Volume 112 — Federal Reporter

Action at law to recover damages for breach of a contract on the part of Kittitas county to issue and sell bonds to the amount of $81,000 for funding the county debt.

The bill of complaint in the Pacific Land & Improvement Company against the Elwood Oil Company alleges, in substance: That the selection by complainant's predecessor in interest, one J. It.

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

<p>On Motion to Retax Clerk’s Costs.</p>

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

<p>Insurance—Action on Policies—Evidence Considered.</p> <p>In actions on insurance policies covering “cotton, *' * * the property of tho assured, ⅜ * * or sold but not delivered,” while afloat in transitu in any of certain designated ports, but not to cover “goods on which at the time of any fire there may be any marine, inland or transportation insurance,” to recover for cotton burned while on a lighter in one of the designated ports being transferred to an ocean' steamship, evidence considered, and held not to sustain the defense that at the time of the fire the cotton had been sold and delivered to a purchaser, so as to bring it within the terms of a marine policy held by such alleged purchaser, but to show, that it was then the property of the assured, and strictly within the terms of the policies sued on.</p>

<p>1. Mortgage Foreclosure—Contracts ,of Receiver.</p> <p>. A contract made by a receiver appointed in a foreclosure suit, with ⅛⅜ approval of the court, leasing property involved in the suit pending- its! sale, is binding on the mortgagee, although it is not a formal- party thereto. . ,</p> <p>3. Same—Lease of Property by Receiver—Rights of Lessee.</p> <p>Ir a suit to foreclose a mortgage on tlie property of a telegraph company, the mortgagee claimed, as included in the mortgage under an after-acquired property clause, six vires, which had been strung on the poles of the mortgagor by a second company. A receiver appointed in the suit took possession of the property, and leased the same to complainant, who paid rental therefor. On final hearing, the owner of the six wires was adjudged entitled to remove the same, but on its application they were permitted to remain until the sale, on its giving a bond to the mortgagee for the payment of rental, which it subsequently paid to the mortgagee. Held, that the fund so received belonged to'complainant as lessee.</p> <p>8. Trusts—Relation of Trustee to Third Parties.</p> <p>Defendant, which was mortgagee of a telegraph line and complainant in a suit to foreclose the mortgage, received a sum paid by a second telegraph company, under an order of the court,' as rental for the use of the poles for certain of its own wires during the pendency of the suit. The reeeivér appointed in the suit had previously, with the approval of the court, leased the lino, pending the suit, to complainant, without any reservation as to the wires of the second company, which were claimed by defendant as included in the mortgage, and received the rental therefor. Defendant refused to pay over to complainant the sum so received, and complainant recovered the same by suit Held, that defendant, while trustee for the mortgagee bondholders, was not a trustee of the fund so received in such sense that it was entitled to deduct therefrom thé expenses incurred in defending the suit, but that as to complainant it was merely a depositary, and chargeable with the costs resulting from its wrongful refusal to account, the same as any other litigant.</p>

<p>In Error to the United States Court of Appeals .in the Indian Territory.</p>

<p>Í. Ejectment—Defenses—Equitable Estoppel.</p> <p>The defense of an equitable estoppel may be made in an action in ejectment in a court of the United States.</p> <p>⅞-Estoppel—Judicial Sale—Failure of Defendant to Object to Erro- • <1. n-eous Procedure.</p> <p>A defendant in a foreclosure suit in a federal court, who was served with copies of the decree and order of sale, and of the motion for con-Urination of the sale made thereunder, and, made no objection to such confirmation, and took no appeal therefrom or from the decree, and who was also served with notice of an application by the purchaser for a writ of assistance, and made no objection to its issuance, but submitted to an eviction thereunder, is estopped to attach the purchaser’s title on the' ground that the notice of sale provided for by the decree, and which was followed in making the sale, did not conform to-the requirements of the federal statute governing such sales.</p> <p>■8. Judgment—Persons Concluded—Collateral Attack.</p> <p>The defendant in a foreclosure suit, in which the court had.jurisdic-tión of .the parties-and the subject-matter,, and who took no appeal from the' decree or order confirming the sale made thereunder, is concluded thereby, and cannot attack the same collaterally by an action in eject ..-.meat against the purchaser to. recover the property.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Texas, in Bankruptcy. In the bankruptcy court opposition was made to the discharge of the bankrupt, with the following affidavits appended thereto: “1.

<p>Bankruptcy—General Assignment—Allowance to Assignee.</p> <p>A trustee under a general assignment for the benefit of creditors, where the assignor is adjudged bankrupt within four months after the assignment, is entitled to an allowance from the estate for the actual and necessary expenses incurred..in preserving the property while in- his possession, But not to any allowance for his services, since the assignment was an act in violation of the Bankruptcy law, to which lie was a party.</p>

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

<p>In Bankruptcy. On motion challenging sufficiency of verification of' involuntary petition.</p>

<p>1. Bankruptcy—Transfer and Consolidation of Cases—Partnerships.</p> <p>Bankr. Act 1898, § 32, providing for the transfer of proceedings where petitions are filed “against the same person or against different members of a partnership in different courts of bankruptcy, each of which has jurisdiction,” and their consolidation in the court which can proceed with the same for the greatest convenience of the parties in interest, authorizes such transfer and consolidation in cases where different petitions are filed against a partnership, which is a “person,” within the definition of section 1 (19).</p> <p>2. Same—Discretion of Court.</p> <p>In eases where a partnership is proceeded against in bankruptcy by two or more petitions in different courts, each having jurisdiction, the court in which the petition is first filed will retain jurisdiction and dispose of the case, unless, in its discretion, it directs a transfer to another district for the greater convenience of the parties in interest; and such transfer will not be ordered where it appears that the creditors petitioning therefor have received preferences, which they do not offer to surrender, and it is doubtful whether the transfer will be for the greater convenience of the creditors who have not been preferred.</p>

