Volume 111 — Federal Reporter

<p>Courts—Jurisdiction of Suits against United States—Effect of Act Withdrawing Jurisdiction on Pending Suits.</p> <p>Act June 27, 1898 (30 Stat. 495), taking away the jurisdiction conferred upon the circuit and district courts of suits against the United States by Act March 3, 1887 (24 Stat. 505) § 2, so far as relates to suits brought by officers to recover fees or salaries, contains no saving clause, and applies to suits pending at the time of its passage.</p>

The defendant in error. -Robert Rew, brought an action against the independent school district of Sioux City, Iowa, the plaintiff in error, upon 10 school district bonds, of §1,000 each, and tlie coupons thereto attached. The bonds were payable to Ogilvie O. Tredway or order, but tlie coupons were payable to bearer.

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

In Equity. On motion for preliminary injunction. This suit is brought to enjoin defendant from a violation of a decree entered in the state district court of Ormsby county, Nev., in the suit of Dangberg and others against Ross and others. That suit was instituted on June 21, 1871, to determine the rights of the several parties in that action to the waters of dear creek.

In Equity. This is a bill to foreclose two deeds of trust in the nature of mortgages on real estate and some personalty, all lying and situated in this state. The defendants, the mortgagors, deny the validity of the mortgage and indebtedness, setting up the plea of usury.

Appeal and Cross Appeal from the Circuit Court of the United States for the Northern District of Illinois. The United States Life Insurance Company in the City of New York filed its bill in equity against Alice A. Cable, administratrix of the estate of Herman- D. Cable, deceased, for the cancellation upon the ground of fraud of a policy written by the company upon the life of the defendant’s intestate.

<p>Life Insurance—Eights of Creditors—Insolvency of Insured.</p> <p>Tbe fact tbat a married man was insolvent at tbe time be effected insurance on bis life in favor of bis wife and children, in a mutual association wbicb was authorized only to issue certificates in favor of tbe family or heirs of its deceased members, and that be remained insolvent until bis death, where tbe amount paid in premiums was moderate, and there was no actual fraud, does not entitle bis creditors, under tbe principles of the common law, to claim the proceeds of his certificate, or any part thereof, as against the widow and children; and such case also comes within Act Pa. April 15, 1868 (P. L. 103; Purd. Dig. p. 1048), which provides that all policies of life insurance taken out for the benefit of, or bona fide assigned to, the wife or children of the insured, or any dependent relative, shall be vested in such wife or children, or other relative, free and clear from the claims of his creditors.</p>

<p>Injunction—Thmtporarv Restraining Order—Grounds.</p> <p>A temporary restraining order will not be granted to prevent the issuance by defendants of circulars describing a book published by them which is written by the same author and upon the same subject as a book previously published by complainant, where such circulars contain no legally objectionable statements, and no fraudulent conduct on the part of defendants is shown, merely because such circulars may possibly confuse the public and cause some injury to complainant.</p>

In Equity. Intervening petitions by landowners for damages by the construction of the railroad, now in the hands of the receivers.

<p>1. Corporations—Liability of Officers—Effect of State Statutes.</p> <p>State statutes imposing liabilities upon officers and directors of corporations do not exclude their common-law liability for misfeasance and negligence in the performance of their duties as such officers or directors.</p> <p>3. Limitation—Law Governing—Actions against Officers of Corporation</p> <p>An action to charge the defendant, as an officer and director of a corporation, for acts of misfeasance in the management of tlie affairs of the corporation, being for the enforcement of a common-law liability, is governed as to limitation by the law of the forum, and not by that of the domicile of the corporation.</p> <p>3. Corporations—Increase of Stock.</p> <p>The issuance by a corporation of additional stock, within its powers, and its distribution pro rata among its then stockholders, although without receiving payment therefor, is an act which is not in itself injurious to the corporation or its creditors, and of which the latter cannot complain.</p> <p>4. Same—Rights of Creditors—Wrongful Diversion of Assets.</p> <p>A corporation issued 500 shares of additional stock, which it distributed pro rata among its stockholders as a stock dividend. It afterwards desired to sell an issue of bonds, and offered the game at CO per cent, of their par value, but was unable to sell them. 'It received an offer, however, of 85 per cent, for the bonds, provided it would also issue to the purchasers one-half the same’ amount of its capital stock, which would amount to 1,500 shares. It accepted such offer, making an agreement with its stockholders that they should furnish the stock pro rata, and receive 25 cents out of every 85 received for the bonds and stock, and at tlio same time it issued to such stockholders 1,000 shares additional stock, reciting as the consideration thereior the making of permanent betterments on its property from its net profits. This arrangement was not stated to the purchasers, and the indebtedness created by the bonds was as large as the company’s assets, Including the proceeds of the bonds and stock, could pay. iHeld, that the portion of such proceeds received by the stockholders on account of the 500 shares of stock previously issued and owned by them could not be considered as having been paid by tlie corporation, or as depleting its assets, but that the transaction as to the 1,000 shares issued at the time the loan was made was the same in effect as though they had been issued directly io the purchasers, and tlieir proceeds became assets of the corporation, and were wrongfully diverted by their payment to the stockholders a's against the bondholders, who were entitled to recover them back on a deficiency of assets to pay the bonds.</p> <p>5. Same—Joint Liability of Directors—Funds Wrongfully Diveried.</p> <p>Directors of a corporation, while they may be held jointly liable for misfeasance or neglect of duty in permitting the wrongful diversion of funds of Die corporation to themselves and the other stockholders, are not jointly liable for tlie sums so received by each of them separately as stockholders.</p> <p>6. Abatement and Revival—Suit against Director of Corporation.</p> <p>On general principles an action to charge the defendant with liability for misfeasance as a director of a corporation in permitting the wrongful diversion of its funds does not survive, and a suit in equity to enforce such liability, and also to recover from defendant sums so diverted and received by himself, on his death, and in the absence of a state statute permitting it, can only be revived and prosecuted against his executors for the latter purpose, to recover such sums as went to benefit his estate.</p>

<p>1. Equity Pleading—Exceptions to Answer.</p> <p>The only mode of taking advantage of defects in an answer is by written exceptions on the grounds that it contains matter which is either scandalous or impertinent, or of its insufficiency in not answering fully the statements and allegations of the bill.</p> <p>2. Same—Legal Sufficiency of Answer.</p> <p>A demurrer to an answer in equity is unknown, nor can exceptions serve the office of a demurrer by presenting the question of its legal sufficiency, hut, if it is desired to submit a case on the questions of law arising on the answer, the only method is by setting it down for hearing on hill and answer.</p> <p>8. Same—Impertinence.</p> <p>The court will not order matter in an answer alleged to he impertinent to he struck out on exceptions unless the impertinence is fully and clearly made out.</p> <p>4 Same—Office of Exceptions for Insufficiency.</p> <p>Where the matter of the hill is fully answered, the plaintiff cannot except to the answer for insufficiency because of new matter which is irrelevant, and states no sufficient grounds of defense, the principal object of exceptions for insufficiency being to obtain more perfect discovery from defendant under oath. In some jurisdictions such exceptions do not lie where the bill expressly waives answer under oath.</p> <p>5. Same—Liberal Construction of Pleadings.</p> <p>It is not in accordance with the principles of equity to stridly and inflexibly enforce its rules as to pleading, or dispose of a question on purely technical grounds; and a court may look into the substance of exceptions, and determine them on their merits, although they are taken for insufficiency, when they should properly have been for impertinence.</p> <p>6. Same—Answer—Impertinence.</p> <p>Where,a hill alleges that complainant had secured options on property, which he transferred to defendants under a contract for the enforcement of which the hill was filed, an averment in the answer, which admitted the contract, that complainant had expended hut little time or money in procuring such options, is impertinent, the subsequent contract having precluded any inquiry into such question.</p> <p>7. Same.</p> <p>Averments in an answer to a bill filed for the purpose of obtaining a strict and literal enforcement of a contract, including a forfeiture, stating facts tending to show that the contract was a hard one for defendants, and that they had endeavored in good faith to carry it out, and had substantially complied with its terms, - although staling no legal defense, are proper as considerations addressed .to the discretion of the court for the purpose of avoiding a harsh and literal enforcement of the contract, and are not subject to exception for impertinence.</p>

In Equity. Suit to enjoin the continuance by defendant labor union and its members of alleged unlawful acts. On motion for preliminary injunction.

<p>1. Judicial Sales—Right of Redemption—Montana Statute.</p> <p>Code Civ. Proc. Mont. § 702, provides that, where the answer of a defendant admits a part of the claim sued on to be just, the action may be severed on plaintiff’s motion, and judgment rendered on the part so admitted. A plaintiff sued on two distinct causes of action, and procured an attachment on both, which was levied on real estate. The action was subsequently severed under such statute, and judgment rendered on one of the causes of action, under which the attached property was sold to a third person; the action upon the remaining cause having been continued. Held!„ that the attachment as to such part still remained a lien upon the property, subject to the sale made under the judgment, and constituted a “subsequent lien,” which entitled the plaintiff, under the statutes of the state, to redeem from the sale.</p> <p>2. Same—Successive 'Redemptions.</p> <p>Redemption statutes are to be liberally construed, and where a subsequent lienholder, entitled ,to redeem from a sale of real estate under execution, from which previous redemptions have been made or attempted, pays to the sheriff the amount which the original purchaser is entitled .to receive, together with the amount of the claims of the prior redemptioners, the money paid in will be treated in equity as having been paid for the benefit of the original purchaser to the extent of his claim, and a redemption will be effected, even though for any reason the prior redemptions were not effective.</p> <p>8. Same—Payment Necessary to Redeem—Tax-Sale Certificates.</p> <p>Code Civ. Proc. Mont. § 1235, requires one redeeming from a judicial sale to pay to the purchaser the amount of his purchase, with interest, “together with the amount of any assessment or taxes which the purchaser may have paid thereon after purchase,” with interest. Held, that a purchase of the property at a sale for delinquent taxes, and the taking of a certificate of purchase therefor by the purchaser at ihe judicial sale, was not a payment of taxes on the property within the meaning of such provision, and that a redemptioner was not required to pay to the sheriff the amount of such certificate, since such payment, if made, would not operate to redeem from the tax sale and extinguish the lien, which could only be effected in the statutory manner by payment to the county or municipal treasurer.</p> <p>4. Same.</p> <p>A purchaser of real estate at execution sale, who afterwards and while ho holds the certificate buys the same at tax sale, does not thereby become a creditor of the judgment debtor, so as to bring him within the provision of Code Civ. Proc. Mont. § 1235, requiring a redemptioner from the execution sale, “if the purchaser be also a creditor having a prior lien to that of the redemptioner,” to pay the amount of such lien in addition to the amount of the purchase in order to effect a redemption.</p> <p>5. Fixtures—Theater Furnishings and Cíiatiís.</p> <p>A building was erected, arranged, fitted, and at all times used as an opera house l'or public entertainments, being incapable of use for other purposes without considerable alterations. It was fitted with a stage and stage fixtures, and appliances to facilitate the handling of scenery during theatrical performances, and a drop curtain. It also contained a large quantity of theatrical scenery, and was furnished with opera house chairs, such as are usually used in similar buildings, which were fastened to the floor with screws and nails. Such chairs were placed in the building by one who was at the time the owner, and who subsequently freed them from liens. Held, that all of such property, except the scenery, which was in no way attached to the building and was shown to be capable of being used as well in other theaters, constituted fixtures which were essential to the use of the building for the sole purpose to which it was devoted, and which passed to a purchaser of the building at a sale under execution.</p>

<p>in Equity. Suit for injunction.</p>

<p>In Error to and Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>This is a suit to enforce a mechanic’s lien for the balance of the purchase price of an engine. Tlie Jacob Dold Packing Company, the respondent, was a corporation which owned and operated a packing plant in Kansas City, in the state of Missouri. On December 10, 1897, John Featherstone’s Sons, a corporation, contracted to furnish to the Bold Company at Kansas City a refrigerating plant consisting of an engine arid other machinery, for the sum of $18,750. The Ilooven, Owens & Rentscliler Company, another corporation, and the appellant here, agreed with Featherstone’s Sons that it would furnish the engine for $0,001.28. It did so. The engine was incorporated with the plant of the Dold Company, and the appellant was paid $1,499.90, while a balance of $4.501.88 of the purchase price remained unpaid. The Rentscliler Company tiled a claim of a mechanic’s lien for this balance, under the statutes of Missouri, upon certain property of the Dold Company at Kansas City in which the engine had been embodied, and brought this suit to enforce its lien. There was a decree that it was entitled to no relief, and this decree is challenged by the appeal before us. (C. C.) 99 Fed. 180.</p>

<p>1. Monopolies—Combinations in Restraint of Trade—Damage^.</p> <p>Only actual damages, established by the proof of facts írom which they may be rationally inferred with reasonable certainty, are recoverable. Speculative, remote, or contingent damages cannot fomnthe basis of a lawful judgment. \</p> <p>2. Same—Speculative Damages—Evidence—Sufficiency.</p> <p>The estimates, speculations, or conjectures of witnesses unfounded in the knowledge of actual facts from which the amount of the da,mages could have been inferred with reasonable certainty will no more sustain a judgment than the conjectures of a jury. •</p> <p>8. Same—Anticipated Profits—"When Recoverable. t</p> <p>The general rule is that the anticipated profits of a commercial ¡business are too remote, speculative, and dependent upon changing circumstances t<j warrant a judgment for their loss. There is an exception to this rule that the loss of profits from the interruption of ap established business may be recovered where the plaintiff makes it reasonably certain by competent proof v hat the amount of his actual loss was.</p> <p>4. Same—Profits ov Established Business—Evidence—Indispensable to Recovery.</p> <p>Proof of the expenses and of the income of the business for a reasonable time anterior to and during the interruption charged, or of facts of equivalent import, is indispensable to a lawful judgment for damages for the loss of the anticipated profits of an established business.</p> <p>5. Same—Loss on Promts.</p> <p>The plaintiff testified that the acts of the defendants had greatly diminished his business, prevented him from making contracts for future delivery of coal, and diminished his sales from 15 to 20 carloads per month, on which he would have made a profit of from $12 to $20 per car; that he could not tell what the volume of his business was before or after the acts complained of, and that he had no books or papers which would show this fact. He produced no evidence of the expenses or income of his business before or after the acts complained of. Held, that the evidence was insufficient to sustain a verdict for damages for the loss of anticipated profits.</p> <p>(Syllabus by the Court.)</p>

This was an action to recover the contents of certain bonds and coupons purporting- to have been issued by the village of Marice City, the defendant in error. The petition alleged the due execution and delivery of seven bonds, in the sum of $500 each, with coupons for interest, by the defendant, the purchase thereof before maturity by the plaintiff for value, and his present holding and ownership of the same.

At Law. Action on bonds and coupons issued by the independent school district of Riverside. Trial to the court.

<p>1. Insurance—Estoppel prom Forfeiting for Default in Prompt Payment.</p> <p>The habitual acceptance of premiums by an insurance company after they are due estops it from enforcing a forfeiture for default in prompt payment.1</p> <p>2. Beneficiary Association—Estoppel by Like Course of Action.</p> <p>A fraternal beneficiary association, which, by its uniform course of collection, leads its members to believe that the strict terms of their certificates and of its by-laws relative to the prompt payment of assessments and the avoidance of- the certificates therefor are not and will not be enforced, is estopped from defeating the claim of beneficiaries upon the certificate of a deceased member for default in prompt payment where he had paid his assessments in due time according to the customary course of collection, hut had, without notice of any change in this course, failed to pay some of them according to the strict terms of the by-laws and the certificate.</p> <p>3. Principal and Agent — Legal Relation Prevails Over Abandoned Stipulations.</p> <p>Tlie actual legal relation of parties to each other, their acts and transactions, prevail over previous written stipulations, which were subsequently disregarded, and condition their rights.</p> <p>i. Same—Beneficiary Association—Clerk of Local Camp.</p> <p>Where a beneficiary association empowers the clerk of a local camp to collect, receipt for, remit, and report upon its benefit assessments, and the clerk acts under this authority with the knowledge and consent of all ■ parties, the relation of principal and agent for this purpose exists, and conditions the rights of the parties, notwithstanding the fact that the by-laws and certificates of membership contain a uniformly disregarded stipulation that.the clerk of the local camp shall not be the agent of the association, but shall be the agent of the local camp, which has no interest in the benefit assessments, and that the acts or omissions of the clerk shall not affect the liability or waive any of the rights of the association.</p> <p>5. Same—Custom of Clerk.</p> <p>The habitual collection by the clerk of the local camp of a fraternal beneficiary association of its benefit .assessments within 1 month and 20 days after the time when, by the by-laws of the association and the terms of the certificates, the assessments become due, the members become suspended, and their certificates avoided, waives prompt payment thereof, and estops the society from maintaining that the members were suspended, and that their certificates were avoided, within this customary period of extension of the time of payment.</p> <p>(Syllabus by the Court.)</p>

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

At Law. Action by plaintiff, a citizen of Ohio, against defendant, "a citizen of Pennsylvania. Rule on plaintiff, as a nonresident of the district, to give security for costs.

On motion to strike out bill of exceptions. The trial of this cause was had before the district judge of the United States for the Eastern district of Wisconsin, presiding by assignment in the court below.

