1. CARRIERS OB' PaSSENGF.RS — SPECIAL TICKETS — CONTRACT PROHIBITING TRANSFER.</p> <p>A common carrier iias a right to issue and sen special tickets at a reduced rate of fare in consideration of the purchaser’s agreement to certain conditions and limitations contained therein, among which it may he stipulated that the ticket shall not be transferred, and the use of such a ticket by another to whom it has been transferred in violation of the contract is an actionable wrong.</p> <p>2. Same-Contract Made by Ticket — Interference with Performance by Third Parties.</p> <p>A railroad ticket broker who induces the purchaser of a special ticket, in which he has agreed, for a valuable consideration, not to transfer the same, to violate such agreement by selling the return portion of the ticket for the purpose of having' it used by another, is guilty of an actionable interference with the performance of the contract.</p> <p>3. Federal Courts — Parties to Suit in Equity — Dismissal as to Certain Defendants.</p> <p>A federal court may dismiss a suit as against defendants between whom and the complainant the requisite diversity of citizenship does not exist, and retain it as to remaining defendants over whom it has jurisdiction, where the defendants dismissed are not indisptensable parties, and their dismissal will not prejudice the rights of the others.</p> <p>4. Injunction — Parties—Joinder of Defendants.</p> <p>In a suit by a railroad company for an injunction to restrain the purchase from passengers of partly-used tickets, nontransferable by their terms, and their resale for use in violation of the contract contained therein, where different brokers are engaged in dealing in the same class of tickets, all or any number of them may be joined as defendants.</p> <p>5. Jurisdiction of Federal Courts — Amount in Controversy — Suit for Injunction.</p> <p>In a suit for an injunction the amount involved for the purpose of determining the jurisdiction of a federal court is the value of the right to be protected, or the extent of the injury to be prevented, by the injunction. i</p> <p>6. Injunction — Grounds—Inadequacy of Legal Remedy.</p> <p>A court of equity has jurisdiction of a suit to enjoin wrongful acts by defendants whore the complainant’s legal remedy involves numerous actions against irresponsible defendants, to recover small sums, in which tlio damages would not be clearly susceptible of proof, and which, if successful, would not result in any practical benefit to complainant.</p> <p>7. Equity — Right to Invoke Jurisdiction — Protection of Contracts Arising Out of Unlawful Combination.</p> <p>In a suit by a railroad company to enjoin the defendants, who were ticket brokers, from dealing in special tickets issued by complainant on account of the Pan-American Exposition, which were by their terms nontransferable, it appeared from the showing made on a motion for a preliminary injunction that complainant was a member of a combination known as the “Trunk Line Association,” formed by a number of railroads operating in different states for the purpose of preventing competition; that the passenger receipts of all such roads were pooled and divided on an agreed basis; and that the special rates made on account of the Exposition were fixed, and the terms of the tickets which were the basis of the suit prescribed, by such association through its passenger committee. Held, that such combination was illegal, as in violation of the federal anti-trust law (26 Stat. 209), and that complainant could not invoke the aid of a federal court of equity for the protection of rights claimed under contracts which were the direct result and evidence of such unlawful combination.</p>

<p>1. Iujdnctior — Labor Strike — Unlawful Interference with Employer’s Business.</p> <p>The law governing courts requires them to exercise strict care, in the issuance of injunctions, to respect and protect the legal rights of those against whom they are'directed; and by analogy, and for stronger reason, the law will not countenance the action of members of a labor organization, who are on a strike, against their employer, in assuming to issue and enforce an edict that such employer shall not be permitted to o'perate his plant, and that nonunion men shall not be allowed to enter his employment. Such action is, in effect, the issuance by a self-constituted tribunal of an injunction unknown to any recognized law, and which no court would have authority to grant; and it is the clear right and duty of a court, on proper application therefor, to prevent by injunction the attempted enforcement of such an order by the use of force or a show of force.</p> <p>2. Same — Maintenance of Pickets — Intimidation of Workmen.</p> <p>A labor union, whose members are on a strike, has no lawful right to maintain an organized force of pickets around the works of the former employer for the purpose of preventing by force the operation of such works, or of intimidating nonunion men, and preventing them from entering or leaving such works by a show of force; and the fact that for months, during all of which time such pickets have been maintained, the nonunion workmen employed in the plant have either remained in the works or left and returned to them only under the protection of guards is evidence that intimidation, if not actual force, has been employed, and that such is the purpose of maintaining the picket; and a court of equity is authorized to enjoin its further maintenance as an unlawful interference with the rights of both employer and workmen.</p>

<p>1. Parties — Regulation of Water Rates — Suits to Test Validity of Ordinance.</p> <p>A suit by a company furnisiiing water, appropriated under tbe laws of California, to consumers, for irrigation and other purposes, to test the validity of rates fixed by a board of supervisors as required by statute, is properly brought against the board, which, as representing the public generally in the matter, is authorized to defend in behalf of all parties interested.</p> <p>2. Water — Regulation of Rates — California Statute.</p> <p>Under Act Cal. March 12, 1885, requiring boards of supervisors, on petition of 25 inhabitants who are taxpayers of the county, to fix maximum rates at which any person, company, or corporation may sell, rent, or distribute water appropriated for the purpose under the laws of the state, the validity of an ordinance fixing such rates is not affected by the fact that the petitioners were not consumers of water from the company furnishing the same, nor that they were procured to sign the petition by consumers who did not desire to become petitioners, because of the possible effect such action might have on their rights in pending litigation with the company. '</p> <p>8. Same — Reasonableness of Rates.</p> <p>In exercising the power delegated by the statute of California to boards of supervisors to fix maximum rates of compensation to be charged to consumers for water appropriated for sale under the laws of the state, the question of the reasonableness of the rates fixed is primarily one for the determination of the boards, and the courts are not authorized to interfere with the enforcement of rates so established unless they ai*e so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of private property for public use without just compensation.</p> <p>4. Same — Basis for Fixing Rates — Value of Plant.</p> <p>Act Cal. March 12, 1885, makes it the duty of boards of supervisors, on petition, to fix maximum rates which may be charged to consumers for water by persons or companies appropriating the same. It provides that the 'boards “shall estimate, as nearly as may be, the value of the canals, ditches, flumes, water chutes, and all other property actually used and useful to the appropriation and furnishing of such water,’’ belonging to the person or corporation whose franchise shall be so regulated and controlled, and their annual reasonable expenses, and for that purpose may require the attendance of witnesses and the production of books and accounts; that in fixing such rates they shall, as near as may be, so adjust them that the net annual receipts and profits of the persons or companies so furnishing water shall not be less than C nor more than 18 per cent, “upon the said value of the canals, ditches, flumes, chutes and all other property actually used and useful to the appropriation of such water.” It also provides for a readjustment of the rates fixed, on petition, to take effect at any time after one year. Held, that such act does not make the cost of the plant used in appropriating and furnishing water the test of its value for the purpose of fixing rates, but requires such rates to be based upon its actual value at the time, as determined by the board, notwithstanding a further provision that the cost of extensions, enlargements, and other permanent improvements shall not be included as a part of operating expenses, “but when accomplished may and shall be included in the present cost and value of such work.”</p> <p>5. Same — Deterioration op Plant.</p> <p>The fact that a board, in fixing rates under such statute, made no allowance for the deterioration of the plant, does not authorize a court to declare the rates fixed unreasonable, although such fact of deterioration should properly be taken into consideration, since the court can consider only the final result of the board’s action as embodied in the ordinance, and not the processes by which such result was reached.</p>