<p>1. Patents—Designs—Limitation as to Subject op Patent.</p> <p>Design patents refer to appearance, and not to' meelianical utility, and are intended to apply only to matters of-ornament, in whieii the utility depends on the pleasing effect imi>arted to the oye, and not to any new function. A calk for a horseshoe is not a proper subject for such a patent.</p> <p>2. Same—Design as Tbade-Makk.</p> <p>The designer of an article of manufacture, not otherwise entitled to receive a design patent therefor, cannot sustain such a patent upon the theory that the design identifies the article as his, and in effect operates as a trade-mark.</p> <p>8. Same—Horseshoe Calk.</p> <p>The Rowe design patent, No. 26,587, for a design for a horseshoe calk, is void because the article is not an appropriate subject for a design patent.</p>

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

<p>1. Patents—Invention—Water Heater for Fire Engines.</p> <p>Tlie Briekill patent, No. 81,132, for a feed water beater for steam fire engines, was not anticipated, and sliows invention, wliieli, although not of a high order, is sufficient to sustain its validity in view of the practical success of the invention.</p> <p>2. Same—Infringement—Profits Recoverable.</p> <p>The only element of the apparatus shown in such‘patent, however, which discloses patentable novelty, is the supplemental tank with which the heating coil is connected when disconnected from the boiler of the fire engine, the purpose of which is to keep np the circulation of water through the poll, and preserve it from injury, when the engine is absent on duty, and the claim must be so construed as to include such tank and its connections; hence, in an accounting for damages and profits for infringement, the infringer can only be charged with the profits accruing from the use of such tank and its connections, and not for those accruing from the use of the heating coil itself, which, as an old and well-known device, was open to use by the public.</p>

;In Admiralty. Libel in rem against the schooner Laura Madsen, :$y J< William Scammel, M. D., and G. W. Overmeyer, M. D., to .¡recover for professional services in treating one Fred Moore for •••injuries received at sea on board said schooner. Heard on the . /merits. Decree of dismissal.