<p>1. Contracts—Construction—Extrinsic Evidence.</p> <p>Where contracts require one o£ the parties to pay money to a person designated as “trustee,” but without stating for whom or for what purpose lie is trustee, the circumstances and negotiations leading up to and surrounding the transaction constitute its res gestse, and may be given in evidence in an action to determino which party is responsible for a defalcation of the trustee, not for the purpose of altering the writings of the parties, but to enable the court to correctly construe their agreement.</p> <p>2. Same—Creation op Trust—Responsibility por Acts op Agent as Trustee.</p> <p>Plaintiff applied to the general agent, who was also local manager and secretary, of defendant, to furnish a bond to a railway company, to whom plaintiffs had contracted to supply laborers to be paid by them, the company requiring such bond to protect it from claims which the laborers might make'against it for wages. The agent, as a condition to the furnishing of the bond, and for the protection of defendant, required the money to become due from the railroad company under the contract to be paid to him as trustee, to be disbursed by bim to tlie laborers, and the contract and bond accordingly provided that such money should be paid to the agent, designating him merely as trustee, and that he should pay the laborers therefrom, and pay over the remainder to plaintiffs. They also reserved the right to defendant to designate a new trustee at any time on notice to the other parties. Thqse requirements were within the general authority of the agent, and were also expressly approved by defendant, which subsequently ' expreised the power given it to change the trustee. Held, that the agent, in his capacity as trustee, represented defendant, which was responsible for the faithful execution of his trust, and liable to plaintiffs for the sum due them from the trustee on an accounting.</p>

<p>Actions against Married Women—Complaint.</p> <p>Complaint in an action against husband and wife for value of books sold the wife on orders of purchase signed by her is insufficient, it not appearing otherwise than inferential!}' whether it is sought to charge her separate estate or their community estate, there being a possibility of the debt being collectible against either estate under Civ. Code Cal. §§ 167. 171, though the wife should not be joined with the husband as defendant unless it is intended to hold the community property liable.</p>

<p>At Raw. On motion and demurrer to complaint.</p>

This is an appeal from a decree adjudging the appellant a bankrupt upon the petition of the appellee, which claims to he a creditor.

<p>In Bankruptcy. On review of decision of referee dismissing the petition of a creditor to vacate the adjudication.</p>

In Bankruptcy. On petition to review decision of referee. The following is the opinion of Bagby, referee: On the 13th day of September, 1900, said John W. Moore was by the grand jury of the circuit court of McCracken county, Kentucky, indicted for keeping and maintaining a nuisance in the nature of a disorderly house; and on the 6th day of April, 1901, he was by the verdict of a petit jury in the circuit court of said county found guilty of the charge in the indictment, and…

<p>In Bankruptcy. On objections to report oí referee on application for discharge.</p>

<p>1. Bankruptcy—Corporations—Mercantile Agency.</p> <p>A corporation organized to “establish, maintain and conduct a gen* eral mercantile agency,” and whose business was gathering information and printing and publishing a book of ratings with respect to the standing of merchants, which it loaned to its subscribers, comes within the provisions of Bankr. Act 1898, § 4b, and may be adjudged an involuntary bankrupt.1</p> <p>2. Same—Acts op Bankruptcy—Written Admission by Corporation.</p> <p>A written admission, signed by the president of a corporation by order of its board of directors, that the corporation is unable to pay its debts, and is willing to be adjudged a bankrupt on that ground, is sufficient to constitute an act of bankruptcy, under Bankr. Act 1898, § 3a, cl. 5, which will authorize its adjudication as an involuntary bankrupt.</p> <p>8. Same—Involuntary Petition—Time por Appearance by Opposing Creditors.</p> <p>Bankr. Act 1898, § 59f, which provides that creditors other'than the original petitioners may at any time enter their appearance and join in the petition, or file an answer and be heard in opposition, does not authorize a creditor to appear and file an answer to an involuntary petition raising new issues after the time fixed for pleading to the petition by section 18b has expired, where such time has not been extended, and the petition has been heard on the issues as then made up.</p>

<p>In Bankruptcy.</p>

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

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

In Bankruptcy. On certificate of referee presenting question of right of trustee to redeem certain realty from foreclosure sale.

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

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

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

<p>Patents—Infringement—Lightning Arrester.</p> <p>The White patent, No. 438,788, for a potential discharging protector or lightning arrester for making an earth connection with an electric circuit, construed, and held infringed as to claim 1, and not infringed as to claim 4.</p>

<p>At Law. Oil demurrer to amended complaint.</p>

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

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

<p>In Admiralty. On motion for leave to amend answer.</p>

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

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

In Admiralty. Libel in personam by a seaman against the master of the steamer Burnham to recover damages for an alleged assault by the master on board the steamer while on her voyage upon Lake Michigan.

<p>1. Towage—Construction of Contract—Damages for Breach.</p> <p>Libelant agreed to perform towing services in connection with dredging operations at a stipulated price per day. There was no agreement that the tug should work for any particular length of time or while any particular amount of dredging -was being done. Held, that there was no implied agreement that the tug should be always in readiness, or always able to work, which would render her liable for damages resulting to respondent because of her failure to be in attendance at all times.</p> <p>2. Damages—Breach of Towage Contract—Evidence.</p> <p>A claim for damages against a tug, under contract to perform towing services for a dredging fleet, because of her occasional absence or unreadiness, can only be sustained by proof of actual damage resulting. In the absence of such proof, evidence of the earning capacity of the dredging plant per day, when fully employed, affords no basis for charging the tug with damages computed at the same rate for time lost by her.</p>

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

<p>L Salvage—Cake of Property by Salvors.</p> <p>Salvors are responsible for the reasonable care of the property which they have in charge, both as respects damage to the property itself and the infliction of damage on other property.</p> <p>2. Same—Salvors’ Negligence—Forfeiture of Right^to Compensation.</p> <p>Where tugs, having taken a burning ship from her dock, which was on fire, with plenty of room, and, without excuse, beached her in such close proximity to another which has been previously beached that the fire on the latter was renewed, after having been practically extinguished, and so as to impede the work around both ships, and delay the final extinguishment of the fire, causing increased damage to the owners to an amount exceeding any reasonable salvage award for their services, they forfeited by their negligence their right to any award.</p> <p>8. Same—Compensation—Character of Services.</p> <p>Where tugs made no effort to take a burning ship from her slip when the dock was on fire, but passed her by and went to the aid of another vessel, which at that time did not need their services, and gave her assistance only after she had been brought out by others, while entitled to compensation, their services were not of a high order of merit.</p> <p>4 Same—Awards for Services Rendered to Burning Ships.</p> <p>The salvage services rendered by various tugs to the burning steamships Bremen and Main, which took fire from the burning of their dock at Hoboken, in rescuing seamen, towing the ships to where they could be beached, and in putting out the fire, considered, and awards made therefor.</p> <p>6. Same—False Claims—Forfeiture of Award.</p> <p>Where an officer of a vessel makes false claims as to the extent of salvage services rendered, and supports the same by his testimony, he will be excluded from any share in the award made for such services.</p>

<p>Removal op Causes—Separable Controversy—Suit by Stockholders.</p> <p>A suit by stockholders of a corporation against such corporation and a second corporation, which, the hill alleges, has, through an unlawful combination, obtained a controlling interest in the first, and by virtue of such control has managed its business to the detriment of its stockholders, and for its own benefit, and where an injunction is prayed restraining the payment of dividends by the second corporation until an accounting has been made, is one in which the complainants in effect represent their corporation, and which involves a separable controversy as to the second corporation that entitles it to remove the cause where ,the other facts requisite to give a right of removal exist; and officers of the two corporations made defendants with a prayer for an accounting from all the defendants are merely formal parties, whose joinder does not defeat such right of removal, where no facts are alleged which entitle the complainants to relief against them as individuals.1</p>

<p>1. Jurisdiction of Federal Courts—Federal Question—Action Involving Rights of Tribal Indians.</p> <p>The foundation of an action for false imprisonment is tbe fact that , such imprisonment was brought about by the issuance and enforcement of void or irregular process; and where the plaintiff is a tribal Indian, and the wrong complained of is his arrest and imprisonment under process issued by a state court, for the violation of a state law to which it is alleged he was not subject, the issue whether such process was void or not, depends primarily upon questions arising under the laws and treaties of the United States, and a federal court has jurisdiction of the action.1</p> <p>2. Indians — Authority of United States over Tribal Indians — Reservations.</p> <p>The Indians of the Sac and Fox tribe residing in Tama county, Iowa, on lands purchased by them with the consent of the state, and held in trust for their benefit, are tribal Indians, and their lands constitute a reservation under the control of the United States in all matters pertaining to the domestic relations of such Indians. Such'right of control in the general government arises from its relation to all the tribal Indians, as such, and is not dependent upon the title to the land upon which they reside.</p> <p>8. Same—Sao and Fox Tribe in Iowa—State Jurisdiction over.</p> <p>A court of the state of Iowa has no jurisdiction to appoint a guardian for the persons of minors of the Sac and Fox tribe of- Indians who reside on the reservation of the tribe in Tama county; and an order making such an appointment, and directing the guardian to place and keep his wards in the industrial school established by the United States, thus removing them from the reservation and from the immediate control of their parents and relations, was void, and conferred no authority upon the guardian over such minors.</p> <p>4. Same—Criminal Statutes of State.</p> <p>The state of Iowa, by Act February 14, 1896 (Acts 26th Gen. Assem. p. 114) c. 110, § 1, tendered to the United States “exclusive jurisdiction of the Sac and Fox Indians residing in Iowa and retaining the tribal relation * * * and of all lands now or hereafter owned by or held in trust for them as a tribe,” and further provided that “as soon as the United States shall accept and assume such jurisdiction all such jurisdiction on the part of the state of Iowa shall cease.” By section 3 certain reservations were made,.—among others, that nothing in the act should prevent the courts of the state from exercising jurisdiction of crimes against the laws of the state committed on such lands either by said Indians or others, or of such crimes committed by said Indians in any part of the state. The cession was accepted by act of congress, tHeld, that such reservation did not subject such Indians to the criminal laws of the state, except for offenses committed against white persons, or reserve to the state any jurisdiction or control over the domestic affairs or relations of the Indians,- which would practically nullify the purpose of the act as declared in its first section, and which jurisdiction the state in fact never possessed.</p> <p>5. Same-Illegal Prosecution—Liability fob False Imprisonment.</p> <p>Plaintiff, a member of the Sac and Fox tribe of Indians, residing on their reservation in Iowa, assisted an Indian woman who was also a member of the tribe in removing her minor children from the reservation to prevent tlieir being compelled forcibly and against her wishes tc remain in attendance at the Indian school, which was some distance from the reservation. Defendant, who was the agent for the tribe, and who had also been appointed by a district court of Iowa guardian of such minors, caused plaintiff to he arrested; and he was held to the grand jury, indicted, and imprisoned pending his trial in the state court ' for violation of Code Iowa, § 4761, which makes it an offense to take, decoy, or entice away any child under the age of 15 years, with intent to detain or conceal such child from its parent, guardian, or other person having lawful charge thereof, iHeld, that such provisions had no application to the acts of plaintiff, all parties to the transaction being tribal Indians, and the defendant having no lawful authority over the minors by virtue of his void appointment as guardian; that the state court was without jurisdiction to try or punish plaintiff under such statute for the acts committed by him, and the action of defendant, therefore, constituted a false imprisonment, for which he was liable in damages.</p> <p>6. False Imprisonment—Inadequacy of Damages Awarded—Hew Trial.</p> <p>Plaintiff', a tribal Indian, was confined in jail some nine days while awaiting trial in the state court, in which he was acquitted by direction of the court. There was no actual malice on the part of defendant, who caused the false imprisonment, and no ground for the recovery of anything beyond compensatory damages. Held, that a verdict awarding $10 damages, while smaller than should have been rendered, would not be set aside, in view of the improbability that a verdict would be secured on a second trial for an amount sufficiently greater to compensate plaintiff for the additional expense.</p>

<p>1. Criminal Law—Former Jeopardy-Discharge of Jury.</p> <p>A prisoner once tried for felony before a jury regularly impaneled, which failed to agree, and was discharged by the court without tlu prisoner’s consent, and without any actual, imperious necessity, cannot under the fifth constitutional amendment, be retried for the same offense</p> <p>2. Same—Waiver.</p> <p>A prisoner on trial for a felony cannot waive any constitutional rights.</p> <p>3. Same—Silence of Prisoner.</p> <p>The fact that a prisoner made no objection to the discharge of the jury, but remained silent, is not a consent to such discharge.</p> <p>4 Same—Statute of West Virginia.</p> <p>Code W. Va. c. 159, § 7, which provides that “in any criminal case the court may discharge the jury when it appears that they cannot agree in their verdict,” as construed by the courts of Virginia, from which it was substantially adopted, does not authorize the discharge of a jury and the holding of the prisoner for another trial unless the record shows that such discharge was with the prisoner’s consent or from imperious necessity. Any other construction would render it invalid.</p> <p>5. Jurisdiction of Federal Courts—Habeas Corpus—Discharge of State Prisoner.</p> <p>A circuit court of the United States has jurisdiction to discharge on habeas corpus a prisoner held for trial on indictment in a state court, where lie is restrained of his liberty in violation of the constitution of the United States. 1</p>

<p>Removal of Causes—Separable Controversy—Necessary Parties.</p> <p>To a suit for the specific performance of a contract, which requires the transfer of stock in a corporation on its books to make the relief prayed for effective, the corporation is a necessary party, and its presence as a defendant, where it is a citizen of the same state as complainant, will prevent the removal of the cause by the principal defendant.1</p>

<p>1. Injunction—Labor Strikes—Unlawful Conspiracy.</p> <p>It is tbe undoubted right of workmen to quit work, either severally or in a body, so long as the act does not come within the rule against conspiracies to injure the property of another, and they may also, subject to such rule, use peaceable means in persuading others to join them in carrying out a strike. But such rights must be exercised in such manner as not to otherwise interfere with the right of the employer to conduct his business in a lawful manner, or with the equal right of every other man to work or not to work for such employer, as he may think best. They have no lawful right to impose the course of conduct or rules adopted for themselves upon any other man against his wisher, and, where they attempt to do so through concerted acts of violence and intimidation, they are guilty of an unlawful conspiracy, and it is the duty of a court of equity to enjoin such acts when they inflict irreparable injury upon the employer or other workmen.</p> <p>8. Same—Acts of Violence and Intimidation.</p> <p>. Where a labor organization whose members are engaged in a strike undertakes to prevent the employer from carrying on its business by preventing other men from remaining in, or entering, its service, by systematically maintaining pickets around and about the entrances to its premises, virtually placing them in a state of siege, and it is shown that strikers and others incited by them have committed assaults upon workmen employed therein, and have employed threats and intimidation against such workmen to such an extent that the latter do not dare to leave the works through fear of bodily injury, and their employer is compelled to provide board and lodging for them within the premises, and other workmen are from the same reason prevented from entering its employment, to its irreparable injury, such state of facts clearly justifies the conclusion that the defendant organization • and its members have not confined themselves to lawful methods of persuasion and argument, and that they are engaged in a conspiracy to stop the business of the employer by intimidation and violence, which entitles the employer to protection by injunction against the continuance of such unlawful acts.</p> <p>& Same—Equity Jurisdiction.</p> <p>The fact that acts committed by defendants constitute criminal offenses under a statute does not deprive a court of equity of jurisdiction to enjoin such acts, where their continuance will result in irreparable injury to property rights.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>On November 8, 1898, Mary J. Gilbert, the appellee, commenced an action at law in the circuit court for the Eastern district of Arkansas to recover from the Travelers’ Protective Association, the appellant, the sum of $5,000, alleged to be due her as beneficiary in a membership certificate issued by the association to her husband in his lifetime. The summons was duly served by delivering a true copy thereof to one Bass, stated in the return of the marshal to be the secretary of the local subordinate lodge of tlie defendant association located in the city of Little Rock, the chief officer thereof being, as stated, absent, and his whereabouts unknown to the plaintiff or the marshal. At the return term the defendant failed to appear or plead to the-action, and judgment was, on December 27, 1898, rendered in favor of the plaintiff for $5,075 and costs of suit. At the next succeeding term of the court a motion was made by the defendant association to vacate the judgment on the ground that it had been obtained without proper service, and because procured by fraud. This motion was heard and denied by the court, and a writ of error prosecuted to this court by defendant. At the hearing in this court it was contended, among other things, that the service was defective, and that the complaint failed to state a cause of action. In an opinion handed down April 2, 1900, both these propositions were adjudged against the defendant, and the judgment of the circuit court was affirmed. See Association v. Gilbert, 41 C. C. A. 180, 101 Fed. 46. The present suit is a hill in equity, instituted by the appellant against the appellee to vacate the judgment so rendered on Decemher 27, 1S98, on the alleged ground that the secretary of the subordinate lodge (upon whom due service was made in the action at law as determined on the writ of error, supra) failed through want of appreciation of the fact of such service to apprise the defendant "thereof, and that thereby it was deprived of an opportunity to defend the suit, or to present to the consideration of the court the true facts with regard to the claim sued on; and on the further ground, as alleged, that the plaintiff fraudulently misstated and suppressed the real facts of the case in her complaint in the action at law", in this: that, notwithstanding she was well aware of the fact that her husband’s death was occasioned by a narcotic poison taken by him with suicidal intent, such as would, under tlie terms of tliecertificate of membership, have avoided tlie certificate, and precluded recovery by her in a suit thereon, she stated in her complaint that the death of her husband was occasioned by his accidentally taking an overdose of chloral hydrate with no intent to end his Jife thereby. It is further alleged that the plaintiff in the action at law failed to attach to her complaint or file therewith the certificate of membership sued on, or a copy thereof, and that this omission on her part was for the purpose of withholding from the attention of the court the conditions and limitations of the certificate of membership, which, if brought to the attention of the court, would have shown that she could not recover thereon. It is further alleged in the supplemental bill that it necessarily resulted from the fact that the certificate of membership was not attached to or filed with the original complaint in the action at law that the same was not brought to the attention of this court on tlie writ of error, because the defendant was compelled, by reason of the fact that it was not informed of the institution of the suit at law until it was too late to .file a bill of exceptions, and thus make the certificate of membership a part of the record, to rely solely for the reversal upon the record of the case, proper. A demurrer to the hill, supplemental bill, and amended bill, setting forth the foregoing facts and others, which, if necessary, will he referred to in the opinion, was filed by defendant, and. sustained by the court. Thereupon the bill was dismissed. To review tlie action of tbe trial court in *so dismissing tbe bill, tbe-appellant prosecuted its appeal to tliis court.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>The Nellie lode mining claim, situated in the state of Colorado, is owned by the complainants, Ernest Thallmann and Hamilton F. Kean. It extends in a westerly direction from its eastern boundary up the side of a precipitous mountain, which has in some places a slope of 35°, for a distance of 1,308 feet, and its width is 300 feet. It was patented on July 18, 1890, and in the summer of 1898 the complainants were taking ore from it, and had driven some of their tunnels across its north line into adjoining territory that was a x>art of the unappropriated public domain. Their workings were many feet below the surface of the land, and they had never taken possession of this land above these underground workings. On June 28, 1898, the defendant, T. E. Thomas, peaceably entered upon and located the Thomas lode mining claim upon land adjoining the Nellie claim upon the north. The patent to the claim of the complainants describes its north side line ns extending from its northwest corner, which is corner No. 1 of the description, N., 76° and 5' E:, 1,368 feet, to corner No. 2, and it describes its south side line, which is parallel to the north line, as extending from corner No. 3 “S., 76° and 5 minutes W., 1,308 feet, to corner No. 4.” The complainants alleged that there was a mistake in the description of these courses; that they should have read, respectively, N., 77° and 54’ E., and S., 77° and 54' W.; and they prayed for a correction of the mistake, and for an injunction against the defendant from obtaining a patent to the land which would fall within the corrected description. The northeast corner of the description in the patent is indisputably located -where it was placed at the time of the original survey, while the monuments which mark the westerly corners are gone, and their original locations are in dispute. The result is that the effect of correcting- the description in the patent in the manner sought by the complainants would be to swing the west end of the Nellie claim in a northeasterly direction 43 feet, and to embrace within it a triangular tract of land north of the tract described in the patent 43 feet in width at its westerly end, diminishing to a point at its easterly end. A portion of this triangle which is within the Thomas claim is the land here in controversy. It comprises only'about half an acre, but within this half acre it is claimed that the apex of a valuable lode of mineral crops out, and this is the real cause of the contest. The defendant denies that there was any mistake in the patent of the Nellie claim, and the circuit court rendered a decree in his favor. 102 Fed. 935.</p>