<p>1. Intekbst — When Recoverable — Surety.</p> <p>A surety on the bond of a contractor for government work, which has been ready and willing at all times since the default of its principal to fulfill its obligation to the extent of its liability, but has been obliged to invoke the aid of a court of equity to marshal and adjust the claims, which exceed the penalty of the 'bond, cannot be charged with interest on the amount of such penalty because of the delay incident to such proceedings.</p> <p>2. Contracts for Government Work — Bonds of Contractor — Construction of Statute.</p> <p>Act Aug. 13, 1894 (28 Stat. 278), requiring the bond of a contractor for government work to be conditioned that he will promptly make payment to all persons “supplying him labor and materials in the prosecution of the work,” should receive the liberal construction necessary to effect its purpose. It is not to be strictly limited, like mechanic’s lien statutes, so as to protect only those supplying labor or materials which add to the value of the improvement or structure, nor, on the other hand, should it be extended to claims for labor or materials which only incidentally relate to the prosecution of the work, such as the construction or permanent improvement of the plant or equipment of the contractor, which are capable of use in other work, or to the ordinary claims of a public carrier for freight, for which the law gives a lien; but this limitation does not apply to those making incidental repairs to equipment, or to truckmen or others who transport materials for short distances, and who, although having a lien, are not expected, in the usual course of business, to exact payment before delivery.</p> <p>3. Subrogation — Security Taken by Surety — Privity</p> <p>A creditor of a contractor for public worli, whose claim is not within the class secured by the statutory bond given by the contractor, has no privity with the surety on such bond which entitles him to be subro-gated in equity to a security taken by such surety to indemnify it against loss by reason of its suretyship.</p> <p>- 4. Principal and Surety — Indemnity Taken by Surety.</p> <p>A surety for a contractor for government work, who took an indemnity agreement from the contractor and another, cannot he prejudiced by any ■undisclosed relation between the. signers of. such agreement as that they were partners in the contract; and the fact that the surety has been reimbursed for a payment of one claim through the indemnity does not enlarge its liability to other creditors of the contractor, as to whom, in the marshaling of claims, the claim paid must be treated as though the surety had not been reimbursed.</p> <p>6. Bonds — Marshaling of Claims against Surety.</p> <p>In marshaling claims against a contractor, as against the surety on his bond, conditioned for the payment of such claims, where the claims exceed in amount the penalty of the bond, the fact that certain of the claims have been purchased by one who has bound himself to indemnify the surety against its liability on the bond does not increase the amount to which other claimants are entitled, and for the purpose of making distribution to them such claims must be treated as still subsisting.</p> <p>6. Same — Form of Decree.</p> <p>Giving form of decree for preliminary marshaling and distribution, pending the disposition of claims, over which the court has not obtained jurisdiction..</p>

<p>1. Ejectment — Evidence oe Title.</p> <p>As plaintiff in ejectment must recover, if at all, on his own title, evidence to show defendant’s title is subject to objection.</p> <p>2. Estoppel.</p> <p>Laws N. C. 1889, c. 243, § 2, declaring swamp lands not listed for taxes forfeited to the board of education, does not estop plaintiff in ejectment against a private person from claiming title.</p>

<p>ANCILLARY Bill — Dismissal.</p> <p>A suit for injunction, being ancillary to an action in ejectment which has been decided against complainant, will be dismissed.</p>

<p>1. Mines — Location—Instructions.</p> <p>'Plaintiff Raving discovered a mine, and attempted a location which was invalid, and defendant having made a location thereof before plaintiff’s second location, and there being no contention that defendant had failed to comply with the law, unless his location was invalid, an instruction, in action for the mine, that, plaintiff’s first location being invalid, if defendant’s location was valid, “I am of the opinion that de- . fendant ought to recover in this case. But I do not so instruct you. I leave the matter open for your own determination,” — is erroneous, as allowing the jury to give a verdict contrary to the law, doing equity according to their own feelings.</p> <p>2. Same — Notices.</p> <p>Where the location of a mine by plaintiff was invalid, admission of ■ his location notices to show discovery is prejudicial to defendant, wbo made a subsequent valid location, defendant not being a trespasser or ■ jumper.</p>

<p>On Motion to Set Aside Service of Summons After Removal of Cause.</p>

<p>1. Bankruptcy — Discharge—False Oath.</p> <p>To render the verification of schedules from which property has been omitted the making of a false oath within Bankr. Act 1898, § 29b, cl. 2, which will defeat the right of the bankrupt to a discharge, tlie omission must have been knowingly and fraudulently made.</p> <p>2. Same — Filing Amended Schedule.</p> <p>The fact that a bankrupt obtains leave and files an amended schedule including property omitted from his former schedule is not, conclusive evidence that tlie omission was not made knowingly, and with fraudulent intent, so as to overcome the charge of making a false oath to the original schedule, though it may he considered as tending to show absence of any wrongful intent.</p> <p>3. Same — Evidence Considered.</p> <p>A bankrupt omitted from his schedule certain stock which he owned of the par value of $3,000, which some two years before he had sent to an agent for sale. It was then subject to sale for unpaid assessments made thereon. Subsequently the bankrupt had become insolvent, and all his property had been placed in the hands of a receiver. Fending the bankruptcy proceedings, he was called as a witness in a suit in a state court, and testified to such facts, and that he had forgotten the stock, not having regarded it of value, and did not know what had been done with it. He subsequently filed an amended schedule, in which he included the stock, and offered to surrender it to his trustee. Reid that, even if the testimony of tlie bankrupt in the state court be considered, it did not establish the charge of knowingly and fraudulently making a false oath to the original schedule, which would defeat his right to a discharge.</p>

In Bankruptcy. On review of decision of referee. The facts as found by the referee in bankruptcy, and to which no exceptions are taken, are substantially as follows: The bankrupt is 26 years old, an unmarried man, and the owner of a lot, with a small house thereon, which he claims as exempt as his homestead. He purchased it with the proceeds of a legacy left him by an aunt about 5 years ago.

In Bankruptcy; On review of referee’s decision. The following is the opinion-pf Warner, Referee: Lovett, the creditor, worked for Jones, the debtor, during a part of the .year 1895 and to September 3, 1S96, on which date there was a balance due Lovett for wages of $175, for which amount Jones gave his demand note, on which cash payments have been made as follows: November. 14, 1890, $10; December 26, 1896, $5; January 16, 1897, $5; April 23, 1898, $10, — amounting in all to…

<p>1. Bankruptcy — Preferences—Debts Subsequently Contracted.</p> <p>Tke payment by an insolvent of an existing debt, either in full or in part, does not constitute a preference as regards a new indebtedness contracted subsequently, to which the payment could have had no relation, and the creditor is not required by Bankr. Act 1808, § 57g, to surrender such payment before he can prove the subsequent debt against the estate of the debtor in bankruptcy; but where a noLe is given for all or a part ol' the prior debt,' which is still held by the creditor when the subsequent debt is contracted, its payment thereafter is a partial payment on the entire indebtedness then existing, of which it ’is a part, and constitutes a preference which must be surrendered before the remainder of such indebtedness can be proved.</p> <p>2. Same — Proof of Claims — Surrender of Preferences.</p> <p>Bankr. Act 1898, § 57g, requiring a creditor who has received preferences to surrender the same before his claim will be allowed, is not confined in its application to preferences received within four months prior to the bankruptcy, but requires the surrender of all preferences as defined in section 60a, which contains no time limit; the only limitation being the debtor’s condition of insolvency when the transfer of property by payment or otherwise was made.</p> <p>3. Same — -New Credits.</p> <p>The provision of Bankr. Act 1808, § 60c, allowing new credits to be set off against preferences, is applicable only in cases arising under subdivision “b” of tbe same section, where it is -sought to recover such preferences, and does not affect section 57g, requiring the surrender of preferences to entitle the creditor to prove his claim.</p> <p>4. Same — Preference—Credit for Labor of Debtor.</p> <p>The performance of labor by an insolvent debtor for his creditor, for which he is given credit on his indebtedness, is not a transfer of property which constitutes a preference under Bankr. Act 1808, § 60a.</p>