<p>Appeal from the District Court of the United States for the Northern Division of the Northern District of Washington.</p> <p>This is an action brought by the Lewis Klondike Expedition Company against the steamship Noyo, her tackle, apparel, and furniture, to recover damages for breach of contract in failing to tow the steamer W. IT. Evans, a. light-draught Yukon river boat, from Seattle, Wash., to St. Michaels, Alaska. The lower court rendered a decree in‘ favor of the appellee for $4,250 and costs, and the appellant now seeks a reversal of this decree.</p> <p>The contract involved in this action provided for the towing by the steamer Noyo of the river steamboat W. H. Evans from Seattle to St. Michaels, for the sum of $4,500, of which $2,000 was to be paid in cash upon the signing of the contract, and the remaining $2,500 in transportation of freight and passengers at certain specified rates from St. Michaels to Dawson City, or any other point on the Yukon river. It was also agreed that the steamer W. H. Evans should carry to St. Michaels 50 tons of coal or freight, at the option of the appellant, free of charge for freight and carriage. It was further provided that the steamer W. H. E^ans should furnish her own towline or hawser, and all other thipgs necessary and proper in the towage of said steamer, of sufficient strength and durability, at the absolute risk of the owners of the steamer Evans, and that the steamer Noyo should not be liable for any damage or loss to the steamer Evans by virtue of the parting of the towlines or hawsers used for towing the steamer from Seattle to St. Alichaels, or any other unavoidable cause, “provided, always, that said steamer Noyo shall use reasonable care, skill, and diligence in towing said steamer W. H. Evans between the port of Seattle and the port of St. Alichaels, as aforesaid.” In this connection it was further provided that the steamer Noyo should not be liable for any damage or loss resulting to the steamer Evans from any delay occasioned by stress of w’eather, accident, perils of the sea, or misadventure, during said voyage. It was also agreed that the steamer Noyo. should have the right to take in tow another river steamer for the same' voyage. As security and indemnity to the owners of the Noyo for the unpaid balance of towage charge, it was agreed that the steamer Evans should be insured in the sum of $2,500 in favor of the appellant Jacobsen, agent of said steamer Noyo. It appears that the payment of $2,000 in cash was made, and the steamer Evans duly prepared for the voyage; having on board the 50 tons of coal mentioned in the contract, other freight, and a number of passengers. On June 21, 1S98, the steamer Noyo left Seattle, having in tow the Evans and another river steamboat,—the Alfred J. Beach. On the following day an attempt was made to tow the vessels out by Cape Flattery to the open sea, but, owdng to difficulty with the towing apparatus, a return to Port Angeles wras made, in order that the necessary repairs might be made. A change of masters of the steamer Noyo was here made, and on June 25, 1898, the new master proceeded to tow the vessels by the so-called “inside route” until they reached Dixon’s Entrance on July 1, 1898, when another attempt was made to go out into the open sea; that being the more direct route to St. Alichaels. Very shortly thereafter, and on the same day, the steamer Evans, having parted one of her hog chains, signaled her desire to, be towed into harbor. It is alleged that after communication between the vessels the Noyo continued to tow the river boats out to sea for nearly four hours, disregarding the request of the master of the Evans until the national signals of distress were displayed by the Evans, when the Noyo returned to anchorage with the river boats in American Bay, at Howcan Island; that, after the Noyo had turned back with her tow in response to the signals from the Evans, 29 passengers on board the Noyo signed a formal written document prepared by one of their number and addressed to the master, in which they protested against the delay in the voyage caused by the towing of tlie two river boats Evans and Beacli, representing that the passengers had valuable supplies aboard, destined to camps in the interior of Alaska, which were to supply men with food during the winter, and represented further that in a short time it would be too late to get the supplies up the Yukon to destination, and that delay of the Noyo would mean almost criminal negligence to the passengers. They accordingly protested against any further delay by the Evans, or that the vessel be taken further than Ilowcan, but that the Noyo proceed at once without delay by the direct route to St. Michaels. The Noyo thereupon left the Evans at American Bay, and a few hours laler proceeded out to sea with the steamer Beach in tow. It appears that within three days the steamer Beach sank, and the Noyo proceeded alone to St. Michaels, arriying there on July 16th; that after some necessary preparation the Evans proceeded from American Bay under her own steam to St. Michaels, following the inside route through Clarence, Stikene, and Sumner Straits, Wrangell Narrows, Frederick Sound, Chatham Straits, and Cross Sound, to the open sea; thence by the coast line to Isanotski Strait, between the Alaska Peninsula and Unimak Island; and thence by the north and west shore of Alaska to St. Michaels, arriving there on August 30th. The towage of the Evans from Seattle to American Bay covered a distance of about 700 miles. The voyage of the Evans under her own steam from American Bay to St. Michaels covered a distance of about 2,100 miles. The libel charges collusion of the officers of the steamer Noyo with the officers and owners of the' steamboat Beach to wreck the steamer Evans, in order to lighten the load of the Noyo and hasten her arrival at St. Michaels, and that in pursuance of this conspiracy the attempts to take the open ocean route were made; \that such action was in violation of the contract of tow-age to use reasonable care, skill, and diligence in towing said steamer Evans, as prudent seamanship required the following of the inside route, where safe anchorage could easily be obtained in stormy weather. By reason of this alleged breach of contract, and consequent delay in the arrival of the steamer Evans at St. Michaels, the libelant claims to have suffered damages as follows: Cash payment on towing- contract, $2,000; injury to vessel, $2,500; extra expense in navigation, $3,500; and loss of business and profits on Yukon river, $16,000; total, $24,000. The respondent, in its answer, denies the conspiracy, imprudent seamanship, and willful disregard of life and property and contractual obligation charged, and alleges that all the damage suffered by the steamer Evans was because of her unseaworthiness, improper stowage of cargo, and the conduct of her master in refusing tO' proceed under tow of the Noyo. Por a cross libel the respondent alleges damages as follows, suffered by it by reason of the nonfulfillment of contract on the part of the libelant: 50 tons of coal, at §12, laden on the Evans, and belonging to the Noyo, $600; balance of towage contract, $2,500; expenses occasioned by putting; back to port of Port Angeles to repair towing lines of steamer Evans, $1,500; expenses in returning passengers and freight from St. Michaels to Seattle, contracted to he carried by the Evans up the Yukon river, $1,200; loss of profits on 150 tons of freight contracted to be carried by the Evans up the Yukon for the Noyo, $4,500; total, §10,300.</p> <p>The testimony varies somewhat as to the circumstances of the parting company of the Noyo and the Evans; the witnesses for the appellant stating that the master of the Evans refused to go further under the tow of the Noyo, while fhe master of the Evans, in his deposition, says that the master of the Noyo notified him that he would not tow the Evans any farther, when at Ilowcan Island, and demanded the 50 tons of coal that were on board the Evans, but that, as no fuel could be obtained there, he kept it for use on tire Evans. Exhibits were introduced of written communications which passed between the two masters when going out to sea through Mixon’s Entrance, as follows:</p> <p>“At Sea, July 1, 1898.</p> <p>“To Oapt. of Str. Noyo: I want you to take the Str. W. H. Evans into harbor, as you are wrecking her all to pieces, holding her head to the sea. I will hold you responsible both as a steamboat man and criminally, as it looks as though you are trying to destroy the boat, when you send me word cthat if I don’t sign a release you will tow tier until slie sinks. You take all .responsibility upon your own shoulders.</p> <p>“C. H. Lewis, Master of Str. W. H. Evans.”</p> <p>In response the following was received:</p> <p>.‘"’“Oapt Lewis, Str. W. H. Evans—Dear Sir: At your request I will take your steamer to a port of anchorage. Kindly sign inclosed request, and 'oblige,</p> <p>“yourg truly, W. H. Edgett, Master of Str. Noyo.”</p> <p>The :inelosure read as follows:</p> <p>“At Sea, July 1, ISOS.</p> <p>\ ; “I, as master of steamer W. H. Evans, in tow by Str. Noyo, Seattle to St. ‘Miehaels, do hereby agree to release the steamer Noyo, her owners or char- ' terers, from any further-agreement according to contract dated at Seattle, 1 Wash., June 9, 1898. I hereby request to be taken to port of anchorage.”</p> <p>.■; .Oapt. Lewis .did not sign this release, and the Noyo continued to tow the ,,Eyans out to sea until the extreme distress signal was displayed, when a . return to anchorage was made, and the separation occurred.</p> <p>: .Upon the proofs returned, the lower court fixed the liability for breach .■of ■ contract upon the appellant; that the attempt to proceed out to sea -with the two vessels in tow, under the existing circumstances, was such a • fault .on the part of the Noyo as to amount to failure to perform the contract ! ip.- good faith, and render the vessel and its owners responsible in damages, ..^he. court found the evidence insufficient to afford a basis for an accurate estimate of the amount of damages which the libelant was entitled to re-cover, but allowed the amount of the advance payment on the towing contract . $2,000</p> <p>Additional expense to the Evans incurred in getting to St. Mi- . chaels, $100 a day for SO days. 3,000</p> <p>.Loss of business on stipulated transportation up the Yukon river for the Noyo. 2,500</p> <p>$7,500</p> <p>And to the respondent, as a set-off, was allowed: The coal kept and used by the Evans, 50 tens, at $15. $ 750 Balance of towage money if contract had been performed.. 2,500 3,250</p> <p>Leaving a balance for the libelant of. $4,250</p>