On April 23, 1898, the complainants (the appellees here) exhibited their bill in the United States circuit court for the district of Colorado to compel the defendants (the appellants here) to reconvey to them certain land, water rights, and rights of way for a ditch and reservoirs pursuant to the terms of a contract of purchase thereof which had been made on January 27, 1893.

On Motion to Vacate Judgment. The grounds upon which the motion was based appear from the following affidavits, upon the filing of which the court entered an order to show cause: “County of New York—ss.: Herbert O. Smyth, being duly sworn, deposes and says: That be is one of tbe attorneys for tbe defendants in the above-entitled action, and bas full knowledge of the same.

<p>On Demurrer to the Showing in Response to a Motion for a Writ of Possession.</p>

<p>Appeal and Error—Review—Instructions.</p> <p>Where the charge given by the court covers the entire case, and properly submits it to the jury, it is not reversible error to refuse further instructions requested.</p>

<p>Railroads—Accident at Crossing—Failure to Look.</p> <p>A person who in broad daylight, without looking, and without any valid excuse for not looking, walked upon a railroad crossing with which he was familiar, and was killed by a passing train, when, if he had looked, he could have seen the train for several hundred feet before he. reached the crossing, was guilty of contributory negligence which precludes a recovery for his death.</p>

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This suit was instituted by Mary A. Hopkins, the defendant in error, against the Moon-Anchor Consolidated Gold Mines, Limited, plaintiff in error, to recover damages under the statute of Colorado for the death of her son Phineas Hopkins, alleged to have been caused by the wrongful act of the defendant. It is charged that in March, 1S99, the defendant, a mining corporation, was engaged in excavating a pumping station or chamber at the sixth level of its mine, in ground liable to cave in unless supported by proper timbers; that deceased was working for defendant in the capacity of a trammer (that is, operating a car for the purpose of carrying away the loose rock and debris that, might result from the excavating-' processes, along the drift to the elevated shaft of the mine); that while so engaged he was struck by loose and falling- rock from overhead and instantly killed. The sxjeciiic negligence charged against defendant corporation is that it knowingly failed and omitted to properly secure or timber the roof of the excavation so as to make it safe for employes working under it. This alleged negligence was denied by defendant, and further defenses were interposed: (t) That the risks and dangers which caused the death of plaintiff’s son were necessarily incident to his employment, and were assumed by him; (2) that the station in question was at the time of his injury and" death undergoing necessary repairs, and that all dangers incident to the place of work were obvious and known to him. The plaintiff at the trial introduced her evidence, and at its conclusion defendant moved the court to direct a verdict in its favor. The court declined to do so, and defendant, after saving xn-oper exceptions, elected to introduce no evidence, but to stand on the case made by plaintiff. There were a verdict and judgment for plaintiff. Numerous errors were assigned, but the one chiefly relied on in argument, and which alone needs consideration at our hands, Is that the court erred in not directing a verdict for (he defendant.</p>

<p>Res Judtcata—Conclusiveness of Judgment—Effect of Intervention. ■</p> <p>Under the statute of Minnesota (Gen. St. 1894, § 5273) which authorizes any person having an interest in the matter in litigation to intervene by-joining the plaintiff in claiming what is sought by the complaint, “or by uniting with the defendant in resisting the claim of the plaintiff,” or by demanding adversely to both parties, where taxpayers intervened in an action against a city, and resisted plaintiff’s demand, obtaining a judgment dismissing the action on the merits, the city was a party to isuch judgment, and entitled to plead the same as an adjudication in bar of a second action against it on the same demand, although in Its cor- • .porate capacity it was estopped to set up the defense pleaded by the interveners which prevailed in the former action.</p>

<p>1. Evidence—Sufficiency—Inferences from Facts Proved.</p> <p>Plaintiff, in an action to recover for an injury received in defendant’s mine, alleged that, as he and another employé were climbing up the crossing stulls in an up-raise, the other man, who was above, was overcome by powder smoke, gas, and foul air, and fell, striking plaintiff, and causing.him to fall and receive the injury complained of. The evidence showed that the up-raise was impregnated with foul air, the effect of which was to- greatly weaken and debilitate any one inhaling it, and that this weakening and debility often came on very suddenly; that the other man was climbing ahead of plaintiff, and was an experienced miner, familiar with climbing 'stulls in up-raises; that ’something struck plaintiff, and caused, him to fall; and that both men were found immediately after at the foot of the up-raise, one dead, and the other severely injured. Held, that it was a reasonable inference from such evidence that the injury resulted from the cause and in the manner alleged, which justified the submission of the question to the jury, and that such inference was sufficient to sustain a verdjet'so finding, rendered under proper instructions.</p> <p>3. Master and Servant—Injury of Servant—Unsafe Place to Work.</p> <p>A mining company violated its duty in respect to providing its employes with a reasonably safe place in which to work, where, through its foreman, it directed employes to go into an up-raise known to be filled with gas and foul air, and is liable for an injury resulting from'the effect of such foul air to a workman who was not guilty of contributory negligence.</p> <p>8. Same—Contributory Negligence.</p> <p>Plaintiff, who was inexperienced in mining, was employed by defendant as a “trammer,” to load and unload and wheel away dirt and rock in its mine. When he liad been working in the mine three days, he was sent, with another workman, into an np-raise, known by the foreman to be filled with gas and foul air, to clear away dirt and rock. While climbing up, the other workman was overcome by the foul air, and fell, causing plaintiff to fall and receive severe injury. Plaintiff bad been in the up-raise the day before, and knew that the air was bad, but also that there was a ventilating apparatus, which, when properly operated, clarified it so that it was not dangerous to work there. Held, that such facts shown by the evidence were sufficient to support a finding by a jury that plaintiff was not guilty of contributory negligence in obeying the orders of the foreman to go into the up-raise.</p> <p>4. Appeal—Review—Harmless Error.</p> <p>A statement in the charge, in an action by a servant for a personal injury, that “it was the defendant’s duty to use ordinary care to furnish the plaintiff a safe place in which to work,” while technically inaccurate, because it failed to limit the requirement to a “reasonably” safe place, did not constitute prejudicial error, where it was so explained by the context that the jury could not have been misled, and especially where defendant practically admitted that the place where plaintiff received his injury was not reasonably safe, and denied having sent him there for that reason.</p> <p>5. Sime—Waiver of Error—Remarks of Counsel.</p> <p>Counsel cannot necessitate a new trial by their own failure to interpose seasonable objection to remarks of adverso counsel; and where, on the first objection, the court excluded the objectionable remarks from the .consideration of the jury, there was no reversible error.</p> <p>6. Same—Admission of Evidence—Harmless Error.</p> <p>It is harmless error to permit a question to be answered which calls for the conclusion of the witness, where the conclusion stated was conclusively established by other evidence introduced by the adverse party.</p> <p>7. Master and Servant—Knowledge of Dangers of Employment—Representations isy Servant.</p> <p>A statement by an employé, when he was hired, that he was a miner, will not impute to him knowledge of dangers in a mine arising from the gross negligence of the master, but only those of a mine conducted with ordinary care and prudence.</p>

<p>1. Master and Servant—Injury of Servant—Unsafe Place to Work.</p> <p>Plaintiff and three other workmen of defendant were engaged in transferring railroad rails from a car to the charger platform of a steel furnace. After pushing the car up abreast of the platform, which was six feet distant, they placed two skids, consisting of pieces of rails, from the car to the platform, and pushed the rails up such skids, two men standing at each end. The end of one of the skids, by reason of being insecurely fastened to the platform, slipped off, and a rail fell, striking plaintiff and breaking his leg. There was a shallow ditch or drain some six feet from the skid at which plaintiff was working, and parallel thereto, into which, as he claimed, he stepped and fell while attempting to avoid the falling rail. The ditch was plainly visible, and did not interfere with the work in pushing the rails up the skids, and no complaint had been made of it. B eld, that it did not render the place to work unsafe, nor was defendant chargeable with negligence in permitting it to remain there which rendered it liable for the injury.</p> <p>3. Same—Contributory Jíeotaotonoe.</p> <p>Whore it was the (InLy of plaintiff and his fellow workmen to adjust skids between a ear and a platform upon which they were pushing railroad rails, and means were at hand by which such skids could have been made secure, but they were not securely fastened, as plaintiff knew, and by reason of the slipping of one of them a rail fell and he was injured, he was guilty óf contributory negligence which precluded his recovery from the master for such injury, even though tlie latter was also negligent.</p>

<p>On Application' for Writ of Mandamus.</p>

<p>1. Pleading—Plea in Abatement—Montana Code.</p> <p>Tlie liberal construction of pleadings required by the Codes renders it ■ immaterial what name is given to a pleading, and, although pleas in abatement are abolished by the Montana Code, which provides (sections . ' 080, 681) that objections on the ground of a defect or misjoinder of parties, not appearing on the face of the complaint, may be taken by an-' swer, a rule of the circuit court of the United States in that district, ■; requiring all matters in abatement to be set up by a separate preliminary . answer, is not inconsistent with such provision, and a plea in abatement filed in that court will he treated as such an answer, where it is the same in substance, and will he considered on its "merits.</p> <p>2. Wrcjngful Death—Action by Heirs under Montana Statute—Necessary , Parties Plaintiff.</p> <p>., ■ Under the statutes of Montana the property of a deceased intestate • who leaves no issue or husband or wife goes to his father and mother in equal shares. A special statute of the state also gives a right of action for wrongful death to the heirs of the person killed. Hdd, that, such right of action was joint, and an action could not he maintained by the mother alone where the father was also living, even though at the time the question was presented by a plea in abatement the right of the father to bring an action was barred by limitation.1</p>

Charles F. Scharer and Albert Murcrey wore fellow servants of H. T. Weeks at work in his mine in Colorado, when Murcrey carelessly dropped a jack screw down the shaft, and it broke Scharer’s leg. Seharer sued his employer, and alleged that the injury was caused by Ills failure to adopt reasonable rules for the operation of tlie mine, and by his failure to employ and retain competent workmen. The averments of the plaintiff were denied by the defendant.

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

Ill Error to the Circuit Court of the United States for the Eastern District of Tennessee. In 1805 the plaintiff in error contracted for a supply of water for public uses, and for the lighting of its streets by electricity. The tax budget for that year included a tax of 22 cents on each $100 of assessable values for the purpose of paying for the water supply so to be provided, and of 18' cents to meet the expenses of public lighting.

This was a proceeding by the secretary of the treasury for the condemnation of land as a site for an addition to the post-office building in Bridgeport, Conn.

<p>At Law. On motion to strike out parts of reply.</p>

<p>In Bankruptcy. On motion for confirmation of referee’s report recommending the bankrupt’s discharge.</p>

<p>1. Public Bands—Prosecution for Cutting Timber—Information.</p> <p>An information charging the uularvful cutting of timber on public lands, although drawn to conform to the requirements of Rev. St. § 2461, and intended to charge an offense thereunder, may be treated as drawn under section 4 of Act June 3, 1878 (20 Stat. 90), where it contains all the averments necessary to charge an offense, thereunder.</p> <p>3. Same—Trial—Defenses.</p> <p>In a prosecution under Act June 3, 1878 (20 Stat. 90, c. 151), for the unlawful cutting of timber on public lands, the burden rests on the defendant to establish the defense that such cutting was lawful under the act of the same date (20 Stat. 88, c. 150), which authorizes the cutting of timber from mineral lands for certain purposes and under prescribed regulations, and where he introduces no evidence showing a compliance with such regulations in material respects, or that the timber was in fact cut for the prescribed purposes, it is not error for the court to charge the jury that it was immaterial whether the land was mineral or nonmineral.</p>

<p>1. Counterfeiting—Uttering Instrument in Similitude of Government Obligation—Confederate Notes. ,</p> <p>The passage of a Confederate bill as money is not a violation of the fourth clause of Rev. St. § 5430, which makes it an offense for any person, except under authority of a proper officer, to have in his possession “any obligation or other security engraved and printed after the similitude of any obligation or other security issued under the authority of the United States, with intent to sell or otherwise use the same”; but, to constitute a violation of such provision, the instrument used must in its inception have been intended to simulate some obligation or security of the United States. The general likeness which one form of paper . money bears to another is not sufficient.</p> <p>2. Same—Use of Instrument to Perpetrate Cheat.</p> <p>The use as money of an instrument which does not possess the requisite similitude to some national obligation or security to perpetrate a common-law cheat is not an offense against the United States, hut is solely within state authority.</p>

<p>In Equity. On motion for preliminary injunction.</p>

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

<p>Patents—Validity and Infringement—Stone Sawing Machines.</p> <p>Tbe Williams patent, No. 429,874, for improvements in diamond stone sawing machines, and in methods of operating the same, while describing a machine in which theoretically there is an exact correspondence between the feeding movement and the progress made by the saw blade through the material, cannot be limited to one in which there is such exact correspondence at all times in practical operation, which would be inrpossible of attainment with the machine shown, in which there is no such unyielding fixity of the parts as would prevent the yielding of the saw blade by reason of its resiliency or the elasticity of the frame, and its cutting with greater rapidity at some times than at others. Such patent construed, and held not anticipated, valid, and infringed, as to claims 1, 2, and S.</p>

<p>1. Patents—Patentable Invention—Determination on Demurrer.</p> <p>A patent should be declared void on demurrer only when there is no room for thinking that any evidence could be adduced which would alter the clear conviction of the court that there is no patentable invention in the production patented, and ¿specially where the presumption of invention arising from the granting of the patent is reinforced by the fact shown that the application was seriously contested in the patent office in interference proceedings.</p> <p>2. Same—Counter Seats for Stores.</p> <p>The device shown in the Milner patent, No. 597,686, for counter stools or seats for stores, is not so manifestly lacking in patentable invention as to justify a court in declaring the patent void on demurrer.</p>

<p>1. Patents—Invention—Evidence of Utility and Extensive Use.</p> <p>To entitle evidence of the utility of a patented machine and of its. extensive use to consideration on the question of invention, it must clearly show utility superior to that of other like machines, and a mdre extensive use.</p> <p>2. Same—Fanning Mills.</p> <p>The’Sperry patent, No. 267,092, for a fanning mill, shows only a combination of old appliances and devices previously used in such mills, in a manner which produces only old results and evolves no new functions, and is void for lack of patentable invention.</p>

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

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

<p>1. Patents—Invention—Des'gn for Weighing Machine.</p> <p>'The Patterson design patent No. 20,GUO. for a design for a case for weighing machines, is void for lack of patentable invention.</p> <p>2. Same—Infringement—Weighing Machine.</p> <p>The Smith & Washburn patent, No. 392,098, for a coin-controlled electrical weighing scale, claim 5, construed, and held to belong to the subclass of automatic weighing machines in 'which is employed the impulse of gravity to move the indicator, and, in view of the state of the art, to cover a narrow invention, not iiuringcd by a machine using a different method of employing the* impulse of gravity than that pointed out by the speciiication of the patent in suit.</p>

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

<p>Patents—Prior Public Use—Evidence of Experimental Character.</p> <p>Where it is shown that an inventor installed a machine embodying his .complete .invention, for practical use by a purchaser, more than two years before his application for a patent therefor, the burden rests upon him to sustain a claim that such use was experimental by proofs that are full, unequivocal, and convincing; and his own unsupported testimony, given 20 years afterwards, that the installation was for experimental purposes only, is insufficient.</p>

<p>1. Patents—Construction of Claims.</p> <p>An express functional limitation in a claim cannot be ignored in its construction to determine infringement.</p> <p>2. Same—Infringement—Deep-Well Packer.</p> <p>The Masseth patent, No. 439,100, for a packer for deep wells, claims 1 and 2, construed, and held not infringed.</p>

<p>In Admiralty. Action against charterer to recover for demurrage and extra eixpense in loading and discharging.</p>

<p>Collision—Liability of City—Relation of Master and Servant.</p> <p>A municipal corporation is liable in a court of admiralty for a collision caused by the negligence of its servants in charge of. a vessel of which it is owner, who were operating the same under the directions of the corporation; and it is immaterial whether the vessel was employed in a 'municipal service or under orders which were ultra vires, the relation of master and servant being sufficient to render the corporation responsible under the rule of respondeat superior.</p>

On Proceedings for Contempt against Edward E. Bessette for conspiracy with defendants to defeat the restraining order issued therein.