<p>Bankruptcy — Composition—Withdrawal of Acceptance by Creditors.</p> <p>Creditors of a bankrupt, wbo have signed an acceptance of an offer of composition, and invoked the action of the court thereon, will not be permitted to withdraw their signatures, where it is not alleged that they were procured by fraud or misrepresentation.</p>

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

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

<p>Pleading — Demurrer—Motion to Strike Out.</p> <p>A court will not enter upon a full investigation of the- merits of a demurrer on a motion to strike it out as frivolous, but if after a bearing the court entertains doubts upon tbe issue raised, the motion should be denied.</p>

<p>1. Patents — Suit for Infringement — Demurrer.</p> <p>Wliere a bill for infringement makes profert of the patent, It will be considered as before the court for the purposes of a demurrer, on the ground that the patent is invalid on its face.</p> <p>2. Same — Invention—Hail way System.</p> <p>The Carpenter patent, No. 570,451, for a bitransit railway system, which consists of employing four tracks, two for through, and two for local, trains, with transfer stations at intervals, is void on its face for lack of patentable invention.</p>

<p>Patek ts — Inert ngement.</p> <p>The Cary patent, No. 403,247, claim 2, for a reel for metal box straps, held infringed on a motion for a preliminary injunction, under the construction placed thereon in a prior decision.</p>

<p>Patents — Anticipation—Tubular Ball Mills.</p> <p>The Davidsen patent, No. 518,116, for a tubular ball mill for the pulverization of various materials, is void for anticipation.</p>

<p>Patents — Validity and Infringement — Electro-Magnetic Motors.</p> <p>The Tesla patents, No. 381,968 and No. 382,279, each for electro-mag-netic motors, and No. 382,280, for a method of electrical transmission of power, and all relating to the transmission of electrical power by alternating currents, and its utilization at distant points, were not anticipated by anything- in the prior art, and are valid. Also held infringed.</p>

<p>In the Burnham & Alsup patent, No. 550,587, for an improvement in crank hangers for bicycles, claims 1 and 2 cover only combinations of old devices, which perform no new functions, and accomplish no new results, and such claims are therefore void for lack of invention. Claim 4, however, the essential feature of which is the placing of the ball--bearing cones in the hollow hubs in the same plane as the cranks, thus securing the greatest possible distance between the bearings without increasing the width of the tread, embodies a new and useful improvement, and discloses patentable invention. Such claim, however, held not infringed.</p>

<p>In Equity. On final hearing of bill for infringement of letters patent No. 449,880, for “supply connections for basins or baths,” issued April 7, 1891, to Edward Hammann, assignor to the complainant. The specifications and claims of the patent are as follows:</p> <p>‘‘Bath and basin connections have before been made in which either hot or cold water, or a mixture of the two, can be delivered by one nozzle or bib into the bath or basin, and in these cases, the cocks or valves for regulating the water have sometimes been below or behind the bath or basin, and in other instances they have been above the slab. The object of the present invention is to simplify the mode of construction and to facilitate the connection of the respective devices to the slab, and at the same time to combine with the hot and cold water supply pipes and cocks a standpipe and overflow that serve as a foundation or support for the respective parts that supply and regulate the hot and cold water. In the drawings, Fig. 1 is a vertical section through the nozzle or bib and the standpipe, Fig. 2 is an elevation partially in section, and Fig. S is a sectional plan at the line, x, x. The hot-water valve or cock, A, and cold-water valve or cock, B, are to be of any desired construction. Usually they are what is known as a ‘globe valve,’ the water-supplying pipes being connected by couplings at the lower ends, as seen at 2 and 3, and the water passes off laterally above the valve by- the pipos, 0, O', to the hollow water way, D, from which rises the mixing column, IS, that passes through the slab or plate, F, surrounding the upper part of the bath tub, or beneath which the basin is attached; and there is a bib or nozzle, G, the under surface of which may rest upon the top of the slab, F, and the end is turned downwardly into the bath or basin, and the top end of the mixing column, E, passes into the bottom of this bib, and is screwed or otherwise permanently fastened there-into; and it is usually preferable to pass the lower end of the mixing column, E, through the hollow water way, D, and' fasten the lower end théreof by the nut, 4, there being washers between the nut and the surface of the water way and a collar, at 5, around such mixing column, E. The pipes, C and O', are preferably made with the water way, D, and screwed at their ends to the hot and cold water cocks, respectively. The caps, 6, of the respective hot and cold water valves, A, B, are tubular, and extend around the stem, 7, up to the sockets, 8, that pass through the slab, F; and there are fiat rings or disks, H, below the flanges of the sockets, 8, and resting upon the slab, F, which rings are usually marked with the word ‘Hot’ or ‘Cold,’ to indicate the temperature of the water, and upon the upper ends of the stems, 7, are the hand wheels, I, by which the stems are turned to admit or exclude water by the respective valves. In cases where a standpipe and overflow is not used in connection with the cocks, pipes, .and bib described, it is preferable to make use of lock nuts beneath the slab and around the mixing column, E, and the tubular portions of the caps, 0, to claim) the respective parts to the slab, as at S; and 1 remark that these parts, thus far described, are easily constructed and attached, either to the slab of the basin or to the rim or plate of the bath tub, and the. parts are highly ornamental; but the parts that are above the slab are neither large nor numerous, hence there is but comparatively little area or surface that requires to be plated and finished in the manner now usual with the best class of work. When a. standpipe and overflow is made use of in connection with the parts heretofore described, the water way, I), is usually semicircular, to partially surround the standpipe, K, and be steadied thereby, and there is a tubular coupling, Tj, into which the upper end of the standpipe, K, is screwed, and which tubular coupling, Tj, passes through the slab, E, and is held in place by a lock nut, 10; and to obtain a more ornamental finish, and to support the nozzle or bib, 6, I usually extend such nozzle or bib In the form of a ring, G', around the tubular coupling, L, so that such ring, G', is firmly held to the surface of the slab by the flange, 11, resting upon such ring. G', and being pressed thereto by screwing up the lock uut, 10. The standpipe, K, is to he provided with a connection at the lower end to the waste pipe or drain, and there is also usually a lateral connection to the bottom of the basin or hath tub, as seen at N, and within the standpipe is an overflow pipe, I\ having a valve, 12, around the lower part thereof, which rests upon a seat below the lateral pipe, N, and serves to retain water in the basin or hath until the overflow pipe is elevated, and this overflow pipe, P, has holes in it at the level at which the water Is to stand, and the pipe extends up through the tubular coupling, Tj, and there is a cap, Q. at its upper end, and a slot and pin by which the overflow pipe can be held up while the water is running out of the bath or basin. This standpipe, overflow pipe, valve, and cap are similar to those represented in the patent of John Demurest, No. 358,147, or such standpipe and overflow pipe might he similar to those represented in the patent of IV. S. Carr, No. 170,709. This fixture, as a whole, is very neat, artistic, easily kept clean, and projects hut little above the slab. It will he apparent that in consequence of the mixing column, E, passing into the hollow water way, D, and having lateral openings for the water to pass from the water ways into the column, and being held by the removable nut, 4, the hot and cold water valves can be disconnected from the mixing column and the bib by simply removing the nut, 4, without disturbing any of the other parts of the apparatus. This is a convenience, because it allows the cocks or valves, or either of them, to he separated for grinding or repairing, as may become necessary from time to time. It will also he apparent that the tubular coupling, L, may he formed with the standpipe, K, or permanently fastened thereto, and the ring, G', may he of any desired ornamental shape to surround the upper part of the standpipe, and be held by the flange, 11, when the nut, 10, is screwed up against the under side of the slab. Above the bib, and supported by the same or by the mixing column, there is a fixed cup, R, that is adapted to the reception of rings or jewelry, and, as this is a rigid fixture, there is no risk of an article placed therein being shaken out in moving either valve or the overflow pipe. I claim as my invention: (1) The combination, with the bib or nozzle. G, and the mixing column, IQ, therewith connected, and passing down through the slab, of the hot and cold water valves, the water ways connecting the respective valves, there being an opening through the water way, D, for the mixing column, E, to pass through, the collar, 5, around the mixing column, and the nut, 4, screwed to the lower end thereof for confining the parts in position, the mixing columns having holes through the same opening into the water way, D, substantially as set forth. (2) Tlie combination, with the hot and cold water valves and the connecting water ways between the same, of the mixing column and the bib or nozzle above the slab, the standpipe, K, the tubular coupling at the upper end thereof, and the lock nut for connecting the standpipe permanently with the slab, and for holding (he bib or nozzle to such slab, substantially as set forth. (3) The combination, with the hot and cold water supply valves and pipes, of the bib or nozzle, adapted to rest upon the top of the slab,’ and haying a ring extending from the rear end of such bib or nozzle, and the standpipe and its coupling, passing through the slab, and through the said ring, and holding the same in position, substantially as set forth. (4) The combination, with the hot and cold water valves and the connecting water ways between the same, of the mixing column and the bib or nozzle above the slab, the standpipe, K, opening through such slab and connected therewith, and the overflow pipe within the standpipe, substantially as set forth. (5) The combination, with the hot and cold water valves and the connecting water ways between the same, of a mixing column and a bib or nozzle above the slab and connected with the mixing column, the standpipe, K, passing through the slab and holding the bib in position, substantially as set forth. (6) The combination, with the hot and cold water supplying valves and pipes, of the bib or nozzle adapted to rest upon the top of the slab, and having a ring extending from the rear end of such bib, the standpipe passing through the slab and through the ring, and the collar for holding the ring in position, substantially as set forth.”</p> <p>The defendant’s structure is substantially a reproduction of the patent drawings and specifications, except that “nut, 4,” and its functions, specifically referred to as an element in the combination of claim 1, are not included. Infringement of claim 1 is not charged, but the fact of conflict with each of the remaining five claims as set forth is undisputed, and the issue rests upon their validity. The prior art is shown in the following letters patent: Carr’s, No. 170,-709; Clifford’s, No. 238,855; Demarest’s, No. 330,386; Demarest’s, No. 358,147; Moore’s, No. 418,375; Newell’s, No. 399,691; Putnam’s, No. 344,498; Reid’s, No. 391,647.</p>