<p>Equity—Ancillary Jurisdiction of Intervention—Laches.</p> <p>A railroad company leased its line to another company, the lease providing that the rental should be paid directly to its stockholders in the nature of dividends on their stock. In subsequent litigation in a federal court, in -which mortgages given by the lessee company were foreclosed, a receiver was appointed, who took possession of and operated the leased line, bnt paid no rental thereon. The lessor company intervened, and became a party to such litigation, and by a compromise settlement, by which'the lessee company was reorganized, it was agreed that the lessor company should receive the net earnings of the line under the receivership, and that the reorganized company should pay it a further sum, and take a renewal lease. Such agreement was ratified by the court, the sums were paid, and the lessor company distributed a portion of the fund as a dividend to its stockholders, and used a portion for other purposes. The dividend was accepted by its stockholders, a majority of whom at a stockholders’ meeting ratified the company’s action. Five years after-wards certain of the stockholders filed a bill of intervention in the suit against the company and the reorganized lessee company, alleging that the entire fund received under the compromise settlement was for rental, and under the terms of the original lease was the property of the stockholders, and not of the corporation, which merely took it in trust; and the bill prayed that the company be required to distribute the remainder of such fund to them. Held, that the reorganized company was not a proper party to such bill, and that the intervention should be dismissed as to the lessor company: (1) Because the original lease was abrogated by the receivership, and the net earnings thereunder awarded to the lessor were not governed by its provisions; (2) because., if the further sum paid by the reorganized company for a renewal ’ of the lease be regarded as rental under the original lease, the bill showed that an amount in excess of such payment had been distributed to the stockholders as a dividend, and received without objection; (3) because the interveners were represented in the original litigation hy the company without objection, and their rights as against all other parties to the suit fully determined, and the questions sought to be raised by the intervention, having arisen out of dealings between the company and its stockholders after the litigation was closed so far as such company was concerned, were not properly within the ancillary jurisdiction- of the court; (4) because the demands sought to be enforced were stale, and tbe right to relief barred by laches.</p>

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

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

<p>1. Waters—Appropriation under Power of Eminent Domain—Injury to Riparian Owners in Another State.</p> <p>A state cannot, in tlie exercise of its power of eminent domain, authorize one of its municipalities to divert the waters of a nonnavigable interstate stream, to the injury of riparian owners on such stream in another state. The right of such owners to the use of the water flowing in its natural channel is not an easement dependent upon servitudes upon lands above, in the other state, which such state may extinguish on making constitutional compensation, but is inseparably annexed to the soil, and is parcel of the land itself; and the diversion of the water in the state above is a taking of property outside the limits of the state, and beyond its jurisdiction.</p> <p>2. Same—Remedy for Unlawful Diversion—Injunction.</p> <p>Where a city in New York, acting under authority of a state statute, is proceeding to divert the waters of a nonnavigable stream in that state for municipal purposes, to the injury of riparian owners below, whose lands are situated in Connecticut, such owners are not confined to the remedy given by the New York statute to obtain compensation for the injury; but, the act being a tortious taking of their property in Connecticut without authority of law, they may maintain a suit in equity to enjoin the same.</p> <p>Wheeler, District Judge, dissenting.</p>

In Ejectment. This is an action to recover possession of certain property, hereinafter described. From the evidence offered on behalf of iilaintifi, it appears, among, other things, that on June 15, 1895, P. K. Reid and. his wife, two of the de-’ fendants in this action, made, executed, and delivered to the plaintiff herein a mortgage to secure the payment of a note for $5,000 upon all of lots 6, 7, 8, 9, and 14; also N. ½ of .lot 10 in block No. 22 in Lovelock.

<p>Actions at Law for Libel. On demurrer to declarations.</p>

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

This case was tried in the court below on the following declaration : “State of Mississippi, County of Jones.

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

<p>Bankruptcy—Liens—Estoppel op Trustee to Contest.</p> <p>A trustee in bankruptcy cannot attack tbe validity of a chattel mortgage on property of the bankrupt, which was expressly recognized by a recital in the bill of sale by which the bankrupt obtained title, that he took the property subject to such mortgage, and assumed its payment. In such case the trustee occupies no better position than the bankrupt, and neither can hold the property and repudiate the mortgage.</p>

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

In Bankruptcy. On petition for an order requiring the trustee to convey to the petitioner property claimed to have been held by the bankrupt in trust.

<p>Bankruptcy—Disco arge—Concealment op Assets.</p> <p>A voluntary bankrupt stated■ in his schedules that he had no cash on hand, and he made no disclosure of any during his examination, but it subsequently appeared that at the time of the filing of his petition he had a deposit in bank exceeding $100. After such fact was shown he made no application to amend his schedules, and no offer to turn the money over to his trustee. Held, that under such circumstances the omission could not be deemed to have been duo to inadvertence, hiit that lie must be considered as having knowingly and fraudulently concealed the money from his trustee, and to have made a false oath to his schedules, which debarred him from the right to a discharge.</p>