<p>1. Removal op Causes—Time for Application—Void Service of Summons.</p> <p>Where the service of summons on a corporation in an action in a state court is void, the time limited by the state statute for the defendant to appear and plead, and within which it may file a petition for removal, does not begin to run from such service, and it may appear for the purpose of filing such petition at any time, even after judgment has been rendered against it by default.</p> <p>2. Same — Effect of Eilino Petition as Appearance — Motion to Quash Service.</p> <p>The filing of a petition and bond for removal is not such an appearance as precludes the defendant from moving to set aside the service of process after removal, and such a motion filed in the state court before removal, and not. acted on, is properly before the federal court for decision after removal.</p> <p>8. Process—Service on Corporation—Collusion.</p> <p>One H., who was resident manager in South Dakota of an Illinois corporation, in which he was also a director, assigned a cause of action existing in his favor against the corporation to a friend without consideration for the purpose of having suit brought thereon by the assignee for his benefit, and by his direction such suit was brought in a state court, and the summons was served on him as manager of the corporation. Held, that such service was void, H. being the real party in interest as plaintiff.</p>

<p>Federal Courts Staying Action in State Court—Ancillary Jurisdiction.</p> <p>A circuit court of tbe United States which has rendered a decree from which an appeal is pending has power, upon an ancillary hill filed for the purpose, to grant an injunction restraining one of the parties from prosecuting against the other an action subsequently commenced in a state court of another state involving a question or affecting rights determined by such decree until the appeal therefrom has been determined.1 *</p>

<p>1. Appeal—Reversal—Want of Jurisdictional Averments in Bill.</p> <p>On an appeal from a decree of the circuit court sustaining a demurrer to the bill and dismissing the suit on the merits, where the bill cont.i in« no averment of the amount or value in controversy, essential to give a federal court jurisdiction, the decree will be reversed, with, directions to enter a dismissal for want of jurisdiction and without prejudice.</p> <p>2. Same—Costs.</p> <p>, Where a bill filed in a circuit court of the United States contains no averment, of the amount or value in controversy, the costs of an appeal taken by complainant will be taxed to him, and a dismissal for want of .jurisdiction will be directed, without leave to amend, although no objection to jurisdiction was made by the defendant below.</p>

<p>In Equity. Suit for rescission of contract of settlement.</p>

<p>In Equity. On final hearing-.</p>

<p>1. Appeal—Final Decree—Suit for Partition.</p> <p>A decree in a suit for partition, in which the only question in controversy was whether the land should he partitioned in specie, or sold and the proceeds divided, which determines such issue, and orders a sale of the Find, leaving the distribution of the proceeds as the only tiling remaining to he done after such decree has been executed, is final, for the purposes of an appeal. 1</p> <p>2. Partition—Directing Sale—Impracticability of Division.</p> <p>A tract of land sought to be partitioned consisted of 128,000 acres, largely swamp, a largo part of it practically worthless, and the remainder of very unequal value; the timber, which constituted its chief value, being in scattered tracts, and at greatly unequal distances from water courses by which it must be marketed. There were also over many portions of it adverse claims of various character, with uncertain boundaries. Held, that the trial court correctly decided that such tract could not be divided without injustice to some of the owners in common, of whom there were eight, owning unequal shares, and properly ordered it sold and the proceeds distributed, as the only just and practicable method of division.</p> <p>3. Same—Parties—Lius' Creditors of Tenant is Common.</p> <p>Creditors having liens on the interests of 'some of the tenants in common of a tract of land are not necessary parties to a suit for its partition, but where the land is sold they may intervene and assert their liens against the share of their debtors in the proceeds.</p>

<p>Affidavits—Power to Compel Making—Federal Courts.</p> <p>A federal court or judge lias no authority to appoint a commissioner to require persons having- knowledge of relevant facts to make affidavits to such facts for use on an application for the appointment of a receiver because such persons refuse to make affidavits voluntarily. The power to compel testilhony by deposition does not extend to ex parte statements.</p>

<p>Equity—Indispensable Parties.</p> <p>To a suit to require defendant to account for the proceeds of drafts drawn by one alleged to have been acting as complainant’s agent, which the bill charges defendant with having received through a conspiracy between himself and the agent to appropriate the profits of the agency, or as trustee in invitum, because of his having intermeddled with the business of the agency by receiving the proceeds of such drafts, the agent is a necessary and indispensable party, without whose presence a federal court of equity, cannot entertain the suit and undertake to determine the rights of the parties, although such agent is not within the district, and cannot be brought in.</p>

-At Law. Action on school district bonds and coupons. Trial to the court. , / Findings of Fact. Held: to the amount of $72,000.00, at 50 cents on the dollar, and take in exchange new bonds drawing 7 per cent, interest, not counting accrued interest: Now, therefore, it is resolved by the board that they issue bonds to the amount of $36,000.00, and exchange the same with the aforesaid O. W. Rollins, and also to allow the treasurer 2…

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The action in the Circuit Court was by the plaintiffs-in-error, citizens of the Slate of Pennsylvania, against defendant-in-error, a corporation under the laws of Illinois; and grew out of a contract wherein the plain tiff.s-in-error agreed to construct for the defendant-in-error a gas holder for the contract price of Twenty-live Thousand Dollars, of which ;|>9,<Hf>.89 is still unpaid. For this balance the suit was brought.</p> <p>At, and before, the making of- the contract in question, the defendant-in-error was engaged in the manufacture and distribution of gas in the City of Joliet, 111. Its plant had a manufacturing capacity of 287,000 cubic feet, but a storage capacity of about ■ 90,000 feet only. This 'storage capacity seems to have been sufficient for the needs of the entire year except during-the months of December and January, when, because of the Holidays, and the increased lengths of the nights, the demand for gas was greatly increased. To meet this particular need, the contract in question was contemplated.</p> <p>July 3rd, 1899, defendant-in-error wrote to the plaintiffs-in-error, asking for a proposition on a holder in steel tank of a capacity of 300,000 feet, and added: “Will yon kindly state whether or not you can have this holder completed by December first of this year. There is no necessity for us to build a holder this year unless it can be completed by that date”; to which, the plaintiffs-in-error, July 13th, replied, stating the price of $25,000, but making no reference to the time for completion. July 18th defendant-in-error acknowledged the letter of July 13th, stating it would give plaintiffs-in-error the contract at once to build the holder at the price stated, providing the plaintiffs-in-error would guarantee to have the same completed on or before December first of the current year, and added: “Unless it is completed before December first of this year, we should not care to have it ready before the middle of September or October, 1900. If you cannot guarantee to have the holder completed by December -first, we shall certainly advertise for bids based on completion at any time before October first of next year, and know we can save ourselves some money by so doing. As I said, however, we are willing to pay you your price on an absolute guarantee that it will be finished by December first, providing the details and specifications are satisfactory”; to which, plaintiffs-in-error replied by telegram, July 22nd, as follows: “Can complete holder by December first if material is ordered immediately.” July 31st following defendant-in-error replied: “We accept your -proposition for Joliet; must be done December first.”</p> <p>Thereupon, plaintiffs-in-error began the construction of the holder, but it was not finished until the 17th of January following. January 15th the holder was accepted by the defendant-in-error, “subject to our final settlement with your company”, and was filled with gas, whether for trial or storage does not clearly appear.</p> <p>A jury having been waived, the case was submitted to the Court for trial, by whom it was found, that by reason of the delay in the completion of the ■holder, the defendant-in-error was damaged to the extent of Twelve Hundred Dollars, ($1,200); and a judgment was rendered for the balance of the contract price, less this sum. From this finding and judgment, this writ is prosecuted.</p>

In June, 1898, the defendant, a life insurance company created hy and organized under the laws of the state of Wisconsin, with its home office at Milwaukee, was doing business in the state of Virginia; T. A. Cary at Richmond, Va., being its state agent, and Wm. H. John its local agent at. Coeburn, in said state.

<p>1. Contracts—Purchase of Cotton For Future Delivery—Validity Under South: Carolina Statute.</p> <p>Rev. St. S. C. 1893, § 1859 et seq., declares void every contract for tbe sale of certain articles, including cotton, for future delivery, unless tbe party contracting to sell shall at the time be the owner of such article, or the owner’s authorized agent, or unless it is the bona fide intention of both parties to the contract at the time of making the same that the said article shall be delivered and received in kind at tlie time for delivery specified. The statute also places the burden upon the plaintiff in any action Based on such a contract to bring the ease within its provisions, to be entitled to recover thereon. Held, that under such statute a broker who advanced margins for his principal to protect a purchase of cotton for future delivery on the New York Cotton Exchange could not recover the same from the principal, where the latter testified that it was not his intention at any time to receive or pay for the cotton, but to make a cask settlement in accordance with the difference between the market and contract price, notwithstanding the fact that under the rules and by-laws of the exchange, subject to which the defendant knew the contract to have been made, and to which he assented, actual delivery in kind, or acceptance and payment, could be enforced by either party. The statute goes behind the contract itself, and makes the actual intention of both parties that there should be a delivery and acceptance essential to its validity, and the right to enforce delivery is not inconsistent with an intention not to insist on such right.</p> <p>2. Federal Courts—Rules of Evidence—State Statute.</p> <p>Under the provisions of the conformity act (Rev. St. U. S. § 721), the rules of evidence of the courts of a state,’established by statute or decipión, become those of a United States court sitting therein, in actions at law. 1</p>

<p>1. Contracts for Government Work—Bonds of Contractor—Claims Secured.</p> <p>The surety in a bond given by a contractor for government work, conditioned as required by Act Aug. 13, 1894 (28 Stat. 278), to secure the payment of all persons supplying the contractor “labor and materials in the prosecution of the work,” is liable, in favor of one supplying materials, for the price of materials so furnished which actually entered into the work, together with the expense of transporting the same to the ■ place where the work was being done, paid by the claimant, which may properly be considered as a part of the price; also for materials used in the construction of false works- necessary in the performance of the contract; but he is not liable for repairs or equipment furnished for a steam launch owned and used by the contractor to transport supplies, nor for materials for the construction of dump cars, tracks, derricks, storage sheds for materials, or other similar structures or appliances used by the contractor, or tools for use by the workmen.</p> <p>2. Payments—Application as between Creditor and Surety.</p> <p>Where plaintiff supplied materials to a contractor for government work, for a part of which he was protected by the contractor’s bond, and for part of which he was not, as between him and the surety on such bond payments made on account generally by the contractor should be applied to the payment’ for materials furnished and charged prior to the dates of such payments.</p>

<p>D Public Lands—Right of Railroad. Company to Cut Timber — Construction of Statute.</p> <p>Act March 3, 1875 (18 Stat. 482), granting right of way for railroads over the public lands, which confers on a company so constructing its road,'“which shall have filed .with the secretary of the interior a copy of itv articles of incorporation and due jiroofs of its organization under the same,” the right to take timber and other materials for the construc- . • tion of its road from public lands adjacent to its line, confers no right to cut timber for- such purpose prior to the filing of the required papers, nor does the subsequent use in the construction of the road of timber so cut render the cutting lawful, or devest the title of the United States thereto, since the act does not give the right to appropriate timber already cut.</p> <p>8. Same—Action for Unlawful Cutting of Timber- Defenses.</p> <p>Where defendants, in an action by the. United States to recover the value of timber cut 1‘rom public lands, defend on the ground Uiat the timber was taken for use in the construction of a railroad, as authorized by Act; .March !!, 1875, the burden rests on them to bring themselves within the provisions of such act; and when it; appears that at least a part of the timber was cut before the railroad company luid filed its articles and proof of organization with the secretary of the interior, so as to be entitled to take timber for its use, it is incumbent oil the defendants to show what part, if any, was cut after that time.</p> <p>8. Same—Measure of Damages.</p> <p>Defendants, who unlawfully cut and removed timber from public lands, but believing, in good faith, that they had the lawful right to cut tlie same, although negligent, are liable only for its value as it stood in the trees.</p>

<p>Bankruptcy—Allowance on Compensation to Assignee.</p> <p>Assignees under a general assignment, which was itself an act of bankruptcy and constructively fraudulent and in violation of the bankruptcy act, are not entitled to compensation from the estate for their services rendered prior to the filing of petition in bankruptcy against the assignor, and they cannot retain any sum as such compensation from the proceeds of the property in their hands.</p>

<p>Bankbottct—Jurisdiction of Court—Setting Aside Adjudication.</p> <p>The settled rule that federal courts have no power to set aside their judgments, decrees, or orders unless steps to that end are taken during the term at which such judgment, decree, or order was entered is applicable to bankruptcy proceedings, except in case of an application for the revocation of a discharge, which is expressly provided for by Bankr. Act 1898, § 15; and a court of bankruptcy is without jurisdiction to entertain a petition to set aside an adjudication which was not filed until several terms had intervened since the adjudication was made.</p>

Petition for Review and Revision of Order of the'District Court of the United States for the Southern District of Illinois, in Bankruptcy. On petition of Homer C. McHarry to review and revise an order declaring a remainder in realty an asset of his estate.

<p>Bankruptcy—Preference—Rioht to Retain.</p> <p>An insolvent, within four months prior to his bankruptcy, borrowed $100 from one to whom he previously owed $75, and gave him an order on a third person for the entire amount, which order was accepted, and after the debtor’s bankruptcy was paid. Held that, upon a finding that the creditor had at the time no reason to believe the debtor insolvent, he was entitled to the money so paid; the $100 being the proceeds of a security taken for a present consideration, and the $75 a preference, which, because innocently received, the creditor could not be compelled to. surrender.</p>

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

<p>In Bankruptcy.</p>

<p>]n Bankruptcy. On review of decision oí referee.</p>

In Bankruptcy. On petition of Wilcox and others, creditors, to be allowed to prove his claim in the matter of the bankruptcy of Frederick Swift and others, and for reinstatement of a lien.