<p>In Admiralty. Suit for demurrage under charter.</p>

<p>In Admiralty. Suit to recover for loss of tow.</p>

<p>Circuit Court of Appeals — Jurisdiction—Constitutional Questions.</p> <p>Where the sole question arising on a writ of error to review a judgment of a circuit court is whether a state statute is in contravention of the constitution of the United States the circuit court of appeals is without jurisdiction.</p>

<p>Removal of Causes — Time for Filing Petition — Connecticut Statutes.</p> <p>Under tbe decisions of the supreme court that the time for filing a petition for removal is limited by the time for filing dilatory pleas to the jurisdiction of the court or in suspension or abatement of the particular suit, and the rule of the Connecticut state courts that all pleas in abatement must be filed on or before the opening of the court on the day following the return day of the writ, it is the settled rule in that district that a petition for removal must ordinarily be filed by that day. But Gen. St. § 1251, provides that in cases of foreign attachment, where the defendant is a nonresident of the state and does not appear, the cause shall be continued for three months from the return day, unless the court shall find that defendant or his agent or attorney had actual knowledge of the suit 12 days before the return day, subject, however, to the ■further limitation that the continuance shall terminate 12 days after such actual notice is received, as found by the court. &el&, that in such case, conceding that a defendant would have the right to file a plea in abatement or a petition for removal after the return day, such right terminates 12 days after he has actual notice of the suit, and that, where the record shows such notice or knowledge more than 12 days before the filing of his petition, the cause cannot be removed.</p>

<p>1. JURISDICTION OF FEDERAL COURTS — FEDERAL QUESTION.</p> <p>A suit by private parties to enjoin the maintenance of a bridge across a navigable river, which is wholly within a state, from which complainants allege they suffer special injury, on the ground that such bridge has been declared by the secretary of war, acting under the provisions of a federal statute, to constitute an unreasonable obstruction to navigation, and that it is therefore a public nuisance, is one arising under the laws of the United States, of which a federal court has jurisdiction, without regard to the citizenship of the parties.1</p> <p>3. Navigable Waters — Statute for Regulation of Bridges — Constitutionality.</p> <p>Section 18 of the river and harbor act of 1S99 (30 Stat. 1153) authorizes the secretary of war to determine, after notice to the parties, whether any bridge which has been constructed over any of the navigable water ways of the United States is an unreasonable obstruction to the free navigation of such waters, and if he so determines to notify the parties owning or controlling such bridge to so alter the same as to render navigation through or under it reasonably free, easy, and unobstructed, within a reasonable time, which he shall prescribe. It further provides that if, at the end of such time, the alteration has not been made, the parties owning or controlling such bridge, who willfully fail or refuse to remove the same or to comply with the order of the secretary, shall be deemed guilty of a misdemeanor, and shall be prosecuted therefor. Helé, that such provision is not unconstitutional, as delegating legislative ■or judicial power to the secretary of war, but that the power conferred upon him was administrative; a judicial proceeding in the courts beingexpressly provided for to enforce his orders, in which the legality of his action may be reviewed, and any rights of the defendants may be raised and determined.</p> <p>8. Jurisdiction of Federal Courts — Abatement of Nuisance — Obstructions to Navigation.</p> <p>No special statute is required to give a federal court of equity jurisdiction of a suit by private parties, wlio allege special injury, to enjoin the maintenance of a bridge over navigable waters, on the ground that it is maintained in violation of the laws of the United States, and is therefore a public nuisance, but such suit is within the general equity-jurisdiction of the court, where the requisite amount is invólved.</p> <p>4. Public Nuisance — Private Suit for Injunction — Allegation of Special Injury.</p> <p>A bill which alleges that complainant owns and operates a manufacturing plant situated on a navigable river, that it owns and operates vessels for the transportation of its products from its factory by water, and that defendants maintain a bridge across such river in violation of the laws of the United States, which constitutes a public nuisance, and which prevents the passage of complainant’s vessels to and from its works, and makes it necessary to transship its products, shows special injury which will sustain a suit to abate the nuisance.</p>

<p>Removal of Causes — Separable Controversy — Joint Actton for Tort.</p> <p>An action against a number of defendants to recover damages for assault and false imprisonment, charged in the complaint to have been committed by certain of the defendants at the instigation of another defendant, through her agent, is one to enforce a joint liability for the tort, and is not removable by the last-named defendant, on the ground that as to her it involves a separable controversy.1</p>

<p>Í. Bankruptcy — Assets—Rentad of Exempt Property.</p> <p>Notes taken by a bankrupt after adjudication, for the future rental of land which is exempt, do not constitute assets of his estate in bankruptcy.</p> <p>2. Same — Revocation of Discharge — Rf.qutsites of Application.</p> <p>Where a mortgage given by the bankrupt, covering substantially all his personal property, was shown by his schedules, but its validity was not questioned by any creditor during the pending of the case, and until nearly a year after the bankrupt’s discharge, the court is not justified in then entertaining a petition for the revocation of the discharge, on the ground that such mortgage was fraudulent, unless it is made clear that the creditor filing it has not been guilty of laches; and that cannot be done by general averments of conclusions, to the effect that he has not been guilty of negligence, or has acted with due diligence.</p>

<p>In Equity. Suit to enjoin enforcement of a statute of Nebraska relating to stock yards.</p>