<p>1. Bankruptcy—Property Vesting in Trustee—Interest in Estate.</p> <p>The interest of a bankrupt in bis father’s estate, vested before the bankruptcy, although undetermined, becomes vested by the bankruptcy in his trustee.</p> <p>2. Same—Exemptions—Partnership Property.</p> <p>A bankrupt, who is also surviving partner in a bankrupt partnership, is not entitled to claim exemptions from property which belongs to the partnership estate.</p> <p>3. Same—Partnership—Rights of Firm Creditors in Estate of Partner.</p> <p>' Joint and several notes given by partners for partnership liabilities constitute debts of the partnership, notwithstanding the individual liability of the partners thereon, and the holders of such notes are not entitled to share in,the individual estate of a partner in bankruptcy.</p>

In Chambers. Proceedings on writ of habeas corpus. The petition setting forth the commitment and detention of the relator charges that his detention is illegal on the following grounds: .. (1) That the commitment under which your petitioner is held is illegal and wold. (2) That the court was without jurisdiction or power to sentence your petitioner in the premises. (3) That the motion upon which the proceedings were had was not sworn to or verified.

<p>Trade-Marls-Infringement-Name Used to Identify Article with Patent.</p> <p>Where the manufacturer of a patented article, in connection with the marking thereon, showing the date of the patent gave the name of th’e patentee, And also an arbitrary name to the article, but without giv- . ing its own name as manufacturer, so that such arbitrary name merely ... identified the article with the patent, such marking did not constitute a trade-mark, but, on the expiration of the patent, another manufacturer has the right, not only to make and sell the article in the same form, but also to mark it with the same or a similar name, where, in connec- ■ tion with such name, it places thereon its own name as manufacturer, marked with sufficient prominence to clearly distinguish the article from those made by the original manufacturer.</p>

<p>1. Patents—Contributory Infringement.</p> <p>The essence of contributory infringement of a patent lies in concerting or planning with others in an unlawful invasion of the patentee’s rights, which is usually done by making or selling a part of the patented invention with the intent and purpose of aiding another in its sale or use. Contributory infringement cannot be predicated of the rebuilding or replacing of parts of a patented machine by a purchaser for his own usie.1</p> <p>2. Same—Infringement by Purchaser.</p> <p>The purchaser of a patented machine, in order to infringe, must make or reproduce in substance the whole patented invention. The only ■ difference between his position and that of an ordinary infringer is that he lias bought a patented machine, and consequently his infringement does not consist in the construction of a wholly new machine, but in the reconstruction of his machine after it is worn out, or substantially destroyed; and, to constitute infringement on his part, where the patented invention comprises several elements in combination, it is only necessary that he shall have reconstructed all the material or essential elements of the combination.</p> <p>3. Same.</p> <p>No general rule can be laid down by which to determine the line of demarcation between legitimate repairs which a purchaser of a patented machine may rightfully make thereon and a reconstruction or reproduction which will constitute infringement. Each case must, in that regard, be decided on its own facts, having reference to the scope and purpose of the invention and the fair and reasonable intention of the parties.</p> <p>4. Same—Sewing Machines—Iíeoonstrootion op Parts op Combination.</p> <p>The Fowler & Warren patents, No. 545,625, No. 560,705, and No. 564,-986, each of which covers a combination of mechanism for sewing machines, embracing a number of essential elements, held not infringed by purchasers who had one or more of such elements reconstructed when worn out or broken. There having been in each case remaining elements or parts which were essential to the patented combination, the replacement of those worn out or broken constituted repair, and not a rebuilding.</p>

<p>Collision—Tugs and Tows Passing at Drawbridge—Failure of Tow to Obey Signal from Tug.</p> <p>The tug’ Mystic, towing a raft down stream in the St. Louis riter at Duluth, approached the draw of a bridge, while the tug Industry was approaching from the other side, towing the steamer Peerless. There were two channels through the draw, and the tugs agreed by signal that the Mystic should pass through the south channel and the Industry the north channel. It was necessary for the Mystic to push her raft south of the channel, where it would float under the bridge; and in doing so she backed into the north channel to obtain headway, intending to immediately go forward again, and to be out of the way before the Industry, which was about TOO feet distant, should reach the draw, which she in fact ivas. The master of the Industry, seeing the maneuver, signaled the Peerless to hack, which she did; but, when the Mystic began to move ahead, he signaled the Peerless to stop backing, which signal she did not obey, but kept backing until the tug had towed her nearly 500 feet beyond the draw, when her bow came in collision with a barge, which was being towed down to the draw by a third tug, and she was sunk. The testimony tended to show that her continued backing while the tug was going forward threw her bow to one side of the course of the tug, and that otherwise the collision would not have occurred. Held, that the action of the Mystic could not be considered the proximate cause of the collision, which must be attributed solely to the fault of the Peerless in failing to obey (he signal of her tug to stop backing.1</p>