<p>Bankruptcy—Discharge—New Proceedings after. Refusal of Discharge.</p> <p>A bankrupt who lias been refused a discharge is not debarred from filing a second petition, and obtaining a discharge thereunder, and such discharge, when granted, will be made general, leaving its effect as to debts proved under tbe first petition, but not under the second, to be determined whenever the occasion may arise.</p>

<p>1. Bankruptcy—Discharge—Concealment op Assets and False Oath.</p> <p>A bankrupt, bail been engaged in business as a retail merchant. On November 23d he gave a chattel mortgage on Ills stock to a trustee for creditors, who took possession of and sold the same. The stock was inventoried by the trustee at $2,5(>0. The evidence showed that on July 1st, preceding, the stock amounted to about $1,000, and between that (late and the giving of the mortgage he had purchased additional stock to the value of $7,1557 on credit, on which he had not paid to exceed $200. His bank book also showed deposits during ihat time of about $3,400, of which about $3,100 had been checked out. Neither the checks nor stubs were produced; nor did the bankrupt explain wliat use was made of 1be money, or what had become of 1he goods. There was also other evidence in the record which tended to discredit his testimony and his business integrity. Hold, that such evidence, together with his failure to sustain the burden placed upon him by Bankr. Act 1808, § 7, subd. 0, of making a full and frank disclosure as to liis business transactions, justified a finding that lie had property at the time of Ills bankruptcy which lie concealed, and that he knowingly and fraudulently made a false oath to his schedules, in which he stated that he had no properly above his exemptions, and warranted the refusal of liis discharge.</p> <p>2. Same—Fees op Rkkeeke—.Hearing on Application eoe Discharge.</p> <p>Where objections to a bankrupt’s discharge are referred to a referee for hearing, he is entitled to a reasonable allowance for his services, in addition to the fees allowed him by the bankruptcy law.</p>

<p>I5axkrci>toy—Surrender of Preferences—New Credits.</p> <p>Bankr. Act 1898, § 60c, which provides that “if a creditor lias been preferred, and afterwards in good faitli gives the debtor further credit without security of any kind, for property which becomes a part of the debtor's estate, the amount of sucli nevr credit remaining unpaid at the time of the adjudication in bankruptcy may he set oil against the. amount which would otherwise be recovera ble from him.’' entitles any preferred creditor, as defined in section (iOa, to a deduction of the amount of such new credits from the preferences which lie is required to surrender before proving his claim, and is not limited in its application to cases where» the trustee sues to recover the preferences.</p>

<p>In Bankruptcy. On demurrers to petition of trustee.</p>

<p>1. Bankruptcy—Compensation of Referee—Allowance for Expenses.</p> <p>Under Bankr. Act 1898, § 40a, and General Order No. 35 (18 Sup. Ct. ix.), a referee is not authorized to charge a per diem in any case, nor for any order he may enter. The provision of such general order, permitting an allowance to a referee for expenses incurred in publishing or mailing notices, etc., refers to actual expenses; but a referee may make ’ a general charge for blanks used in mailing notices to creditors and for orders entered, and also for clerk hire, where the extent of his business is such that a clerk is needed, which charge should bé a gross sum, and uniform in each case, regardless of the amount of work done.</p> <p>2. Same—Powers and Duties of Referees.</p> <p>A referee in bankruptcy has no authority to collect or receive money belonging to an estate, nor to issue subpoenas.</p>

<p>Bankruptcy—Preferences—Deduction of New Credits.</p> <p>Bankr. Act 1898, § 60c, entitles a creditor who lias received preferential payments on account, but who has extended further credit as therein specified, to a deduction of the amount of such new credits from the preferences lie would otherwise be required to surrender before proving the remainder of his debt, and is not limited in its application to cases where the trustee sues to recover the preferences.</p>

<p>In Bankruptcy. On petition of the widow of the bankrupt, who died pending the proceedings.</p>

<p>Criminal Prosecution. On motion to quash indictment.</p>

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

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

<p>In Admiralty.</p> <p>Tills is a suit in rem against the steam schooner Del Norte, and in personam against her owner, by T. F. Towr.sley. libelant, to recover damages for alleged losses resulting from misconduct of the captain and steward of the vessel while she was in his service under a charter party, and for breach of (lie contract contained in the charter party by withdrawing the vessel from the charterer’s service before the termination of the period for which slie was hired. The owner of flie Del Norte tiled a, cross libel in personam against the libelant to recover a balance alleged to be due for hire of the ship under the charter party. Decree for the respondent and cross libel-ant.</p>

<p>In Admiralty. Libel by seaman to recover wages, and damages for wrongful discharge.</p>

<p>Í. Salvage—Monet Recovered from Body Found at Sea—Salvage Award.</p> <p>A fishing schooner on her voyage from Gloucester to the fishing grounds on August 17, 1898, found floating in the water the body of a man who had been a passenger on the Bourgogne, sunk in collision on July 4th. Upon the body was found a wallet containing coins and bank notes to the value of $1,050. The body was immediately buried by sinking in the usual manner, and the money was brought back and paid into a court of admiralty. The man’s name was not discovered. The salvage involved no danger to vessel or crew. ¡Helé, that in view of the probability that the money would not otherwise have been recovered, and of the meritorious action of the officers and crew in bringing it into court, when they might readily have keiit and divided it among themselves, one-half the amount would be awarded for the salvage services, to be divided between the owners, master, and crew.1</p> <p>2. Public Administrator—Right to Property of Unknown Decedent— Fund in Court of Admiralty.</p> <p>A number of gold coins and bank notes were taken by the crew of a fishing schooner from the body of a man found floating in the sea, and who had been a passenger on a steamship sunk in collision some weeks before. The money was paid into the registry of an admiralty court, and an award for salvage services was made, and paid therefrom to ■ the owners and crew of the schooner. The body was buried at sea, and after the lapse of more than two years remained unidentified, except for a name in a receipt found thereon, and no relatives or heirs were ¡ known. JEtelck, that the public administrator of the county in which the ' admiralty court was located, who had been granted letters of administration- on the estate of the decedent by the probate court, pursuant to the statutes of the state, was entitled to possession of the remainder of the fund in preference to the salvors, claiming as the finders of lost goods, whose owner was unknown, or to the United States, claiming as successor to the prerogative rights of the king of England.</p>

In Admiralty. About midday, in a substantially, straight channel of the St. Clair river, the steamer Yakima came into collision with the schooner Helvetia, both receiving considerable injuries. The navigable channel of the river is substantially 1,800 feet wide. From shore to shore its width is' about 2,100 feet The witnesses in general refer to the banks of the deep-water channel, and not to the visible shore line, and we shall do likewise, unless. specifically mentioned.

<p>1. Jurisdiction of Federal Courts—Federal Question.</p> <p>A suit to enjoin tho collection of taxes levied on the capital stock of a hank, and exceeding ¡¡¡2,000 in amount, on the ground that the revenue statute under which such taxes were levied impairs the obligation of the contract embodied in the hank’s charter granted by the state, is one of which a federal court has jurisdiction, because of tho constitutional question involved, without regard to the citizenship of the parties.1</p> <p>2. Equity Jurisdiction — Preventing Multiplicity of Suits — Burrs to En- ; join Taxation.</p> <p>A court of equity has jurisdiction of a suit by a bank to enjoin a city from levying taxes upon its capital stock in violation of the terms of its charter, on the ground of the prevention of a multiplicity of suits, where it is alleged that the city lias repeatedly levied similar taxes in previous years, resulting in litigation in which the validity of the bank’s charter exemption from such taxation has been sustained by the supreme court of tho state.</p> <p>8. Res Judicata—Pleading.</p> <p>To raise the question of res judicata, the judgment relied on must he pleaded and proved.</p> <p>4. Same—Matters Concluded—Effect to be Given to Judgment of State Court When Pleaded in Another Jurisdiction.</p> <p>Under Rev. St. § 905, enacted pursuant to the authority vested in congress by Const. art. 4, § 1. to prescribe the effect to be given to judicial proceedings in other states, and which provides that the judicial proceedings of a state, when xiroperly authenticated, “shall have such faith and credit given to them in every court within the United States as they have by. law or usage in the courts of the state from whence the said records are or shall bo taken,” tbe effect of a judgment of a state court, when pleaded in a federal court or a court of another state in support of a plea of res judicata, is to lie determined by the “law or usage” of the state in which it was rendered. 2</p> <p>5. Same.</p> <p>A bank, in a bill filed in a federal court against a city to restrain the assessment and collection of taxes on its capital stock on the ground that it was exempted from such taxation by its charter, alleged that the matter was res judicata by virtue of a judgment of the supreme court of the state in an action between the same parties involving taxes assessed by tho city for previous years, in which complainant’s charter had been consi rued, and its claim to exemption sustained. By the settled rule of decision in tlio state, such judgment was conclusive only as to the identical taxes involved in the action, and had no conclusive effect upon the rigid to levy similar taxes in subsequent years. Held that, regardless of the rule of the federal courts as to the matters concluded by such judgments, the judgment pleaded could be given only tho effect it had by the “law or usage” of the state court, and did not, therefore, sustain the claim of res judicata.</p> <p>6. Taxation—Bank Capital—Exemption in Charter.</p> <p>Under the decisions of the supreme court of the United States and of the supreme court of Tennessee, a provision in the charter of a hank granted by the state of Tennessee requiring the bank to pay to the state “an annual tax of one-half of one per cent, on each share of stock subscribed, which shall be in lieu of all other taxes,” does not exempt the bank from the assessment of ad valorem taxes on its capital, but applies only to the.stock in the hands of its shareholders.</p>

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

<p>1. Building and Loan Associations — Contracts with Borrowing Stockholders—Law Governing.</p> <p>Where the bond given by a borrowing stockholder in a buildiug and loan association is dated and made payable at the home office of the association, and it is expressly declared therein that the contract shall be governed and construed by the laws of the state where such home office is situated, such provision being made to secure uniformity in tjie contracts of all stockholders, and not for the purpose of evading the usury laws of other states, the contract is solvable under such laws, although the security is situated in another state, where the stockholder resides.</p> <p>2. Same—Insolvency—Rule op Settlement with Borrowing Stockholder.</p> <p>Where the contract between a building and loan association and a borrowing stockholder is governed by tbe law of the state of the association’s domicile, under which it is valid, such law determines the rights of the parties and the amount due on the contract in a suit in a federal court to foreclose the mortgage after the association has become insolvent, and its affairs are being wound up by a court of equity in its home state, notwithstanding the laws and decisions of the state in which the suit is brought, and where the mortgaged property is situated, provide a different rule, and the courts of the state refuse to apply any other to suits affecting property therein, in the absence of any statute declaring such contracts against tbe public policy of tbe state, and nonenforceable against mortgaged land therein situated.</p> <p>3. Same—Collection of Assets by Receiver.</p> <p>The receiver of an insolvent building and loan association appointed in a proceeding to wind up its affairs is not entitled, in a suit to foreclose a mortgage given by a borrowing stockholder, to an order authorizing him to sell the stock of the defendant, also pledged as security for the loan, the purpose of the proceeding in which he was appointed being to pay off such stock by an equitable distribution of the assets.</p>

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

<p>At Eaw. Action on the bond oí a contractor for government work, for the use and benefit of a creditor of a subcontractor.</p>

<p>1. Appf.al — Questions Reviewablu — Rubins on Motion for New Trial. ( 1</p> <p>( Under the practice of the federal courts, the ruling on a motion for 1 new irial is not reviewable.</p> <p>2. Same—Questions Presented by Record—Refusal op Instructions.</p> <p>The refusal of instructions asked cannot bo. reviewed on appeal unless the bill of exceptions contains the evidence relied on to make such instructions applicable to tlio case as submitted to the jury.</p> <p>3. Same—Exceptions and Assignments op Error—Failure to Comply with Rules.</p> <p>Where but a single exception was taken, and a single assignment of error is made, covering the giving of certain instructions, the refusal to give others, and the charge as given, no question is presented which will be considered by the appellate court.</p> <p>4. Contracts—Construction—Drilling Oil Well.</p> <p>In an action to recover for the drilling of an oil well, which was made under a written contract by which the plaintiff agreed to complete and clean the well and deliver it to defendant for a stiinilated price iier foot, he cannot recover'for time lost in fishing for tools in such well, the necessity for which was one of the risks he assumed by his contract.</p>

<p>1, Collision—Passing Steamers on Great Lakes—Rules Governing Navigation in Fog.</p> <p>The steamer Florida, passing down Lake Huron in a dense fog at a speed of not less than six miles by the testimony of her own witnesses, first heard a passing signal of two whistles from a vessel almost directly ahead and not over half a mile distant. She answered with the same signal, and starboarded her helm, hut kept her speed. A minute later slie saw the other steamer two lengths away and on a course crossing her own, and she then increased to full speed in an attempt to cross ahead, but a collision occurred, in which she was at once sunk. Held, that she was in fault in respect to her speed, in violating Rule 15 of the rules governing the navigation of the Great Lakes (28 Stat. 645), which, provides that “a steam vessel hearing, not more than four points from right ahead, the fog signal of another vessel, shall at once reduce her speed to liare steerageway and navigate with caution until 'the vessels shall have passed each other,” and because prudent and cautious navigation required her, under the circumstances, on hearing the signal so near, to at once stop and reverso until the position and course of the other vessel could be ascertained with certainty, and she was not justified upon the apparent hearing of a single passing signal in neglecting such precautions.1</p> <p>2. Same.</p> <p>The statutory rules enacted in 1895 to govern navigation on the Great Lakes (28 Stat. 645) expressly provide, in Rule 28, that they shall not operate to exonerate any vessel from the consequences oi; “any neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case,” and such rules do not supersede any usual requirement of prudent navigation not inconsistent with tlieir positive provisions. In determining what constitutes the “cautious” navigation required by Rule 15, after vessels approaching in a fog have reduced their speed as therein provided, under the circumstances of any particular case, resort must be had to the general principles and requirements established by the decisions of courts of admiralty; .and a vessel will be held In fault for a failure to stop and reverse in such case, where prudent navigation required it.</p> <p>8. Same—Excessive Speed in Fog.</p> <p>The steamer George W. Roby, going up Lake Huron in a don.se fog, heard fog signals some three miles ahead, which proved to be from the Florida passing down. She cheeked speed to four or five miles, which the evidence tended to show was not as low as she might'have reduced and maintained steerageway. She continued to'hear tlie fog signals, which were approaching and apparently keeping the same bearing-, from one to three points off the port bow. When the vessels were some half a mile apart she blew two passing signals, of one blast each, at intervals, which were unanswered, and she then blew an alarm. There was a confusion of signals, but a passing agréement of two whistles was finally established, each vessel thinking such signal first came from the other. The Roby, on answering the supposed passing signal from the Florida, starboarded, and reversed her engines, but had not lost her headway when she struck the Florida and sunk her. The Roby had a lookout, but he was not on duty, the only lookout being the master on the pilot house, who was also engaged in navigating the vessel, giving tlie signals, and blowing bis fog whistle by hand. Held, that the Roby was in fault, (1) for not reducing speed to bare steerageway, as required by Rule 15, (2) for not. maintaining a proper lookout, and (3) for not stopping and reversing, at least as early as the time when her second passing- signal was not answered; since tlie fact that the bearing of tlie Florida as the vessels approached each other apparently remained unchanged should have advised the masier that her course was drawing nearer'his own, and that in proceeding he was running- risk of collision.</p> <p>4. Same—Failure to Maintain Lookout.</p> <p>To exonerate a vessel from fault for a collision where she failed to maintain a lookout, although she was navigating in a dense fog, and with knowledge that another vessel was approaching ahead, the burden rests heavily upon her to show that the presence of a lookout could not have guarded against the collision.</p> <p>5. Shipping—Limitation of Liability for Collision—Negligence of Master.</p> <p>A vessel owner is not to be deprived of the right to a limitation of liability for damages caused by collision, under Rev. St. § 4283, for the - misconduct of the officers or men of the vessel, to which be was not privy; and where a steamer was supplied with two watchmen, whose duty it was to serve as lookouts, the negligence of the master in failing to have a lookout properly stationed is not chargeable to the owners. 2</p> <p>6. Collision—Total Loss of Vessel—Measure of Damages.</p> <p>Where a vessel is sunk in collision, and damages are awarded the owner on the basis of lier total loss, be is not entitled to recover in addition for the loss of earnings under an unexpired time charter.</p> <p>7. Same—Distribution of Damages between Vessel and-Cargo—Effect of Harter Act.</p> <p>The sole purpose of the Harter act is to modify the relations previously existing- between the vessel and her cargo, arising from the contract of carriage; and the provision of section 3 exempting the owner from liability for faults or errors in navigation where his vessel was properly manned, supplied, and equipped, does not affect the operation of the equitable rule, which gives priority to the claim of - the innocent cargo owners over that of the vessel owner against the fund available for the payment of damages sustained through a collision for which both vessels have been adjudged in fault.</p> <p>8. Same—Stipulations in Bill of Lading.</p> <p>■Stipulations in bills of lading exempting tlie vessel from liability for cargo lost as tlie result of collision, or provisions that the carrier, if ■ held liable for loss of cargo, shall have the benefit of insurance thereon, have no application to a case where the vessel is sunk and lost, with her cargo, through collision for which both vessels were in fault, and the second vessel is allowed to recoup one-half the cargo damages awarded against her from the damages awarded in favor of the sunken vessel; nor do thpy apply because the claim of the vessel sunk is postponed to that of her cargo owners, the fund being insufficient to pay in full. In such case the right of a recoupment does not depend upon the relation of the carrying vessel to her cargo, but upon the relation of the colliding vessels to each other, and the right of preference upon tlie equitable principle that where the fund available is insufficient to pay all claims those of the innocent cargo owners are to be preferred over those of one whose fault contributed to the loss; and no question of liability of the carrying- vessel to her cargo owners is involved.</p> <p>9. Shipping—Proceedings for Limitation of Liability—Interest on Bond for Release of Vessel.</p> <p>Where the owners of a vessel, in proceedings for limitation of their liability for a collision, gave bond conditioned for the payment into court on its order of the appraised value of the vessel “and the interest on the same as provided by law,” and thereafter contested their liability, the result being an award against the vessel exceeding its value, the stipulators are liable for interest on the bond from the date of its execution at the legal rate.</p>

<p>Collision— Sailing Vessels Crossing—Review op Findings on Appeal.</p> <p>Findings of fact made by a court of admiralty, which wore determinative of the question of fault for a collision at sea between two sailing vessels, considered and affirmed on appeal.</p>

<p>1. Jurisdiction of Federad Courts—Amount in Controversy.</p> <p>Where ihe amount claimed in a hill to enforce a lien exceeds §2,000, the jurisdiction of a federal court is not defeated by the fact that it appears on the face of the hill that an action to recover a portion of the claim is barred by limitation, under' a state statute.1</p> <p>2. Parties—Suit to Enforce Lien—Tenants in Common.</p> <p>A testator devised lands to two persons in undivided moieties for life, , with remainder to their children, subject to the payment by each of an annuity to the testator’s widow during her life, which annuity was made a charge upon the land, field that, in a suit by the widow against one of such devisees to enforce a lien for unpaid installments of the annuity due from him against an undivided half of the land, neither the other devisee nor her children were necessary parties.</p> <p>8. W inns—Construction—Devise of Lands Charged with Annuity.</p> <p>A. 1 estator devised lands for life, subject to the payment by the life tenant of an annuity to the widow of the testator “during each and every year of her natural life,” which annuity should “be and remain a charge and lien upon said lands, houses, and real estate in tills item mentioned.” By a subsequent clause in said item he devised the remainder in fee to tile children of the life tenant or their descendants living at the death of Ihe life tenant. Held, that it was the intention of the testator to secure the payment of the annuity during the life of his widow, and that it was a charge upon the estate of the remainder-men as well as upon the life estate.</p> <p>4 Same—Election by Widow—Presumption.</p> <p>Rev. St. Ohio, § 5964, requiring an election by a widow to take under the will of her husband, applies only to domestic wills, so far as it relates to the time and manner of mailing an election; and in a suit by a widow to enforce a iien for an annuity, given by the will of her husband, alleged to have been probated in another state, and a copy to have been filed and recorded in Ohio, it must be presumed that such will was a foreign will, proved in the domicile of the testator, and that complainant elected to take thereunder.</p> <p>5. Same—Annuity Charged upon Lands—Limitation of Suit to Enforce Lien.</p> <p>Rev. St. Ohio, § 4981, does not bar a suit to enforce a lien upon lands for installments of an annuity which have been in arrears for more than six years, where the will by which the lands were devised expressly provides that the annuity “shall he and remain a charge and lien” thereon.</p>

Indictment against Reuben Lewis for murder, charged to have been committed at Ft. Sam Houston, Tex.,—a place under the exclusive jurisdiction of the United States.