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

<p>1. Appearance — Effect of Withdrawal by Leave of Court.</p> <p>While the withdrawal by a defendant of an appearance entered through a misapprehension, by permission of the Court, relieves him from an unintended, waiver of fundamental questions as to the jurisdiction, it does not authorize him to attack the service made upon him on a mere matter of form.</p> <p>2. Samis — When Special — Plea to Jurisdiction.</p> <p>The federal courts do not apply the strict rules of the common law to substantial issues relating to jurisdiction, but, especially when the question arises on the face of the bill, such issues may 'be raised by the parties or by counsel, by plea, motion, or suggestion; and where a plea raising such an issue is signed by counsel his appearance will be considered as limited, and for that purpose alone.</p> <p>3. Jurisdiction of Federal Courts — Diversity of Citizenship.</p> <p>In a bill in equity, brought in the United States circuit court, by one complainant against several defendants, in which the only basis of jurisdiction was diversity of citizenship, the complainant was a citizen and resident of a state other than that of the district in which the suit was brought, some of the defendants were citizens and residents o£ the state constituting the district in which the suit was brought, and one of the defendants was a citizen and resident of a state other than that of such district, and other than that of which the complainant was a citizen and resident. Service was secured on all the defendants within the district where the suit was brought. Veld, that the court had no jurisdiction over the last-named defendant.1</p>

<p>Demurrer to Plea to the Jurisdiction.</p>

<p>1. Jurisdiction op Federal Courts — Amount in Controversy — Suit to Enjoin Collection op Tax.</p> <p>A suit to enjoin the enforcement of a tax levied on lands under authority of a state by the sale of timber from such lands, where it is not alleged that the tax is illegal, but merely that it was erroneously levied, is not a suit to remove a cloud on title, and the amount involved for the purpose of determining the jurisdiction of a federal court is the amount of the tax, and not the value of the land.1</p> <p>3. Equity — Federal Jurisdiction — Adequate Remedy at Law.</p> <p>Code Va. 1887, §§ 567-570, provide an adequate remedy at law for the correction of an erroneous assessment of taxes, and a federal court of equity is without jurisdiction of a suit to enjoin the collection of such taxes, levied by authority of the state, on the ground of erroneous assessment.</p> <p><5. Federal Courts — Following State Decision — Validity op Taxes.</p> <p>Where the highest court of a state, in an appropriate action, has de-' cided that taxes were properly assessed, and are legal and valid under the constitution and laws of the state, a federal court will not entertain a suit to enjoin their collection.2</p>

<p>1 Foreign- Corporations — State Regulation — Standing to Contest — Validity of Statute.</p> <p>While foreign insurance companies can enter a state to do business only by permission of the state, and subject to such regulations and conditions as it may see fit to impose, yet, where they have complied with all such conditions, and under license from the state have, expended money in establishing agencies and in advertising and building up a business, they have the right to challenge the validity of statutes subsequently enacted which affect their business and interests equally with, those of domestic companies.</p> <p>2. Injunction — rSuiT. to Restrain Enforcement of Statute.</p> <p>In a suit against officers of a state to enjoin them from enforcing legislative acts as required by their provisions on the ground of their invalidity, a denial by tlie defendants of an intention to enforce such acts, coupled with a denial of their invalidity, constitutes no defense and raises no issue.</p> <p>8. Statutes — Constitutionality—Vesting Judicial Powers in Executive Offices.</p> <p>A statute is not invalid, as in violation„of a constitutional provision vesting all the judicial powers of the state in the courts, because it provides that charges of violation of its provisions shall be heard and determined in the first instance by an executive officer, where it gives a right of appeal to tlie courts.</p> <p>4. Equity Jurisdiction — Adequate Remedy at Law — Federal Courts.</p> <p>The fact that a complainant has a plain, speedy, and adequate remedy at law In the state courts does not exclude Hie jurisdiction of ,a federal court of equity, where the requisite facts exist to give such court jurisdiction of the parties and the subject-matter, and a proper case for equitable relief is shown.</p> <p>5. Statutes — Determining Constitutionality- — Questions of Doubt.</p> <p>A trial court will not declare a state statute regulating the business of insurance invalid because of a provision subjecting insurance companies to the payment of attorney’s fees for its violation where the company is unsuccessful, but denying them the recovery of fees if successful, as in violation of tlieir constitutional right to tlie equal protection, of the laws, where the question, under the decisions of the appellate federal courts, Is doubtful. ></p> <p>6. Constitutional Law — Equal Protection of Laws — Nebraska Statute Regulating Insurance.</p> <p>Act Neb. 1897 (Laws 1897, c. 81), to prevent combinations between fire insurance companies, which, among other things, declares void ail agreements by or between such companies relating to the amount of commissions to be allowed agents for procuring insurance, or the manner of transacting the business of fire insurance, is void as a regulation not within the police powers of the state, and as in violation of the constitution of the United States, in that it deprives insurance companies of the equal protection of the laws in the right to make and enforce contracts.</p> <p>7. Same — Nebraska Anti-Trust Act.</p> <p>Laws Neb. 1897, c. 79, defining trusts, and declaring them illegal, and all agreements in relation thereto void, and imposing penalties for its violation, makes any combination of capital, skill, or acts, by which persons seek to fix the price of any article, commodity, use, or merchandise, with intent to prevent others in a like business or occupation from conducting the business or occupation, a trust. It declares illegal and void any agreement to fix the price of any article or commodity, or to limit the production of any commodity, or to prevent competition in insurance, or in the making, transportation, or sale, or purchase of any article, and makes all persons entering into such agreements conspirators, and punishable as such. It provides that the charters of domestic corporations shall be forfeited, and foreign corporations excluded from the state, for a violation of its provisions, and makes it the duty of the law officers of the state to institute actions for its violation, In which, if the action is successful, the defendant is taxed with an attorney’s fee, but is not allowed an attorney’s fee if the action is unsuccessful, and the same provision is made in regard to suits by private persons to recover damages for injury to their business, property, or employment by reason of its violation. It expressly excepts from its provisions all assemblies and associations of working men, and provides that “there Is hereby reserved to them all the rights and privileges now accorded them by law.” Held, that such act, in its general scope, exceeds the powers of the state, and is unconstitutional and void, as depriving persons of their liberty in violation of the federal constitution, which includes not merely liberty of the person, but liberty to make and enforce contracts, that being an institutional and fundamental right of the citizen in the United States; that it also, by excepting labor organizations from its provisions, denies the equal protection of the laws to all persons not members of such organizations.</p>

<p>Injunction — Temporary Restraining Order — Grounds for Granting.</p> <p>Under Rev. St. § 718, which authorizes a federal court or judge to grant a temporary restraining order pending the hearing of a motion for injunction, “if there appears to he danger of irreparable injury from delay,” such an order should not ordinarily be granted to prevent defendants from conveying lands described in the bill, the purpose of which is to' vacate alleged fraudulent deeds to such lands, and as to which the filing of the bill operates as a lis pendens.</p>

<p>Records of Federal Courts — Judgment Indices — Right of Inspection.</p> <p>Under Act Aug. 1, 18S8 (25 Stat. 357), which makes judgments and decrees rendered in the circuit and district courts of the United States liens on property the same as like judgments and decrees of the courts of the state in which they are rendered, and requires the clerks of sucli courts to prepare and keep in their offices indices and cross indices of the judgment records, which “indices and records shall at all times be open to the inspection and examination of the public,” a corporation engaged in insuring titles is entitled to inspect the indices so kept in relation to transactions which are at the time depending, under proper regulations and restrictions.</p>

<p>In Equity. Suit to enforce lien on bank stock pledged as collateral security.</p>

In Equity. Suit against an insolvent building and loan association by a borrowing stockholder, and cross bill by receiver for foreclosure of mortgage.