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

<p>1. CIRCUIT COURT OB’ ArPEALS—JURISDICTION—APPEALS FROM DISTRICT COURT of Hawaii.</p> <p>Section 86 of Act April 30, 1900, providing a government for the territory of Hawaii, after defining the jurisdiction of the district court of the United States for the district of Hawaii, giving it the jurisdiction of 'Doth a district and circuit court of the United States, provides that “wilts of error and appeals from said district court shall be had and allowed to the circuit court of appeals in the Ninth judicial circuit in the same manner as writs of error and appeals are allowed from circuit courts of appeals as provided by law.” Meld, that such provision did not restrict the appellate jurisdiction of the circuit court of appeals to causes tried by the district court when acting as a circuit court, but was sufficiently comprehensive to give such right of review in all causes which would be so reviewable if tried in a district or circuit court of the United States, the phrase “in the same manner” having reference to the procedure only; and that a decree in admiralty rendered by such district court was ap-pealable, 1</p> <p>2. Admiralty—Review on Appeal—Questions oi’ Fact.</p> <p>When two courts have considered the facts, and readied tlie same conclusion as to the fault for a collision, the burden rests upon an appellant to show that such decisions were manifestly wrong before the judgment of the lower court will be reversed.</p> <p>S. Collision—International Rules—Duty of Steam Vessels.</p> <p>The suggestion in the preliminary note to article 17 of the international navigation rules (26 Stat. 320), relating to sailing vessels approaching one another, that, if the compass bearing of an approaching vessel does not appreciably change as the two vessels draw nearer together, there should be detuned to be risk of collision, is not a rule of navigation, but merely a suggestion of one circumstance which denotes that there is danger of collision; and a steamer is not justified in assuming that there is no risk because there is an appreciable change in the compass bearing of the lights of a sailing vessel seen at night, which would manifestly be an unwarranted assumption under some circumstances.2</p> <p>4, Same.</p> <p>Under the settled rule of the admiralty courts it is the duty of a steamer, when the lights of an approaching vessel are fluctuating, or for any reason there appears ⅛ be uncertainty as to her course, to slacken speed, and, if necessary, stop, neither proceeding nor changing course until the course of the other vessel has been ascertained; and this duty is specifically imposed by article 23 of the navigatioh rules upon a steam vessel which is required to keep out of the way of another vessel.</p> <p>5. Same—Failure to Maintain Lookout.</p> <p>For, an officer to leave his vessel entirely without a lookout, especially when another vessel is known to be in the vicinity, is culpable negligence, and approaches very nearly the line of reckless navigation. Where it is shown that a steamer had no lookout at night, and failed to station one, although,the officer in charge saw the lights of another vessel ahead 10 minutes before collision, but was unable to make them out distinctly, every doubt, will be resolved against such steamer in an action for the collision.</p> <p>6. Same—Steamer and Sailing Vessel Crossing—Evidence Considered.</p> <p>In an action against a steamer for collision with a barkentine in the night, in which the latter was sunk, the weight of evidence sustained the claim of the barkentine that she kept her course, and- carried proper lights, which were burning brightly. On the other hand, it appeared that the steamer had no lookout; that the officer in charge saw the lights of the barkentine some 10 minutes before the collision, and when they were probably 2 miles distant, but was unable to make out the character or course of the other vessel; that he took no steps to ascertain, and continued at full speed of 10 knots, keeping his course, until about 2 minutes before the collision, when it was changed a few points to starboard, in which direction the barkentine was moving. Held, that the steamer was in fault for the collision, not only because of the presumption against her arising from the rule requiring her to keep out of the way, but because the evidence showed that her navigation was improper and negligent.</p>

<p>On Motion to Remand to State Court.</p>

<p>1. JURISDICTION- OF FbBKRAL COURTS—DIVERSITY OF CITIZENSHIP.</p> <p>If diversity of citizenship exists at the time suit is brought in a federal court, jurisdiction will not be ousted by the fact that plaintiff has since become a citizen of tbe same state as defendant.!</p> <p>2. Same—Citizenship—Domicile As Distinguished prom Residence.</p> <p>A plaintiff’s citizensliip, for the purposes of the jurisdiction of a federal court, depends upon his domicile, which is a different thing from his residence, and may be in a different state.</p> <p>8. Same—Burden of Proof as to Citizenship.</p> <p>Where a petition alleges the necessary diverse citizenship to give the Court jurisdiction, the burden of alleging and proving that plaintiff was a citizen of the same state as defendant, to defeat the jurisdiction,"rests upon the defendant; but proof that he resided in such state at the time the action was brought is⅝ sufficient prima facie, and shifts to plaintiff the burden of showing that his domicile, and consequent citizenship, ivas not the same as his residence.</p> <p>á. Domicile—Change of Residence—Intent.</p> <p>A person does not lose his domicile and citizenship in one state by-removing to another to reside temporarily, and with the intention of returning to his former residence at a definite time in the future.</p> <p>5. Same—Evidence of Intention.</p> <p>Upon the question of a person’s intention in changing his residence, as affecting his domicile, while his actions are the best evidence, his own testimony may be considered, and will be controlling, where it is not inconsistent with his actions or declarations.</p> <p>6. Jurisdiction of Federal Courts—Citizenship of Plaintiff—Evidence of Change of Domicile.</p> <p>Plaintiff in an action in a federal court against a city in Kentucky alleged that he was a citizen of Ohio when the action was commenced. On a plea traversing such allegation, and alleging that he was a citizen of Kentucky, the evidence showed that he was a native of Ohio, and. until three months before the action wds brought had always resided there, except for two temporary removals, after each of which he had returned; that he worked in defendant citys but owned a house across the river, in Ohio, where he resided until October before the action was brought, in January, when he removed across the river into Kentucky, as he testified, to be ne'arer his work during the winter, and with the intention of returning in the spring. He did not in fact return in the spring after the action was commenced, but gave satisfactory reasons for not doing so, and testified that it had ever since been his intention to return the following spring. He retained his house in Ohio, and "voted there in the fall after his removal, and had never voted in Kentucky. ■ ¿¿eld, that such evidence was insufficient to show a change of domicile, to defeat, the jurisdiction of the court.</p>

<p>1. Removal of Causes—Federal Question—Allegations in Pleadings.</p> <p>It is not essential, to give a defendant the right of removal on the ground that it is a corporation organized under an act of congress, that such fact should appear from the complaint, but it may be shown by the petition for removal; especially where the complaint fails to allege whether the defendant is a federal or a state corporation.</p> <p>S. Same—Diversity of Citizenship—Federal Corporation.</p> <p>A defendant corporation, organized under a law of the United States, cannot remove the cause on the ground that it is a suit between citizens of different states. 1</p> <p>8. Same—Federal Question—Separable Controversy.</p> <p>Where it is sought to remove a suit on the ground that it arises under the constitution or laws of the United States, all the defendants, if more than one, must join in the petition; one of two defendants cannot remove on tbe ground that it is a federal corporation, and that there is a separable controversy. 2</p>