In Equity. Suit for injunction. On final hearing. This is an action to restrain the publication of circulars and letters stating that spring-tooth harrows manufactured by the complainant infringe certain pa tents owned by the defendant.

<p>1. Corporations—Rights of Minority Stockholders.</p> <p>Although, the majority stockholders of a corporation may lawfully make a contract with the company, such contract will be scrutinized with much greater care than if made with a third party; and unless it appears that it was made honestly, and for an adequate consideration, a court of equity will interpose to prevent it from being used oppressively, and in violation of the rights of the minority stockholders, no matter in what form or by what subterfuge such rights are invaded.</p> <p>2. Same—Suit by Minority Stockholders—Sufficiency of Bill.</p> <p>A bill filed by minority stockholders, which alleges, in substance, that the majority have, by electing directors who act solely in their interests, caused contracts to be entered into by the corporation transferring all of its property to a second corporation, of which they are owners, for a wholly inadequate consideration, states a cause of action which entitles complainants to relief.</p> <p>8. Same.</p> <p>A bill filed by minority stockholders to set aside a contract made by the corporation as having been obtained by the majority stockholders in their own interest and in fraud of the rights of complainants, need not set out such contract in luce verba, especially where it is alleged to be in the possession of the defendant corporation.</p> <p>4. Same—Parties.</p> <p>In a suit by minority stockholders against the corporation and a second corporation alleged to be owned by the majority stockholders to set aside a contract between them as in fraud of the rights of complainants, a person alleged merely to have executed such contract on behalf of the second corporation, and to have represented it as agent to vote its stock in the first corporation in favor of the contract, cannot be joined as a party defendant, since lie is not shown to have any interest in tlie transaction, or to have taken any part therein except as an agent for one of the defendant corporations.</p>

<p>1. Building and Loan Associations—Membeks—Constkuctjve Notice of ByLaws.</p> <p>A stockholder in a building and loan association is bound to take notice of the law under which it is incorporated and of the provisions of its by-laws.</p> <p>2. Same—Contracts with Borrowing Stockholders—Limiting Number of i Payments.</p> <p>■ The essential principle of building and loan associations is that of mutuality between all the members, whether borrowers or nonborrowers; 'and such an association cannot contract with a borrowing member, to Whom it has advanced the par value of his shares, that his indebtedness shall be canceled on the payment of interest and stock dues for a certain number of months, regardless of whether such payments in fact mature his stock.</p>

The Cumberland Building & Loan Association and A. Moore Berry, as trustee, the appellants, on February 12, 1000, exhibited a bill of complaint against G. N. Sparks and Parmelia J. Sparks, his wife,… Held: and that the Cumberland Building & Loan Association might: he subrogated to all the rights and privileges of the beneficiaries under the last-mentioned mortgage, and that the property be sold to enforce the payment of the indebtedness evidenced by the Oliver mortgage.

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

This is an ancillary bill filed in the circuit court for the Western district of Virginia to wind up the affairs in that state of an insolvent building and loan association incorporated in Tennessee.

This is an appeal from an order of the circuit court granting a preliminary injunction in a suit in equity brought by the Cumberland Telephone & Telegraph Company against the Louisville Home Telephone Company for the purpose of restraining the latter company from erecting or maintaining telephone poles and wires along the south side of Park avenue and the north side of Hill street, in the city of Louisville, within the limits of the space occupied by the complainant. 110…

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Under the bill of unsecured judgment creditors, filed for the benefit of all creditors who might avail themselves of the benefits of the proceeding, a receiver was appointed in the court below, who took possession of the railway owned and operated by the Toledo, St. Louis & Kansas City Railroad Company. I11 the order directing the receiver to take possession and operate said railroad, it was, among other things, directed that the receiver, “out of the income” of the receivership and after paying his operating expenses and taxes due or to become due, should pay “all amounts due or to become due employes of said railroad company, all claims for labor and services, all claims for materials and supplies furnished said railroad company within six months prior thereto, and all balances due or to become due to other railroad or transportation companies on balance accruing out of the exchange of traffic accruing within six months prior hereto.” The appellant, by leave of the court, intervened in said cause and asserted claims aggregating some §16,000 against the railway company, and asked to have same paid as preferential claims incurred within six months prior to the receivership, and payable out of receiver’s income under the order above recited. Subsequently a mortgage foreclosure bill wras filed in the same court. The receivership under the creditors’ bill ivas <t fended to this foreclosure proceeding, and the two suits were consolidated. This intervening petition was answered, and the preferential character of the claims set up denied. The issues thus arising were referred to a special master, “to take the evidence and report the same to this court, with his conclusions of fact and law.” The special master reported against two items in the claim of appellant, which were as follows: (1) Rental of terminal property in St. Louis accruing' within six months prior to the receivership, $14,828.64. (2) Construction of tracks on rented terminals, furnishing rails, ties, and other materials, and for blocking and planking same at crossings, $2,042.04. The master reported that the first item was not a preferential claim, being for rentals of terminal property. He reported against the preferential character of the second item, as being for the cost of original construction of railway tracks upon the leased terminal property referred to above, and not repairs or other expenditure reasonably necessary for the maintenance of a completed railway. Exceptions filed to this report by the intervener were overruled, and the report confirmed, and the equitable relief sought denied.</p>

<p>1. Appeal—Review—Harmless Error.</p> <p>In an action on a number of notes given at the same time and for the same consideration, to all of which except the one last maturing the defense of limitation was pleaded, as well as other special defenses, where the jury returned a verdict for plaintiff as to the last note only, it cannot be presumed that any evidence admitted upon the other issues joined was prejudicial to plaintiff, even if its admission was error, since the jury must have found all such issues in his favor, and thereby negatived any inference that they were prejudiced against him by such evidence in considering the defense of limitation.</p> <p>2. Limitations—Removal of Bar—Payments.</p> <p>Payments made by the maker of notes to the payee after their maturity, in order to have the effect of postponing the running of limitation against such notes, must have been made under such circumstances as to> amount to án acknowledgment of the validity of the notes, from which a promise to pay them can be implied, and the essential fact upon that issue is the intention of the payor. The fact that the payee applied the ■ payments on any or all of the notes is of no probative value as evidence of the actual intention of the payor, unless it is further shown that such application was made by his direction or with his consent.</p> <p>8. Same—Acknowledgment of Debt—When Question fob Jury.</p> <p>Defendant executed his notes to plaintiff in payment for stock and bonds of a corporation, which he pledged as security for the notes. After the maturity of the notes the corporation was reorganized, and new stock and bonds issued, and defendant took up the old collateral, and substituted for it the bonds and stock issued by the new corporation in lieu thereof. In a subsequent action on the notes, defendant pleaded the statute of limitations, and also claimed and testified that they were to be payable only from the profits of the corporation accruing on the stock and bonds purchased. Held, that the question whether the substitution of coliateral after the maturity of the notes was such an acknowledgment of the debt as to remove the bar of limitation was one of fact, properly submitted to the jury.</p>

At Daw. On demurrer to complaint. Two grounds of demurrer are stated.. First. That it appears upon the face of the complaint that there is another action pending between the same parties for the same cause.' Second. That the complaint does not state facts sufficient to constitute a cause of action.

Uobert C. Geer, the plaintiff in error, brought liis action in the circuit court for the district of Colorado against school rtislriet No. 11 in the county oi Ouray, defendant in error, to recover, ns in indebitatus assumpsit, the sum of $10,000, alleged to have; been paid by him for 10 certain bonds issued by the officers of the school district July 1, 1892, and interest thereon.

<p>Railroads—Collision with Hand Car—Action for Injury.</p> <p>' The complaint in an action against a railroad company alleged that plaintiff and others were constructing a telegraph line along defendant’s right of way, and that through an arrangement made by the telegraph company, for whom they were working, defendant furnished them with a hand car to use in going to and from their work over defendant’s track; that when they were coming in from work one evening, and after they had entered the city and were approaching the station, the hand car was struck by a train coming from behind them, and thrown from the track, killing one of the men and injuring plaintiff; that the train was not on regular time, was running at a much greater siieed than permitted by the city ordinances, which were set out, and that it failed to give any of the station or crossing signals required by said ■ ordinances, by reason of which facts plaintiff and his companions, who were facing the other way, did not know of its approach until they were struck; also that the engineer could have seen them for half a mile before striking their car. Held, that such complaint was not subject to a general demurrer on the ground that it did not state facts constituting a cause of action.</p>

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

Verdict and judgment were rendered in favor of the plaintiff. The facts pertinent to the main issues are as follows: IV. II. Jameson carried on a produce business in the city of Nashville, Tenn., under the name of the Nashville Produce Company. One B. B. Bond did a warehouse business in the same building. Hurray & Cole were fire insurance agents in Nashville, representing several companies. Nestor & Co. were the local agents of the Queen Insurance Company.

<p>1. Insurance—Adjuster—Authority of.</p> <p>An adjuster sent out by insurance companies to determine the amount of and settle an alleged loss is authorized to exercise their option to pay the damages or to reconstruct or repair the building injured.</p> <p>2. Same—Option to Rebuild—When Exercised.</p> <p>The option to pay the damages for an alleged loss or to rebuild the injured structure secured in policies of insurance may be exercised by the companies at any time after the loss and before the expiration of the time prescribed for its 'exercise in the policies.</p> <p>3. Same—Plans and Specifications—Request for When Too Late.</p> <p>A request by an insurance company for plans and specifications of a burned building after it lias exercised its option not to rebuild, and after the amount of the loss has been fixed by the award of appraisers, is too late, and the failure of the insured to grant it is no defense to an action on the policy.</p> <p>4. Same—Facts and Decision.</p> <p>An insured building was burned November 26, 1896. The preliminary proofs were delivered December 20, IS96. The adjuster of the companies notified the insured on January 5, 1807, that they would not rebuild. The award of the appraisers under the policy fixing the amount of the loss was published June 5, 1897. On June 18, 1897, the companies requested plans and specifications of the burned building. Held, the demand came too late, a compliance with it would have been useless, and the refusal of the insured to grant it constituted no defense to actions upon the policies and the award.</p> <p>5. Contracts and Remedies Governed by Law of State Where Former are Made and Latter are Administered.</p> <p>Matters relating to the execution and validity of contracts are governed by the law of tlie place where they are made; matters relating to remedies by the law of the place where suit is brought. A policy of insurance covering property in Illinois made and delivered in Nebraska, and upon which action is brought in Nebraska, is subject to the law of Nebraska relative to interest upon tlie amount due thereon.1</p> <p>6. Insurance—Payment of Loss When Due.</p> <p>Where a policy provides that the loss shall be payable 60 days after tlie delivery of proofs, and does not make tlie award of appraisers a part of tlie proofs, the damages are due immediately after the filing'of an award subsequent to the expiration of the 60 days.</p> <p>(Syllabus by the Court.)</p>

This action was brought by Kate G. Sanders, administratrix of Martin J. Sanders, deceased, against the Louisville & Nashville Railroad Company, for negligently causing the death of the deceased. The declaration averred that Martin J. Sanders was unmarried and without issue, and left surviving him his father, Martin Sanders, his mother, one brother, and four sisters.

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

<p>1. Costs—Appellate Proceedings—Bight to Prosecute in Forma Pauperis.</p> <p>Act July 20, 1892 (27 Stat. 252), which provides that any citizen of the . United States entitled to commence any suit or action in any court of the United States “may commence and prosecute to conclusion” any such suit or action without being required to prepay fees or costs, or to give security therefor, upon filing an affidavit of poverty, and which also provides that he may avoid a demand for fees or security pending an action by a like affidavit, applies to proceedings on appeal or writ of error, which are within its equity, and not excluded by its letter.</p> <p>3. Same—Affidavit of Poverty—Sufficiency.</p> <p>An affidavit of poverty made by a plaintiff who sues, as administratrix of her deceased husband, to recover damages for his wrongful death, under a state statute which gives the right of action in favor of the widow and children of the deceased, should show that neither the estate nor the beneficiaries of the action are able to prepay or secure the costs.</p> <p>3. Appeal—Printing Briefs.</p> <p>A circuit court of appeals will not suspend the rule requiring printed briefs in favor of an appellant prosecuting the appeal in forma pauperis</p>

In Bankruptcy. On petition by trustee asking order directing the treasurer of the St. Louis Stock Exchange to deliver to him the net proceeds realized from sale of the seats of the bankrupts in the exchange.

In Bankruptcy. On motion to confirm report of referee recommending that the bankrupt’s petition for a discharge be denied, and upon exceptions to the report. The referee finds that the third, fourth, and sixth specifications, filed by the objeding creditor, have been sustained.

<p>Petition for Revision of Proceedings and Appeal from the District Court of the United States for the District of Massachusetts, in Bankruptcy.</p>

Petition for Revision of Proceedings of the District Court of the United States for'the AVestern District of Virginia, in Bankruptcy.

<p>1. Counterfeiting—Similitude—Worthless Bank Bills.</p> <p>Bills issued by a bank for circulation are not obligations or securities “engraved and printed after the similitude of an obligation and security issued under the authority of the United States,” within the meaning of Rev. St. § 5430, since they do not purport to be obligations or securities of the United States, and an indictment for a violation of said section does not charge an offense where it shows that the instruments referred to are such bank bills.</p> <p>2. Criminal Law — Removal of Prisoner to Another District for Trial.</p> <p>A federal court will no.t order a person removed to another district for trial on an indictment which does not charge facts constituting an offense, although the prisoner does not resist the removal, or even if he consents thereto.</p>

<p>1. National Banks—Offenses by Officers—Intent as Element.</p> <p>Under Rev. St. § 5209, which makes it a criminal offense for an officer or agent of a national bank to do either of certain acts therein enumerated, “will! intent in either case to injure or defraud the association,” etc., such intent is an essential element of every offense therein specified, which must be charged in the indictment and proved.</p> <p>2. Same—Prosecution for Embezzlement—Instructions.</p> <p>Where the court, in a prosecution under Rev. St. § 5209, for embezzlement by an officer of a national bank, refused to charge, as requested, that the defendant could not be convicted unless the jury found that the acts of embezzlement were committed with intent to injure or defraud the hank, as charged in the indictment, but charged that the averment of such intent was surplusage, such action was reversible error, notwithstanding it defined embezzlement in the charge as the fraudulent appropriation by defendant of the funds of the bank to his own use.</p>

<p>In Equity. Suit for unfair competition in trade. On final hearing.</p>

In Equity. Suit for infringement of patents. On exceptions to master's report awarding a decree of $4,023.05 as damages against the defendant corporation and Louis A. Jackson. The corporation alone excepts. The interlocutory decree was granted after an ex parte hearing, no one appearing for the defendants. 98 Fed. 895. Subsequently upon full hearing and argument in another action both of the patents involved were held to be invalid.