<p>Former Adjudication — Decree op Dismissal.</p> <p>A decree dismissing a bill, entered upon a demurrer to a general replication, upon the mistaken assumption by both court and counsel that the case was governed by a decision of the supreme court, if not a nullity because of the fact that no issue could be raised by such a pleading, was not a decree upon the merits which would bar a second suit.</p>

<p>Constitutional Law — Due Process.</p> <p>Tliere is a violation of Const. TJ.” S. Amend, art 14, prohibiting any state from depriving a person of property without due process of law, where a railroad company has a lawfully acquired possession of terminal facilities under a grant from a city, and is in possession under a claim of right, and the city council passes an ordinance declaring the rights of the company under the grant forfeited, and directs the mayor to take possession of the property, and to use therefor the police force, and this is done.</p>

<p>1. Equity Pleading — Objection to Jurisdiction.</p> <p>An objection to the jurisdiction of the court for any reason not apparent on the face of the bill must be taken by speciaTplea, and cannot be raised by a motion.</p> <p>2. Former Adjudication — Pleading.</p> <p>A motion to dismiss is not a proper mode of raising the defense of former adjudication, but it should be presented eüher by a plea in bar or by evidence under the general issue taken by answer; and where such defense involves disputed questions of fact the court will not undertake to determine it on such a motion.</p>

<p>1. Corporations — Forfeiture of Franchise — Condition Subsequent.</p> <p>The general rule is tliat, when the continued life of a corporation is made hy the charter or governing statute to depend on a' condition subsequent, the nonperformance of such condition is not an ipso facto for feiture, but is a mere ground of forfeiture, of which the state may avail itself or which it may waive, so that, unless the state proceeds, hy quo warranto or otherwise, to oust the corporation of its franchise, its existence cannot he collaterally called in question.</p> <p>2. Public Lands — Railroad Bight of Way — Forfeiture.</p> <p>The proviso in section 4 of Act March 3, 1875 (18 Stat. 482), granting right of way over the public lands to railroad companies, that, “if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road,” is a condition subsequent, anil the failure to complete the road within the time limited does not operate ipso facto as a revocation of the grant, but merely authorizes the government to forfeit it by judicial proceeding or by an act of congress resuming title to the lands.</p> <p>3. SamFj — Conflicting Claims — Priority.</p> <p>As between two rival railroad companies, each claiming a right of way on the same route over public lands under the statute, that one is prior in right which first definitely adopts the line on which its road is to be built by appropriate corporate action, and then files its map of the location so adopted, since that is an essential act to initiate any right to a particular location. Tt is immaterial which first entered on the land to make surveys or to do other work thereon prior to such definite location.</p> <p>4. Same — RrsriT to Preliminary Injunction.</p> <p>A railroad company located its line of road over public lands of the United States, and proceeded, in accordance with the provisions of Act March 3, 1875 (18 Stat. 482), to acquire right of way across such lands. It graded and tunneled a portion of its road through a mountainous country, expending large sums in the work, but subsequently abandoned the line. Some 10 years afterwards a new company, allied to the first, was organized, which located its line over the same route and obtained a conveyance from the old company of its rights therein. It also filed its maps of survey with the land department for the purpose of acquiring the right of way over the public lands, and entered upon the work of completing the road. No action had ever been taken by the government to forfeit the rights of the old company in such right of way. Held, that the new. company had acquired such prima facie rights in tlie work done by its predecessor as warranted a court of equity in granting a preliminary injunction restraining forcible interference with its completion of such work hy a rival company, which also claimed the same right of way, but which did not definitely locate its line thereon until later, pending an adjudication of the rights of the respective parties, hut that the court would not, on such hearing, enter upon the question of the rights of the parties upon the portion of the line on which no work had been done, and as to which a contest was pending in the land department involving the validity of complainant’s survey and maps of definite location.</p>

<p>Ne Exeat — Canadian Debtor — Adequate Remedy in Canadian Courts.</p> <p>In this case the complainant is a resident of New York, and the respondent has a fixed, permanent residence-in Montreal, Canada. The complainant’s claim has been due for 18 months, during which it might have been sued in the courts of the province of Quebec, which were no more remote from the complainant’s domicile than the circuit court for the district of Maine. A writ of ne exeat was asked for against the respondent during a brief pleasure trip in the state of Maine. Service of subpoena in the cause in the circuit court had been made on the respondent within the district of Maine, Held that, independently of the question arising from the fact that the complainant’s claim is based on an open and unliquidated account, a writ of ne exeat is refused by the circuit court, because, for other reasons, if a decree be obtained against the respondent in the circuit court, it would be respected by the courts of the province of Quebec.</p>

<p>1. Accounting.</p> <p>There is no case for an accounting because of defendant’s refusal to carry out an agreement to obtain a loan, where complainant could benefit thereby only to the extent of obtaining a commission, and the question of whether there should be a commission was by the agreement left for future determination of the parties, and it does not appear whether the loan could have been procured but for defendants’ refusal to cooperate.</p> <p>2. Contract — Construction.</p> <p>The agreement between complainant and defendants being to obtain subsidies for and procure the construction of a railroad, to share in the profits from the construction, complainant, though assisting in obtaining subsidies taken in the name of defendants, is not entitled to an interest therein, it not appearing there were any profits in the construction.</p> <p>8. Partnkkkiiip.</p> <p>Where complainant and S. agreed to do a certain thing, they to share in the profits, and S. and defendants then made an agreement to do it, and share in. the profits, complainant and defendants do not become' partners, but any remedy of complainant for profits obtained by S. and defendants is against S.</p>

<p>At Law,. Action to recover rentals for hydrants supplied to defendant city under contract.</p>

<p>1. Trial — DemuRher to Evidence — Waiver.</p> <p>A defendant waives bis demurrer to the plaintiff’s evidence by the subsequent introduction of evidence to the merits on his own behalf.</p> <p>2. Writ of Error — Necessity of Exceptions.</p> <p>Where no objection is made or exception taken to the evidence introduced by the opposite party, and no'ruling thereon is invoked or made, there can be no error for review.</p> <p>8, Same — General Finding — Consideration of Findings of Fact oh Conclusions of Law Drawn from the Evidence.</p> <p>Where a jury is waived, and the case is tried by the court, and no special finding of facts is made, the only questions arising on the evi-fience which can be presented to or considered by this court are the rulings upon the admission or rejection of evidence in the progress of the trial, and, in cases where that question is presented by a proper request at the close of all the evidence, the sufficiency of the evidence to warrant the finding.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>This writ of error questions a judgment for the plaintiff in an action for the possession of certain improvements upon lands in the Indian Territory made and held by the defendants. The plaintiff below, Sarah Carlton Alston, the defendant in error here, alleged in her complaint that she was the owner and entitled to the possession of the Ered Hockett farm, a frame house, stables, and outbuildings situated on lands which were patented to the Cherokee Nation on December 31, 183S; that on August 30, 1897, these improvements were sold to her by the sheriff of Cooweeseoowee district of the Cherokee Nation of the Indian Territory, under an act of the national council of that nation approved September 30, 1S95; that this sheriff delivered to her a certificate of purchase in these words:</p> <p>“Wagoner, I. T., August 30, 1897.</p> <p>“Sold to Sarah Carlton Alston the following described intruder improvements, known as ‘Fred Hockett Farm,’ about three and one-half miles northeast of Wagoner, I. T.: One frame house, 16x32, stables and other outer buildings, about 100 acres in cultivation, — for the sum of eight hundred and. ninety-five ($895.00) dollars. First installment paid, one hundred and forty-nine 20/ioo ($149.20) dollars. Sold under an act of the national council approved September 30th, 1895. J. O. Ward,</p> <p>“Sheriff Cooweeseoowee District, Cherokee Nation,</p> <p>“By J.- W. Leach, Deputy.”</p> <p>—And that the defendants, Fred Hockett, Agnes Hockett, and Will Hockett,. the plaintiffs in error here, had been since August 30, 1897, and still were,, in the unlawful possession of this property. The defendants denied the-plaintiff’s ownership and right to the possession of the improvements, denied that there had ever been any legal sale thereof by the sheriff, and alleged that they had made them, and had been in the possession of them since 1889. At the trial the plaintiff proved by one of the defendants that the latter’s wife had claimed to be a citizen of the Cli&rokee Nation, bnt that her claim liad been disallowed; that he had pnt improvements of the value of about §1,500 upon the property, and had occupied it since September, 1889. The plaintiff then proved that she had purchased the improvements from the sheriff named in her pleading, and had obtained the certificate copied above. Objection was made to her introduction of this certificate on the grounds that there was no proof of the act of the Cherokee Nation under which the sale took place, or of any compliance with that act, but this objection was overruled. There was no other evidence of title to or right of possession of the improvements in the plaintiff, and yet the court instructed the jury, that she was entitled to recover them. This instruction and the overruling’ of the objection to the introduction of the sheriff’s certificate, together with many other rulings of the trial court, are assigned as error. These specifications were considered by the court of appeals of the Indian Territory and overruled, and it is to review the judgment of that court affirming the judgment of the trial court in favor of the plaintiff that this writ of error was sued out.</p>