<p>1. Jurisdiction of Federad Court—Citizenship—Married Woman.</p> <p>While as a general doctrine tlie domicile of the husband is by law that of the wife, there is an exception where a married woman has been unlawfully deserted by her husband, who has gone to parts unknown and ceased to provide for her support, and in such case she may establish a separate domicile, and may acquire citizenship in another state for the purposes of the jurisdiction of a federal court, when the right to acquire citizenship therein under such circumstances is recognized by the law of sucli state, 1</p> <p>2. Munioirad Corporations—Defective Sidewalk—Action for Injury.</p> <p>In an action to recover for injuries caused by falling on a sidewalk alleged to have been defective, the question whether the city was negligent in permitting a portion of the walk in thickly-settled locality to project above the adjoining walk for three inches, where there was evidence that it has -been in such condition for six months, was one for the jury.</p> <p>8. Contributory Negligence—Burden of Proof.</p> <p>By the settled practice of the federal courts, the burden of proving contributory negligence rests upon the defendant.</p>

<p>1. Federal and State Courts—-Priority on Jurisdiction—Matters in Issue.</p> <p>Under Act Aug. 1, 1888 (25 Stat. 357), authorizing the condemnation of land for sites of public building and for other purposes, a federal court in which proceedings are instituted by the United States for such condemnation acquires exclusive jurisdictiqn of all matters properly arising in such proceedings, and it is its duty to retain such jurisdiction and to determine all such questions; but the jurisdiction in such proceedings is special, and limited to the determining of matters which are material to and. directly connected with the judgment sought to be obtained, and does not necessarily extend to a determination of the ownership df the land sought to be condemned, as between different claimants, to the exclusion of a state court.1</p> <p>2. Judgments—Effect Given by Federal Courts to Judgment of State Court.</p> <p>When the final judgment of a state court is offered in evidence in a proceeding in a court of the United States, its validity cannot be questioned for errors which do not affect the jurisdiction of the court which rendered ⅛.2</p> <p>3. Actions—Proceedings Constituting Commencement—Federal Courts.</p> <p>In the federal courts jurisdiction does not attach, under the general rule, by the filing of a complaint and the issuance of summons, but only upon the service of process, and this rule is not controlled by the provisions of state statutes.</p> <p>4. Federal and State Courts—Priority of Jurisdiction—Suits Involving Independent Questions.</p> <p>Proceedings were commenced by the United States in a federal court to condemn lands for government purposes under the statute, and process was issued therein, but was not served on a defendant until after summons had been served on him in an action subsequently commenced in a state court by a third person to recover an interest in the land sought to be condemned. Held, that the state court acquired priority of jurisdiction to detqrmine the title to the land, as between the parties before it, which did not, however, in any manner interfere vidth the jurisdiction of the federal court to proceed with the condemnation proceedings, which under the statute was exclusive, and that such court, after the land had been condemned, and the amount of the award had been paid by the United States into its registry, properly gave effect to the judgment of the state court in the distribution of such award.3</p> <p>6. Same.</p> <p>The fact that, at the time the issues were made up in the state court and the cause tried, the title to the land had passed to the United States by virtue of the condemnation proceedings, and the amount awarded as compensation therefor was in the registry of the federal court, did not affect the jurisdiction of the state court to determine the rights of the parties before it therein; nor did the fact that the custodian of the fund was not a party.</p>

■ The appeal in this case arises out of the following facts: Conrad Bohn and William G. Bohn, in September.,’ 18S8, executed a mortgage in favor of the National Life Insurance Company, the appellee, whereby they conveyed certain property, with improvements thereon, which were situated in Douglas county, Neb., to secure the payment of their notes to the amount of $25,000.

On November 25, 1889, George ,T. Williams, the appellee, exhibited an original bill of complaint against Horace H. Hagan and Arthur Vercruysse for the purpose of foreclosing a mortgage on a hertain tract of land situated in the county of Pottawatomie, Kan., -which was executed by Horace H. Hagan on July 1, 1884. The original bill averred that the mortgage loan was made by Lucas It.

Appeals from the Circuit Court of the United States for the District of Kansas. These are cross appeals from a decree rendered by the circuit court of the United States for the district of Kansas in a case wherein U. W. Anthony is the complainant, and the Investment Trust Company and the City Beal Estate Trust Company are the defendants, which action was commenced on May 2, 189(>.

In Equity. Suit for rescission and cancellation of contract for supplying water to complainafits, and cross bill for the enforcement of such contract. Hearing on cross bill and answer thereto.

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

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

This action was instituted to recorer damages alleged to have heen sustained by the Western Manufacturing Company, plaintiff in error, by reason of a breach of contract on the part of Kingman & Co., a corporation, defendant in error. The manufacturing company was located at Lincoln, Neb., and was engaged in the business of manufacturing agricultural implements. Kingman <fe Co. was located at. Peoria, Ill., and was a dealer in agricultural implements.