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

<p>In Equity. 8uit for infringement of patents. On final hearing!</p>

<p>1. Patents—Invention—New Combination of Old Elements.</p> <p>A combination of old elements, to render them adaptable to a new use, may involve invention, and sustain a patent, wberé the combination possesses utility, and produces a new and useful result in tbe art to which it is applied, and was not obvious to one skilled in; such art.</p> <p>2. Same—Infringement—Ore Concentration Tables. \</p> <p>The Wilfley xiatent, No. 590,675, for an improvement isp. ore coneen- ■ trators, discloses invention, and is valid, and entitled to k, liberal construction. Claims 1, 2, and 7, covering a concentrating table, construed, and held infringed.</p>

<p>Carriers—Insufficient Accommodations of Steamship—Action fob Death of Rassengbh.</p> <p>Libelant’s intestate purchased tickets for passage, meals, and berths for himself, wife, and daughter on respondent’s steamship from a lake port in Canada. On presenting them, he was told that berths could not be furnished, not having been reserved, and the vessel having an extraordinary number of passengers, owing to its being the close of the summer season, when an unusual number of passengers were returning-from the lake resorts. He insisted on going, and was then told that if he would accept a cot or mattress for himself, his wife and daughter would be furnished with a berth. He accepted the offer, and the officers procured a number of mattresses from a dealer, one of which he took, and on which he slept. On reaching port the next morning, he was taken with a chill, which developed into pneumonia, from which he died a few days later. Suit was brought under the Canadian statute giving-a right of action for wrongful death, it being alleged the death was caused by the dampness of the mattress; no claim being made on the ground of breach of contract. Held that, under the facts shown, respondent was not chargeable with negligence, the officers of the vessel having-done all that was reasonably possible to meet an extraordinary emergency, but that in accepting the accommodations offered, with knowledge of tlie conditions existing, deceased assumed whatever risk was involved.</p>

<p>In Admiralty. label by seamen to recover damages for illegal imprisonment by the master.</p>

This is a suit by intervention for damages for personal injuries. Tho original suit was by the State Trust Company against the Kansas City, Pittsburg & Gulf Railroad Company, Missouri, Kansas & Texas Trust Company, Texarkana & Ft. Smith Railway Company, and Kansas City, Shreveport & Gulf Railway Company. The court appointed R. A. Greer Receiver of the Texarkana & Ft. Smith Railway Company. He resigned, afid S. W. Fordyee and Webster Withers were appointed in his place.

<p>On Motion for Inspection of Books and Papers.</p>

<p>1. Life Insurance—Action oír Policy—Special Limitation.</p> <p>Whether the limitation contained in a life insurance policy requiring an action thereon to be commenced within six months after the death of the insured runs from the time of such death, or from the time the right of action accrued under other provisions of the policy, quaere.1</p> <p>2. Same—Commencement of Action—Mississippi Statute.</p> <p>Within the time limited by a policy of life insurance after the death of the insured a declaration was filed in an action thereon against the company. The statute of Mississippi, in which state the action was brought, provides that “an action shall for all purposes be considered to have been commenced and to be pending from the time of filing of the " V declaration if a summons sliall be issued thereon for the defendant.” With the declaration was filed a waiver of summons and an entry of ' ‘' -appearance for defendant, signed by an agent duly authorized to accept ‘ ' and acknowledge service of process. Subsequently, but after the expira- ‘ tion of the period of limitation, a summons was issued and served upon the same agent, who, so far as appeared, was the only person on whom it . could have been served, and to such service defendant appeared. Held, that the action was commenced, within the meaning of the statute, on - the-day the declaration was filed.</p> <p>8.- Same—Issue as to Suicide—Direction op Verdict.</p> <p>Where, upon the question of fact whether an insured committed sui- , cide, while the evidence was quite conclusive that he shot himself, there was a conflict in the evidence directed to the question whether the shooting was intentional or accidental, the action of the trial court in refusing to direct a verdict for defendant on the issue will not be reversed by an ■. appellate court.</p> <p>4. Same—Defense op Suicide—Burden of Proof.</p> <p>The burden rests upon a life insurance company to establish a defense of suicide pleaded in an action on the policy. 2</p>

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

Prior to March 2!), 1895, tile Martin-Perrin Mercantile Company, hereinafter called the “Mercantile Company,” was doing an extensive business in Kansas City. Mo. Held: $150,000 of it by’K. I.. Martin, its president; $100,000 of it by O. G. Perrin; and $50,000 of it by Tilomas K. Gaines; these three men constituting tiie hoard of directors.

<p>•Bankruptcy—Validity oij Lien—Conditional Salk under Kentucky StatUT1‘j.</p> <p>According to tlie soitlwi law of Kentucky, a conditional sale of personal property under a contract by which (ho seller retains the title until payment of the price is, in effect, an absolute sale, with a mortgage back, and comes within Ky. St. § 496, which provides that no mortgage shall be valid against, a purchaser for a valuable consideration, without notice thereof, or against creditors, until acknowledged or proved and recorded. As construed by tlie court of appeals of tlie state, such section applies, ns to creditors, only in favor of those whoso debts were subsequently contracted, without notice of tlie lien, and who have, by legal proceedings or otherwise, acquired some hold or lien upon tlie property. I/efV, that the lien given by such a conditional contract of sale, unrecorded, was valid, as against a trustee in bankruptcy of the purchaser, where the creditors, although tlieir claims arose subsequent to the sale, were all general creditors, none of whom had acquired any lien upon the property prior to the bankruptcy which would" have entitled them to contes L such lien.</p>

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

<p>In Admiralty. Action for loss of cargo.</p>

These are two cases, one at law and tlie other in equity, which in the main involve the same questions, and have been argued and briefed together. The controversy arises out of the following facts: On July 1, 18(19, Washington comity, in the state of Nebraska, executed and delivered to the Sioux City & Pacific Railroad Company 149 obligations, in tlie following form: “State of Nebraska.

<p>1. Mineral Lands—Validity of Patent.</p> <p>A patent for mineral lands, which has been in existence for 16 years, and which protects rights that have been continuously exercised by the patentee and his predecessors in interest for nearly 50 years, will not be declared void as to any portion of the granted premises solely for the reason that upon its face it purports to be based on a single mining location, and conveys more than may lawfully bo included in one location, when in fací the claims were several, and might have been united in a single patent upon a proper presentation of the facts.</p> <p>2. Same—Prksumi’tion.</p> <p>Where there might have been circumstances which, under existing laws, would have authorized the land department to- include in a patent for mining ground all the ground therein described, it will be presumed in support of the patent, when collaterally attacked, that such circumstances existed.</p> <p>8. Same—Right to Attack Patent for Fraud—Subsequent Location.</p> <p>A suit to set aside a patent for mineral lands on the ground of fraud practiced on the land department cannot be maintained by a private individual, who had at the time no claim upon any of the lands, but made a location thereon subsequently, sncli ground of invalidity being available only to the United States.</p> <p>4. Sasie—Grounds for Cancellation of Patent—Fraud.</p> <p>Allegations in a bill for the cancellation of a patent for mineral lands that tlie several claims embraced therein were falsely and fraudulently represented by defendant to the land department to be quartz claims, when they were, in fact, placer claims, afford no ground for the cancellation of the patent, where the fact that they were'placer claims would not have precluded tlie owner from obtaining a single patent therefor, and it is not shown that tlie government was in any way injured by the false representation.1</p> <p>5. Jurisdiction of Federal Courts—Federal Question—Allegations in Pleadings.</p> <p>A complainant cannot invoke the jurisdiction of a federal court by setting forth the contention which will be made by defendant in answering the bill upon which a federal question will arise.2 *</p>

<p>Appeal from the Circuit Court of the United States for the District oí Montana.</p> <p>This was a suit in equity, brought by the appellees, citizens of Montana, to enforce the specific performance of a contract which they had made with one of the appellants, the Home Land & Cattle Company, a corporation, of the state of Missouri, which will be called herein the “Cattle Company.” The contract was made at Chicago on May 27, .1897. It provided for the sale and delivery of a herd of cattle belonging to the Cattle Company, which, by the terms of the contract were said to consist of 30,000 head, more or (ess, of stock cattle and beef cattle, ranging in Valley, Dawson, and Ouster counties, Mont. The contract provided that the cattle should he gathered by the (Tittle Company and delivered to the appellees at certain designated stock yards in Montana during the regular round-up season of .1897. no cattle to be tendered or accepted later than November 1, 1897. All stock cattle were to be accepted by the appellees whenever tendered prior to November 1, 1897, in not less Hum train load lots. All beef cattle were to lxi delivered and counted when marketable for beef in the opinion of the appellees. The contract price to be paid was *25 per head for every head delivered, payable upon the delivery. There was a special guaranty in the ninth clause of the contract that not less than 9,000 head of the cattle delivered during the season should he beef cattle of certain designated grades, and that in case of the failure of the Gallic Company to deliver that number of beef caiile it would pay to the appellees "the sum of $20 in cash for each and every head less than 9,000 head of such cattle so delivered.” There was a further provision that the appellees upon theii; part agreed to purchase of Hie On tile Company 500 head of saddle and work horses, to be selected out of its band of horses, at $20 per head, at the end of the round-up season of 1897; but (here was no covenant upon the part of the company to sell the said horses. 'Flu4 interest of Hie (Tattle Company in the contract was assigned to the National Rank of Commerce of St. Louis, and that corporation was made a party defendant, to the bill. The bill alleged the execution of the contract and the performance thereof on the part of the appellees, and hut a partial performance on the part of the appellants. Upon issue joined, by consent of the parties, the cause was referred to the master in chancery to hear the testimony and report the same, together with his conclusions of fact and law, to the court. Bis findings, which were adopted by the court in rendering a final decree, embodied substantially the following facts: That during the round-up season of 1897 there were delivered and accepted hy the" appellees from the Cattle Company in all about 1.0,000. head of cattle, comprising both stock and beef cattle, and, in addition thereto, the appellees received from the board of stock commissioners of the state of Montana the proceeds of the sales of 148 stray cattle belonging to the Home Land & Cattle Company. That of the cattle so delivered, 7,135 -were beef cattle, such as were stipulated for in the guaranty of the ninth clause of the contract, and 1,865 of the 9,000 head of beef cattle so contracted for were not delivered. That upon October 18, 1897, the Cattle Company notified the appellees that it would deliver to them on October 21, 820 head of beef cattle, 631 head of stock cattle, and 500 head of horses; and upon October 21 and 22, 1897, the Cattle Company did deliver to the appellees 820 head of beef cattle and 113 head of stock cattle, the price of which, under the contract, was $23,325. That the Cattle Company was then prepared to make further delivery to the appellees of the 457 stock cattle and 500 head of horses, but refused to deliver the same, or to make any further delivery, unless the appellees would pay the $23,325 due upon the delivery just made. The appellees refused to pay said sum, but offered to pay for said 457 head of cattle and said horses upon their delivery, provided that the appellants, or either of them, would pay the appellees the amount due for shortage in the number of beef cattle called for under the guaranty of the contract at the specified price of $20 per head, and the appellees thereupon presented to the appellants a statement and tendered payment of $9,675, which they claimed would be the balance due the appellants for all the cattle delivered and cattle and horses to be delivered after deducting- $37,900 for the shortage upon the beef cattle. This offer the appellants refused to accept, and refused to deliver the 457 head of stock cattle or the horses. That on October 22, 1897, the Cattle Company had finished its round-up for that season, and had made no preparations for, and did not intend to make, further delivery under said contract, and did not have on its range to exceed 300 head of beef cattle, and the appellants then knew that the Cattle Company could not deliver the remainder of the 9,000 head of beef cattle. It was further found that there -was an increase in the value of cattle during the season of 1897 of $5 per head. It was found by the court that the appellees depended upon the delivery of the cattle mentioned in the contract to furnish cattle under contracts which they had to the government Indian reservations, and that they had prepared for and made provision to winter at their ranches in Montana cattle to fill such contracts, and depended upon the cattle contracted for to fill the same. The court thereupon decreed the specific performance of the contract, so far as it related to the 457 head of stock cattle, and ordered that the same be turned over to the appellees without further payment to the appellants. 105 Fed. 202.</p>

This is an appeal from the judgment of the circuit court (84 Fed. 228) dismissing a bill filed therein to review a pro confesso decree of the same court entered December 22, 1S97, for alleged errors appearing upon the face of the record.

<p>'■ In Error to the Circuit Court of the United States for the Northern. District of New 'York.</p> <p>•This cause comes here upon a writ of error by plaintiffs below to review a judgment of the circuit court, Northern district of New York, in favor of defendant below, after trial before the court without a jury. 103 Fed. 62. The action was brought to recover the additional liability of a stockholder of a defunct Western farm mortgage trust company under the laws of Kansas, and was disposed of by the court below on the ground that suit was not begun against defendant, who had been at all times a resident of this state, until more than three years after cause of action accrued.</p>

<p>1. Eminent Domain—Bigot to Maintain Condemnation Proceedings—Local . Telegraph Company.</p> <p>The fact that a corporation, duly organized under the laws of the state to construct and maintain a telegraph line, is subordinate-or auxiliary' to a corporation of another state which owns the greater part of its stock and controls its management, or that its stock has not been paid up, does not affect its right to maintain proceedings to condemn right of way for its line, under the statutes.of Idaho. .Where the plaintiff shows that it is a corporation de facto' of the state, the further right to contest its authority to condemn land or to prosecute the objects of its organization belongs tó the state aloné.</p> <p>2. Same—Idaho Statutes—Use of Railroad Right of Way for Telegraph Line.</p> <p>The general rule of law that a corporation having general statutory ',:T’authority-Jb condemn property for a public use maycondemn for such •'•*üis’é' .property which is- already devoted to another public use, .-where the \'--, ;séóohd use Will not materially interfere.'with the first, is not changed as -:“:”td'ltelegraph‘ companies by Rev. St. Idaho, §§ 5210, 5213, tlio first of which gives such companies the right to exercise the power of eminent domain, and'the second of which provides that before property can be taken for a public use it must be shown that the taking is necessary to such use. and, if already appropriated to some public use. that the second use “is a more necessary public use.” Such statute by implication authorizes a second condemnation, and under it a telegraph company may condemn right of way for its line over the right_ of way of a railroad, where the court finds that it is necessary, that it" will not interfere with the use of the property for the purposes of the railroad, and that the second use is more necessary than the first.</p> <p>S. Same—Judgment of Condemnation—Sufficiency.</p> <p>A judgment awarding to a telegraph company right of way for its line over the right of way of a railroad, which designates the height of the poles, the manner of their erection, and the minimum distance they shall be placed from the railroad track, and requires the telegraph company on notice to remove, at its own expense, the poles from any portion of the right of way which may be needed by the railroad company, is not so indefinite as to require revision by an appellate court, and especially where there is no assignment of error directing attention to any particular defect therein.</p> <p>4. Same—Adequacy of Damages Awarded.</p> <p>An award of $500 damages to a railroad company as compensation for right of way for the construction of a telegraph line over its own right of way for a distance of 200 miles, where the court found that such line would not interfere with the operation of its road, and required the telegraph company to remove any of its polos which should at any time so interfere, is not so inadequate that it will be disturbed by an appellate court on a writ of orror.</p>

Iii Error to the Circuit Court of the United States for the District of Utah. A. H. Arnett and J. C. Easton, the defendants in error, brought this action against the Southern Pacific Company, the plaintiff in error, to recover damages for injuries said, to have been sustained by certain cattle belonging to them, while they were being transported by the defendant company over its railroad from Caliente, in southern California, to Ogden, in th.e state of Utah.

George H. King brought an action of ejectment in the circuit court of the United States for the district of South Dakota against M. McAndrews, Charles II. Pease, L. C. Rush, and William Lawson to recover possession of lots 8 and 4 and the S. E. % of the S. W. 14 of section 10, in township 104, of range 71 W., of the fifth principal meridian.

<p>Damages—Breach of Contract for Delivery of Cotton—Time of Breach. ’</p> <p>At various times during about two months, ’ ending in December, plaintiffs made contracts for the purchase of cotton from defendant. Of some of the purchases, all was delivered and paid for; of others, part only; and still others, none was delivered. Plaintiffs kept urging delivery of the remainder, and not until January 4th did defendant refuse to make such delivery. Plaintiffs then purchased the amount of the deficiency at the market price, which was an advance over the prices to be paid under the contracts. Held, that the breach of the contracts, for the purpose of fixing the measure of damages, occurred on January 4th, and plaintiffs were entitled to recover the amount then paid in excess of • the contract price.</p>

<p>Railroads—Accident at Crossing—Tennessee Statute.</p> <p>Shannon’s Code Tenn. §§> 1574-1576, require every railroad companj to keep some person on the lookout upon all locomotives, and when any, person, animal, or other obstruction appears on the road to give the alarm, put down the brakes, and use every possible means to stop the train and prevent an accident. They further provide that if it fails to take such precautions it shall be responsible for all damages resulting from any accident or collision that may occur, but that if the precautions are taken it shall not be liable, and place the burden of proof upon the company. ■ As construed by the supreme court of the state, such statute makes a company absolutely liable unless It shows a compliance therewith, and contributory negligence is not a defense, but goes only in mitigation of damages, flie court also holds, however, that if a person seen on the track gets off, and out of reach of the train, while under observa- • tion, the company is not bound to exercise the precautions mentioned, although such person may afterward get back to the track and be injured. Held, that the latter rule only applied where such person had got far enough from the track, and under such circumstances, as to reasonably indicate his safety; and that where a person about to cross a track on horseback, on seeing an approaching train, attempted to turn his horse back, but the horse became frightened and unmanageable, the question whether the failure of the engineer to make any attempt to stop the train rendered the company liable for the death of such person was one of fact for the jury, there being evidence tending 'to show that such death was caused by the horse crowding so close to the train that deceased was struck by a passing car, and that when he was upon the track, and first seen by the engineer, the train was at such a distance that the speed might have been slackened, if not entirely stopped, before reaching the crossing, 1</p>

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

This ease was brought to recover for the alleged negligence of the railroad company in causing the death of the plaintiff’s intestate, .Tames T. Cowan.

<p>Ou Plaintiff's Motion to "Strike Out Defendant’s Picas.</p>

<p>Bankruptcy—Jurisdiction of District Court—Suits by or against Trustee.</p> <p>The bankrupt act does not confer upon .a district court of the United States, as a court of bankruptcy, jurisdiction of a controversy between a trustee and a mortgagee of the bankrupt to determine the validity of the mortgage, unless with the consent of such mortgagee.</p>

On exceptions to decision of referee, rejecting claim of F. W. H. Fake as a creditor, and finding him to be a partner of the bankrupt.