<p>Action at Law.</p>

<p>Pleading — Judgment on Frivolous Answer.</p> <p>Under the rule of decision in South Carolina that the whole pleading must he clearly frivolous to authorize the court, under the statute, to render judgment thereon on motion, an answer in a federal court, which contains a positive denial under oath of material jurisdictional allegations made in the complaint, cannot he adjudged frivolous.</p>

<p>Equity Jurisdiction— Federal Courts — Creditors’ Suits.</p> <p>Federal courts in equity are precluded by tlio constitution from entertaining jurisdiction over, or giving judgment upon, a common-law demand, and such a court cannot entertain a suit by a creditor, whose claim is evidenced by notes not reduced to judgment for the sequestration of the debtor’s property, the appointment of a receiver, and an injunction against suits elsewhere, notwithstanding such a suit is authorized by the statutes of the state.</p>

<p>1. New Trial — Conflicting Evidence.</p> <p>The federal circuit court has the same power to grant a new trial in a case of conflicting evidence as under other circumstances.</p> <p>2. Direction of Verdict.</p> <p>The federal circuit court has power to direct a verdict for the defendant, though there is evidence for the plaintiff which, but for conflicting proofs offered by defendant, would be sufficient to take the'case to the jury.</p> <p>8. New Trial — Grounds.</p> <p>A laborer in' tbe employ of a chemical company producing sulphuric acid, and working on the top of a fines burner, claimed to have been overcome by smoke and gas escaping- from the lump burners, so that he caught his sleeve in certain moving mechanism, which broke his arm. He testified that he was alone and that he refused to continue his work until the defendant’s foreman promised to inform him when ore was dumped into the lump burners, causing the escape of smoke and gas, but that the foreman subsequently left the locality, and the accident occurred during his absence. One of defendant’s witnesses, who stood unchallenged, testified that he was working with plaintiff, relieving- him, and had left the place of work briefly for water, when the injury occurred. Plaintiff made no attempt to reconcile witness’ presence with the case made by him. Held sufficient to justify setting- aside verdict for plaintiff.</p>

<p>Bankruptcy — Provable Debt — Claim of Wife for Money Lent.</p> <p>The provability of á wife’s claim against the estate of her husband in bankruptcy for money lent him from her separate estate depends upon its enforceability, either, at law or in equity, in the courts of the state. In Massachusetts, where such contracts are held contrary to public policy and not enforceable either in law or equity, such a claim cannot be proved as a debt in bankruptcy.</p>

<p>1. Bankruptcy — Estate—Rents of Mortgaged Property.</p> <p>An agreement by a mortgagor to collect tbe rents' from the mortgaged property, which was in his possession, and to pay the same to the mortgagee on the mortgage debt, does not make him the agent of the mortgagee to collect such rents, nor give the mortgagee title to such as are uncollected or have not been paid over at the time the mortgagor is adjudged a bankrupt.</p> <p>2. Same — Rents Accruing after Adjudication.</p> <p>Rents accruing after adjudication for mortgaged property of the bankrupt which comes into possession of the trustee, and before the mortgagee has taken such action as to entitle him to possession of the property, belong to the estate.</p>

<p>In Bankruptcy. On motion to compel a receiver appointed in proceedings in a state court to turn over property of a bankrupt corporation.</p>

<p>Bankruptcy — Preference—New Credit.</p> <p>An insolvent debtor owed an account for goods, to apply on which he gave a check, which was protested, and not paid. He afterwards ordered more goods, and subsequently made a payment on account. ■Helé, that such payment could not be applied to the check, so as to make the date of the check the date of the preference, and entitle the creditor to set off the new credit in bankruptcy against such preference.</p>

<p>1. Bankruptcy — Acts of Bankruptcy — Admission by Partner.</p> <p>An admission in writing, signed by one of two members of a firm o? Iirivate bankets, and purporting' to lie made on behalf of both, that they are unable'to pay their debts, and are willing to be adjudged bankrupts constitutes an act of bankruptcy, under Bankr. Act 1898, § 3a, cl. 5, an«if its force is not impaired by the statement, as a reason for such inability, that they have been dispossessed of their property by proceedings instituted under the state banking law, sncli admission as an act of bankruptcy having reference to a present inability to pay, and not to the ultimate insufficiency of assets.</p> <p>2. Same — Suffering Preference.</p> <p>Whore the members of an insolvent firm appeared in a suit against them for the appointment of a receiver, and named persons for such receiver, they must be held to have “suffered or permitted” any preference obtained by creditors through such suit.</p> <p>3. Same — Hearing and Petition — Defenses.</p> <p>The fact that the assets of an alleged bankrupt partnership are in the possession of a receiver of a state court cannot be pleaded in defense to a petition in bankruptcy against the partnership, nor considered on the hearing of such petition, since the question which court iias jurisdiction to administer the estate can only arise after an adjudication, has been made and a trustee appointed.</p>

<p>1. Mechanics’ Liens — Priority as between Lienholder and Mortgagee— Kentucky Statute. 1 ■ ' ' 1</p> <p>The mechanic’s lien law of Kentucky, as amended in 1896, provides (Ky. St. [2d Ed.] § 2463) that mechanics and material men shall have a lien upon the land and improvements, which “shall be superior to any mortgage or Incumbrance created subsequent to the beginning of the labor or the furnishing of the materials; and said lien, if' asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials,” provided that such lien shall not take precedence of a mortgage or, other contract lien or a bona fide conveyance “for value without notice,” unless prior to the recording of such mortgage or other lien the me> chan'Ic or material man stall have filed his claim for lien, or a preliminary statement showing that he has performed labor or furnished material, or expects to do so. HeldI, that since the statute does not prescribe what shall constitute notice to affect a mortgagee who takes his mortgage after a mechanic or material man has commenced to perform labor or furnish materials, or whether such notice must be actual, or only constructive, such question must be determined under the general doctrine and rules of equity, and that under such rules the knowledge of an agent who acted for a mortgagee in taking a mortgage that buildings were being erected on the property was notice to the mortgagee of the rights of a material man who was at the time furnishing lumber for such buildings, and the lien of the latter, duly perfected under the statute, was entitled to precedence over the mortgage.</p> <p>8. Same — Knowledge op Improvement as Notice op Lien.</p> <p>Where an agent for a mortgagee in taking a mortgage had knowledge that improvements were being made upon the property, out of which mechanics’ liens might arise, and required the mortgagor to secure releases from the mechanics and material men, he is not justified in accepting a statement of the mortgagor that the releases obtained cover all claims; and the fact of such statement will not relieve the mortgagee from tie- effect of such knowledge of his agent as notice to him of claims which were not in fact released, and the existence of which the agent could have ascertained by reasonable inquiry.</p>

<p>1. Customs Duties — Findings of Board of General Appraisers — Weight on Appeal.</p> <p>A finding of fact made by the board of general appraisers, while not conclusive upon the court on appeal, is entitled to the same weight as the finding of a master in equity, and unless wholly unsupported, or clearly contrary to the weight of evidence, should be sustained.</p> <p>8. Same — Classification—Mica.</p> <p>Mica in small sheets or pieces, which fall off in the process of thumb-trimming, varying in width from one to two inches and in length from two to three and a half inches, is dutiable under paragraph 184 of the tariff ac^ °f 1897 (30 Stat. 160) as “mica unmanufactured,” and not under paragraph 463 as “waste, not specially provided for.”</p>

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

<p>1. Afpeai, — Pbactice.</p> <p>Mere appearance of an attorney and giving notice of an appeal does not constitute an appeal under the Chinese exclusion act of September-13, 1888 (25 Stat. 476) § 13, providing, without pointing out the manner of appeal, that any Chinese person convicted before a commissioner of ■ "a United States court may within 10 days from such conviction appeal to the judge of the district court for the district.</p> <p>2. Habeas Cokpus.</p> <p>If the appeal under Chinese Exclusion Aet'Sept. 13, 1888.. (25 Stat. 476) § 13, is not to the district judge as district judge, but to the district court, as claimed by the petitioner, any irregularities in the proceedings cannot be reviewed by habeas corpus; but the remedy is by appeal to the circuit court of appeals, U. S. v. Gee Lee, 50 Fed. 271, 1 O. C. A. 516, doubted.</p>

<p>Federal Courts — Habeas Corpus — Discretion in Issuance of Writ.</p> <p>A federal court Is vested with a discretion In the issuance of the writ of habeas corpus for the discharge of a person confined under state authority, both before and after trial and judgment in the state court, in cases in which the act of the legislature under which the state court is proceeding is challenged as in conflict with the federal constitution; and under ordinary circumstances, where the petitioner has a clear remedy in the state courts, whose decisions may be reviewed, if necessary, by the supreme court of the United States, he will be remitted to such remedy.1</p>

<p>In Equity. Suit to enjoin infringement of trade-marks and unfair competition.</p>

<p>Rule for a Preliminary Injunction.</p> <p>The affidavits showed that the plaintiff, Catharine A. Williams, was the »wner of a copyrighted directory of the city of Scranton for the year 1900, and that the defendant W. L. Smyihe had compiled, and was about to issue, a directory of the same for the year 1901. The bill charged that the one had in large part been pirated from the other, in violation of the copyright, and prayed that its publication be enjoined.</p>

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

<p>Patents — Invention—Pbocess fob Making Safety Pins.</p> <p>The Ballou patent, No. 380,880, for an improved process of manufacturing safety pins, which in substance consists in the use of a cold-swaging machine to form and temper the pin and catch, is void because what is therein described does not constitute a patentable process, and the description is not such as would enable a person skilled in the art to use the same without extended and original experiment, it appearing-that pins cannot he successfully made by the method described, except from a special alloy, and by using specially constructed dies in the swaging machine, neither of which are mentioned in the patent.</p>

This suit was brought by the appellant, as the assignee of Lester J. Barr, for the alleged infringement by the appellee of letters patent of the United States No. 349,134, issued to Lester J. Barr September 14, 1886, for a “Coal and Ore Oar.” The defendant below pleaded ta) want of novelty; (b) that Barr was not the Inventor; (e) laches.

<p>1. Patents — Validity—Infringement—Sockets for Furniture Casters.</p> <p>The Berkey patent, No. 318,533, for a socket for furniture casters, made' in halves, one-half having an interior spring integral with the socket, and formed by the same operation, which engages with the bulbous head of the caster shank to prevent the same from dropping out unless pressure is applied, is of doubtful validity in view of the prior art, which discloses a socket identical in all respects except that the spring is made from a separate piece of metal, and riveted to the socket. If conceded validity, it is limited to the precise construction shown, and, as so limited, held not infringed.</p> <p>2. Same — Date of Invention — Evidence.</p> <p>An unsupported oral statement, made by a patentee many years after, is too vague and indefinite to carry the date of his invention back to a time prior to an application by another inventor, filed more than three years before his own, and covering substantially the same invention.</p> <p>3. Same — Validity and Invention — Socket for Furniture Casters. _</p> <p>_ The Denton patent, No. 594,037, for a socket or case for furniture casters, is void for anticipation. Also held not infringed, if conceded validity.</p>

<p>1. Patents — Anticipation.</p> <p>The use of the laws of optics for one purpose cannot be regarded as an anticipation of the use of them for another, however similar, in connection with another and distinct subject.</p> <p>2. Same — Construction of Claims.</p> <p>The terms employed in a patent to describe the invention are to be interpreted reasonably, with reference to the art to which it relates, arid what a mechanic skilled in the art would be able co do with it. While the patent is not to be extended beyond its terms by construction, it is not to be made impracticable within them, having regard to the subject with which it deals, by a too literal and precise interpretation.</p> <p>8. Same — Application—Disclaimer.</p> <p>Where a patentee, whose application had been rejected, in renewing the same, 'made certain descriptive declarations with regard to his invention to meet the objections of the examiner, this is not to be taken as a disclaimer, intended to .narrow the claim, but an argument, to show certain things in regard to it.</p> <p>4. Same — Infringement—Prism Glass. .</p> <p>The Cummings patent, No. 593,045, for “daylight prism glass” for lighting dark interiors, consisting of panes or lights, one side of which is made up of a series of parallel triangular projections or prisms, and the other of parallel and uniform convex projections or lenses placed edge to edge, was not anticipated, and is valid; also held infringed.</p>

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

<p>1; Maritime Liens — Repairs and Supplies — Home Ports.</p> <p>A lien does not attack to ,a vessel for repairs and. necessaries furnisked in a port of tke same state as ker home port, wkick can be enforced in a court of admiralty, unless suck lien is given by a state statute, and tke requirements of suck statute liave been complied witk.</p> <p>á. Same — Purchaser of Vessel — Verbal Recognition of Liens.</p> <p>Promises made by tke purchaser of a vessel to pay claims for repairs and supplies furnisked suck vessel before bis purchase, and statements recognizing liens therefor, will not bind either him or the vessel, where they were made upon representations by tke claimants that they had valid liens, and in tke belief that suck representations were true, when in fact no suck liens existed.</p>

<p>1. Admiralty Jurisdiction — Enforcing Remedy Given by State Statute.</p> <p>Although a court of admiralty has jurisdiction of an action to enforce á remedy for a tort, given by a state statute, Where such tort was of a maritime nature, and committed on navigable waters, it can give no relief except in conformity with the statute creating the right, of action.</p> <p>2. Wrongful Death — Action under New Jersey Statute — Limitation.</p> <p>The New Jérsey statute of 1848 (1 Gén. St. p. 1188) gives a right of action for wrongful death, “provided, that every such action shall be commenced within 12 calendar months after the death of such deceased person.” Held, that such proviso was not merely a designation of the ordinary period of limitation for such actions, operating, as a part of the general statute of limitations of the state, on the remedy alone, and hence subject to extension under a provision of such general statute when the defendant was not a resident of the state, and leaving an ao tion to enforce the right given when brought in another jurisdiction, to be governed by the law of the forum as to limitation, but was an express condition of the right of action itself, which must be given effect in every forum wherein an action based upon the statute is instituted.</p> <p>3. Limitation of Actions — Time of Commencement to Run — Action in Foreign Jurisdiction.</p> <p>Even if such proviso be held subject to the provision of the general statute of the state that limitation should not run during the time a defendant was Hot a resident of the state, a plaintiff bringing an admiralty action to enforce the statutory liability in another jurisdiction more than a year after the death sued for cannot invoke such extension, where the action might have been brought in the same court at any time previously, and service on the defendant obtained, and no excuse for the delay is shown.</p> <p>4. Same — Pleading Statute.</p> <p>In an action based on a statute, which makes the time of bringing thh action an express condition of the right given, it is incumbent on the plaintiff to plead a performance of such condition, and the defendant is not required to plead the limitation in the statute to entitle him to insist on the objection that the action was not brought 'within the time limited.</p>

<p>Iii Admiralty.</p>

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

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

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

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

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

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

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

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

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

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

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

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