<p>Bankruptcy—Goods Obtained by False Representations—Right oe Seller to Reclaim.</p> <p>A merchant órdered goods from Paris, which were skipped to him on credit, in reliance on the report of a mercantile agency, based on * a statement made by the purchaser which was false and misleading. The goods were received shortly before the purchaser’s bankruptcy, and he refused to receive the same, and attempted to return them. Reid, that the sellers were entitled to rescind the sale for fraud, and recover the goods or their proceeds from the trustee of the bankrupt, and that such right, under the circumstances shown, was not lost by the fact that they had not consented to the return of the goods when offered.</p>

<p>1. Chinese Exclusion—Pkoceedings for Deportation—Burden of Proof.</p> <p>Tiie provision of section 3 of the Chinese exclusion act of May 5, 1802 (27 Stat. 25), placing the burden ol’ proof upon a Clónese person or person of Chinese descent, arrested under the provisions of the act, to establish his right to remain in the United States, is within the power of congress, and valid, and, unless such right affirmatively appears from the evidence, it is the duty of the court to order the defendant deported.</p> <p>2. Same—Claim of Nativity—Evidence Considered.</p> <p>Evidence held insufficient to sustain the claim of a person of the Chinese race, arrested for being unlawfully within the territory of Hawaii, that he was a native of such islands.1</p>

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

<p>Patents—Invention—Bowling Apparatus.</p> <p>The Reisky patent, No. 599,447, for an improvement in bowling apparatus, which consists of a runway or trough for the return of the balls, so constructed that the balls roll rapidly down an incline until near the players’ end of the alley, and then up an ascending incline, which gradually checks their momentum, breaks the force of their impact, and prevents their injury, while apparently embodying only an obvious mechanical expedient, must be conceded patentable invention, in view of evidence showing that for many years mechanics had been engaged in attempts to improve the old-style runways to obviate the same defect, but that the patentee was the first to use the double incline for the purpose, and that his invention at once came into general use.</p>

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

<p>% Patents—Validity—Usefulness of Invention.</p> <p>The degree of utility of a patented article does not affect the question of patentability, nor does the length of time it will last and continue useful, but, if it is useful at all, that is sufficient to sustain the patent.</p> <p>2. Same—Action at Law for Infringement—Evidence of Usefulness of Invention.</p> <p>In an action at law for the infringement of a patent, upon an issue as to the usefulness of the patented article as affecting the validity of the patent, the jury may consider the fact that it has boon used by defendant if they find that he has infringed.</p> <p>3. Same—Construction—Support por Artificial Teetii.</p> <p>The Low patent, No. 238,940, for improvements in dentistry, relating to a method of inserting and supporting artificial teeth, construed in a charge to the jury in an action at law for infringement.</p> <p>4 Same—Infringement—Measure of Damages.</p> <p>In fixing the damages for infringement of a patent, where it is shown that the patentee had an established license fee for practicing the invention, it will be taken as fixing the measure of damages, notwithstanding he may have accepted a smaller sum in settlement with licensees who were in arrears, or made a reduction therefrom, where license fees for a long term wore paid in advance.</p>

In Equity. Suit for infringement of patent. On final hearing. The following cuts and extracts from the specification illustrate the Boch insulator, and the process of its manufacture: “In the accompanying drawings, Fig. 1 is a sectional view illustrating one step in the manufacture of my improved insulator. Fig. 2 is a sectional view of a finished insulator.

<p>1. Seamen—Settlement on Disoharoe—Conclusiveness ov Statutory Release.</p> <p>Under the provisions of Rev. St. §§ 4549, 4552, requiring seamen to be discharged and paid their wages before a shipping commissioner, in whose presence a mutual release shall be signed and attested by him, if the parties agree upon a settlement, and further providing that “such release shall operate as a mutual discharge and settlement of all demands for wages between the parties thereto on account of wages in. respect of the past voyage or engagement,” a release so executed and attested without fraud or coercion is conclusive on the parties.</p> <p>3. Same.</p> <p>The purpose of the statute in requiring settlements with seamen to be made before a shipping commissioner is to guard against their being-overreached by the master, by placing the parties on an equal footing; and the provision of Rev. St. § 4552, that on the completion of any discharge and settlement “the master or owner and each seaman respectively, in the presence of the shipping commissioner shall sign a mutual release, * * * and the shipping commissioner shall also sign and attest it,” does not require that all the parties shall appear before the commissioner and execute such release at the same time; but a master may leave with a commissioner a proposition for settlement, together with the wages due thereunder, and a release executed by him before the commissioner, and upon the acceptance of the money by the seamen, and the signing of the release by them, and its attestation by the commissioner, such release becomes effective, under the statute.</p> <p>8. Same—Coercion—Facts Considered.</p> <p>Seamen signed for service on a vessel employed as a government transport for a voyage to Manila and such other ports as the master might direct, and return to the Pacific Coast for discharge; the voyage not to exceed six months. At the expiration of the six months the vessel was at Manila, and they demanded their payment and discharge. Under orders of the military governor, their demand was refused, and on their refusal to serve longer they were arrested and confined by the military authorities, and subsequently returned to San Francisco by another vessel. In the meantime the transport had arrived and departed on another voyage; the master leaving with a shipping commissioner the amount of their wages to the time they were taken from the vessel, together with a release executed by him. On their arrival they demanded wages up to that time. They were told by the commissioner (in a joking way, as he testified) that they were lucky to get anything, and that they were not ordered shot at Manila. They were without money, and finally accepted the sum left with the commissioner, and executed the release. Held, that there was nothing in such circumstances amounting to legal duress or coercion, and that they were concluded by the release.</p>

<p>Shipping—Loss of Cargo—Negligent Unloading of Lighter.</p> <p>A lighter was loaded with 100 barrels of cement'in the hold and a large number of rolls of bagging, weighing 253 tons, piled upon the deck. It was the duty of respondent to transfer the load to a steamer; and when a portion of the bagging, had been unloaded, all of which was taken from the side next the steamer, the lighter listed to the other side, and a portion of the bagging was thrown overboard, and lost or damaged. The load was unusual in weight and height, but not to an extent to endanger it if properly handled. It was properly loaded, and the lighter had been brought with it a considerable distance in safety. Held, that the fact of its unusual height required that in unloading the removal should be distributed as evenly as possible over the whole load, which was also shown to be the usual way, and that the negligent manner of unloading was the cause of the vessel’s listing, and rendered respondent liable for the damage.</p>

<p>1. Shipping—Charter—Prior Representations.</p> <p>Representations made by a shipowner prior to a charter respecting the speed of his vessel, but which are not embodied in the charter, are superseded by that instrument, in the absence of fraud or mutual mistake;</p> <p>2. Same—Breach of Charter—Evidence Considered.</p> <p>Evidence considered, and held insufficient to sustain the claim of a charterer that the owner failed to maintain the vessel’s machinery in proper condition, as required by the charter, resulting in loss of speed, and consequent lengthening of the voyage.</p> <p>3. Same—Obligations of Owner under Charter—Furnishing Electric Lights for Discharge of Inflammable Cargo.</p> <p>It is doubtful whether a charterer can require the shipowner to furnish electric lights to facilitate the discharge of a cargo which by reason of its inflammable nature cannot be handled safely by the use of lamps, and, at any rate, a claim for damages for delay which might have been thereby prevented will not be allowed where no demand was made on the master to furnish such lights.</p>

This cause comes here upon writ of error to review a judgment in favor of the defendant in error, who was plaintiff below, for $5,074.77 damages for personal injuries.

The following is the report of Hon. E. B. KRUTTSCHNITT, Special Master in Chancery: To the Honorable the Judges of said Court: By order signed in this cause on the Gist day of October, 1899, the… Held: through Judge Shelby as its organ, that contracts of this character are not usurious, if valid under the laws of the place of performance. I therefore oondude that none of the contracts of this association with its borrowing stockholders are tainted with usury.

<p>1. Municipal Corporations—Special Assessments—Constitutionality.</p> <p>A city charter which authorizes the council, in making a public improvement, to create an improvement district which shall include only such property as will be benefited by the improvement, and to assess all or a portion of the cost of such improvement upon the property within the district in proportion to the area of the lots, and which also provides for a hearing to be given upon notice to consider objections to the assessment, is not in violation of the constitution of the United States, as depriving owners of their property without due process of law, by requiring the assessment to be made without reference to benefits.</p> <p>2. Same—Construction of Charter—Creation of Improvement Districts.</p> <p>Under the charter of the city of Billings, Mont., as amended in 1893, authorizing the council to “create special improvement districts within the city, designating the same by number, and to change the boundaries of said district from time to time,” the city has power to create districts commensurate with the improvement to be made; and, where the improvement will benefit the entire city, it may include the entire city in a single district, to be assessed for the cost of such improvement.</p> <p>8. Same—Implied Powers—Extension of Drains beyond City Limits.</p> <p>A city which is authorized by its charter to construct sewers and drains, and to do all other acts which may be necessary for the promotion of health and to prevent the spread of contagious diseases within the city, has power, in constructing a general system of drainage, to extend the same to a proper outlet without the limits of the city.</p> <p>4. Same—Objections to Special Assessments—Waiver. ,</p> <p>Where by the charter of a city the authority to levy assessments for improvements was limited to land which had been subdivided into lots and blocks, and also provided for a hearing at which objections to any improvement or assessment should be heard and considered, a lot owner cannot object to the validity of an assessment on his property because ) unplatted property was not assessed, when he made no objection on that ground before the assessment was made.</p> <p>5. Statutes—Amendatory Acts—Validity and Effect.</p> <p>Under the constitution of Montana, and Pol. Code, §" 292, relating to the effect of amendments to statutes, an amendatory statute will be upheld, though it purports to amend a statute which had previously been amended, and where it covers the entire subject-matter the previous amendment is repealed by implication, if not in terms. 1</p> <p>Ross, Circuit Judge, dissenting.</p>

In Bankruptcy. On certificate of referee with respect to ruling on motion of Barbara Novak for leave to redeem'from-sale of realty by trustee.

<p>In Bankruptcy. Hearing on involuntary petition.</p>

<p>1. Bankruptcy—Equity Powers of Court—Adjustment of Equities between Creditors.</p> <p>A district court sitting in bankruptcy can exercise the full powers of a court of equity for the ascertainment and enforcement of the rights and equities of the various parties interested in the bankrupt estate, and the adjustment of equities between creditors arising out 'of the provisions of the bankruptcy act is peculiarly within the rule requiring the exercise of such powers.</p> <p>Same—Surrender of Preferences.</p> <p>A bank held notes of a corporation, indorsed before delivery by a partnership, which thereby became liable as a joint maker. A short time before the corporation became bankrupt, and while Insolvent, it made a payment on the notes, which was received by the hank in the nsual course of business, and without notice, actual or constructive, of the corporation’s insolvency. After the bankruptcy the indorser paid - the remainder due on the notes. Both the hank and the partnership held other large claims against the bankrupt estate. Held, that if the hank was required, under the provisions of the bankruptcy act, to surrender the payment received from the corporation as a condition precedent to proving its remaining claims against the estate, the effect would be to leave the notes to that extent unpaid, and a subsisting liability not only of the estate, hut also, in equity, of the partnership, as indorser, and that the court of bankruptcy, in the exercise of its power to adjust the equities between such creditors, would transfer the obligation to surrender the amount of such payment from the bank to the partnersiiip, as a condition to the proving of its remaining claims; the circumstances of the particular case being such that the rights of general creditors would not be affected thereby.</p> <p>8. Same—Proof of Ci.aim by Indorsee.</p> <p>An indorser of notes of a bankrupt given to a bank, who pays the same after the bankruptcy, thereby extinguishing the claim of the bank as a creditor of the estate, cannot be required, as a condition precedent to the proving of his claim on such notes, to surrender to the trustee an amount paid by the bankrupt while insolvent, and a short time before the bankruptcy, in full satisfaction of other notes given to the hank as a separate transaction, although the claimant was also indorser on such notes, where the payment was received under such circumstances that it could not be recovered from the bank.</p>

<p>1. United Statiís—Action on Bond of Officer—Defenses by Sureties.</p> <p>It is not a ground of defense by the sureties on the bond of a collector of internal revenue to an action for the recovery of the amount of defalcations of the collector that officers of the treasury department failed to notify the sureties of such defalcations until long after they acquired knowledge of them, and after the collector had become insolvent, both because Act Aug. 8, ,1888 (25 Stat. 387), while making it the duty of the department to give such notice at once, expressly provides that a failure to do so shall not discharge the sureties, and for the further reason that under the general principles of law the government is not responsible to others for the laches or wrongful acts of its officers.</p> <p>■2. Same—Collector of Internal Revenue—Liability on Official Bond.</p> <p>A collector of internal revenue is liable on his bond for any failure to account for public money or property in his hands, from whatever cause, unless it be the act of God or the public enemy; and it is no defense to an action on his bond, expressly conditioned, In accordance with the statute, for the faithful performance of the duties of the office by himself and Ills deputies, that the money sued for was embezzled hy a deputy without the collector’s fault or negligence.</p> <p>3. Same—Action on Collector’s Bond—Evidence.</p> <p>The admission in evidence against a collector of internal revenue and the sureties on his bond of a statement of his accounts made up by a deputy as acting collector under an appointment made after .the col-i lector’s suspension, even if erroneous, was harmless error, where the correctness of such accounts was proved by independent testimony, which was uncontradicted.</p> <p>4. Same.</p> <p>A judgment against a collector of internal revenue and the sureties on his bond, conditioned that he would faithfully execute and discharge all the duties of his office according to law, account for and pay over all moneys which might come into his hands, and be responsible for the. acts of his deputies, is justifiedo hy evidence showing that he received certain stamps from the government, for which he failed to account; and the measure of recovery is the face value of such stamps, as charged to him in his account. Such an action is not one for the conversion of property, but one for a breach of official duty, and is governed hy the terms and conditions of the bond and the statutes which prescribe such duty; and the government is not required to prove that the stamps unaccounted for were sold, and the money received therefor, even though such fact is unnecessarily alleged in the complaint.</p> <p>5. Same—Effect of State Statutes.</p> <p>A state statute (Code Civ. Proc. Cal. § 1502) providing that on the death of a defendant in a pending action the plaintiff must present his claim to the executor or administrator'for allowance or rejection, and that no recovery shall he had in the action without proof of such presentation, is not made applicable hy the conformity act to an action hy the United States in a federal court on the bond of an officer, since laches is not imputable to the government, nor can its rights in a governmental matter, prescribed by its own statutes, be affected hy state enactments.</p> <p>6. Same—Bond of Public Officer—Effect of Surety’s Death.</p> <p>The death of a surety on the bond of an officer of the United States does not relieve; his estate from liability for a breach of the condition s of the bond occurring subsequent to his death, hut during the term of office for which the bond was given, where it in terms binds the obligors and their several heirs, executors, and administrators.</p> <p>7. Same—Action on Officer’s Bond—Dismissal as to One Defendant.</p> <p>The liability of the obligors in the bond of a federal officer is joint and several, and the erroneous dismissal hy the court of an action on such bond, as against the executors of a deceased surety, does not invalidate a judgment subsequently rendered therein against each of the other sureties.</p>

<p>1. Chinese Exclusion—Privilege of Transit—Act of 1888.</p> <p>Section 8 of the Chinese exclusion act of September 13, 1888 (25 Stat. 478), which relates entirely to the privilege of transit across the territory of the United States in the course of a journey by Chinese persons to or from other countries, was independent legislation, not dependent, like section 1, on the ratification of the treaty then pending to become a law, and it became effective on its passage.</p> <p>2. Same—Construction of Treaty of 1894—Validity of Regulations.</p> <p>The treaty between China and the United States of December 8, 1894, provides (article 3, par. 2, 28 Stat. 1211) that “Cbinese laborers shall continue to enjoy the privilege "of transit across the territory of the United States, * * * subject to such regulations by tbe government of tbe United States as may be necessary to prevent said privilege of transit from being abused.” The privilege had previously been exercised under regulations prescribed by the treasury department, the -last of which prior to the treaty were promulgated September 28, 1889, and were ih • force when the treaty was ratified. Hold, that effect of such provision of the treaty was to recognize the regulations then in force, and to agree to their continuance, and to such modifications as might be found neces- ■ sary to prevent the privilege granted from being abused.</p> <p>3. Same—Conclusiveness of Collector's Decision.</p> <p>Under the regulations of the treasury department of December 8, •1900, relating to the transit of Chinese persons through the territory of the United States, and also by those of September 28, 1889, it is incumbent upon a Chinese person applying for the privilege of transit to satipfy the collector of the port of his bona Mo intention to make such transit; and on his failure to 'do so the collector may order his deportation, and his decision cannot be reviewed by tbe courts, but only by an appeal to tbe department..</p>

<p>1. Patents—Designs—Invention.</p> <p>Under the rule established by the later decisions, as high a degree of invention is required to sustain design patents as in case of mechanical patents.</p> <p>2. Same—Validity—Design for Monument.</p> <p>The Perry design patent, No-. 22.856, for a design for a monument, covering two elements,-—the shape or configuration of the monument, and a decorative design for its ornamentation,—is invalid as to both features for lack of invention.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal by Leung Quong and Leung- Ming from an order for their deportation.</p>