<p>1. Appeal—Review—Harmless Error.</p> <p>A mere inaccuracy of expression by a trial judge is not a ground of reversal where the intended meaning is plain, and the inadvertence caused no injurious misunderstanding.</p> <p>8. Contracts—Defenses to Action for Breach—Conduct as Admission of Performance.</p> <p>Plaintiff contracted to sell to defendants the trade-marks, good will, and plant of a manufacturing business which was conducted in accordance with a secret process. She warranted that the process was a practical one, by which the goods, when made, would remain in a merchantable condition from one to two years and upwards, and that the cost of manufacture would not exceed a sum named.' She also agreed to teach the process to defendants or their employes, and to remain with them until they were familiar with it. Defendants contracted to make a cash payment, and a further payment at the end of six months, or as soon as they were satisfied that- they thoroughly understood the process and that the manufacture was a success, together with still other payments afterwards. Reid, that the fact that defendants made the second payment was not a conclusive admission that the warranty had been fulfilled and the condition precedent thereto performed, which precluded them from pleading a breach of the warranty and nonperformance of the condition in defense to an action to recover subsequent payments, but that such fact was one to be considered by the jury in connection with all evidence offered by defendants which tended to sustain their defense.</p>

This was an action in replevin Instituted by A. C. Dake and E. A. Keeler, the defendants in error, against E. J. Buckingham, plaintiff in error, to recover possession of 311 head of three year old steers.

<p>At Law. Action on life insurance policy. On motion by plaintiff for new trial.</p>

At Raw. On motion to strike off special plea, and demurrer to replication thereto, and on. defendant’s rule to quash plaintiff’s rule to take depositions.

<p>1. Marriage—What Constitutes at Common Law—Contract and Cohabita- ' tion.</p> <p>A contract between a man and woman to become husband and wife, made in good faith and followed by a consistent and notorious matrimonial cohabitation, constitutes a valid common-law marriage, unless interdicted by some express statute, and confers upon the parties all the rights, and subjects them to all the duties and obligations, incident to the marriage relation.</p> <p>2. Same—Validity of Marriage Promise—Knowledge That Promisor was Married.</p> <p>A mutual promise of marriage between two persons, one of whom is known by both to be married, is void; and, where the woman has knowledge that the man has for many years lived and cohabited with another ■woman in the relation of husband and wife, she is chargeable with notice that he is married, and cannot maintain an action for breach of the contract on the ground that he represented himself to be unmarried.</p> <p>3. Equitable Estoppel—False Representations.</p> <p>False representations, to work an estoppel, must also be of a nature to lead a reasonably prudent person to the action taken, and must have been acted on in good faith and in ignorance of the troth.</p> <p>4. Marriage—Actions for: Breach of Promise—Questions for Jury.</p> <p>VVliere the uncontradicted evidence in an action for breach of promise of marriage shows that defendant was, as a matter of law, a married •man when the alleged contract was made, the court should take the responsibility of declaring such conclusion, and not submit the question to the jury.</p>

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

<p>In Bankruptcy. On exceptions to ruling of referee with respect to claim of Roberts-Wicks Company.</p>

In Bankruptcy. On review of decision of referee. 1-1. A. Moore was adjudicated a bankrupt on his own petition on October 1, 1901. He retimed no property except wearing apparel valued at $40, and a claim for wages to the amount of $95, which the trustee collected. The bankrupt claimed this property as exempt.

In Bankruptcy. On, motion to confirm report, of referee allowing a recovery of goods sold the bankrupt on the ground that they were obtained by false, representations.

j _ Petition for Revision of Proceedings of the District Court of the 1'tÍfníte.d States for the Western District of Tennessee, in Bankruptcy. j.’ W. Williams, on the 5th day of February, 1901, filed his petition in ' ba'nki'uptcy in the district court of the United States for the Western district • of-Tennessee, and was duly adjudicated a bankrupt. Among his assets the -■bankrupt scheduled .a stock of goods in a storehouse at Lucy, Tenn.

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Ohio, in Bankruptcy. This petition comes into this court to review an order in bankruptcy in the district court of the United States for the Northern district of Ohio, made upon the finding of the referee as to the validity of a certain chattel mortgage claimed hy the firm of Benton, Myers & Oo. upon the property of the bankrupt.

<p>In Bankruptcy. On review of decision of the referee making an allowance to the bankrupts for attorney’s fees.</p>

<p>Bankruptcy—Liens—Chattel Mortgage—Invalid for Want op Record.</p> <p>Comp. St. Neb. 1899, § 8188, provides that chattel mortgages, or conveyances intended to operate as such, where there is no delivery or change of possession of the property, “shall be absolutely void as against the creditor of the mortgagor” unless the mortgage or a copy thereof shall be filed for record. The term “creditor,” as used in such statute, has been construed by the supreme court of the state to mean “a judgment, execution, or attachment creditor; that is, á creditor who is using the courts of law and their processes for the collection of his debt.” Held, that all the creditors of an involuntary bankrupt were “creditors,” within such definition, and that an unrecorded contract of conditional sale of property to the bankrupt, reserving a lien to the seller for the price, and intended to operate as a chattel mortgage, was invalid to create a lien as against the bankrupt’s trustee.</p>

Lees M. Thompson on August 11, 1899, filed her voluntary petition in the district court of the United States for the district of Minnesota to he adjudicated a bankrupt, and was on that day duly adjudicated as such. Subsequently, in due course of procedure, Nash Bros., a corporation, the appellee herein, presented its claim in the sum of $8,058.29 for allowance against the bankrupt’s estate.

<p>Bankruptcy—Discharge—Fraudulent Intent.</p> <p>That a bankrupt’s interest in land is doubtful, and that, if it exists, it is, or may be, exempt as a homestead, are facts entitled to consideration, on the question of his fraudulent intent in omitting to schedule such interest.</p>

<p>1 ‘ Appeal from the District Court of the United States for the District of Massachusetts.</p>

<p>1. Creditors’ Bill—Insolvency Proceeding.</p> <p>1A proceeding in the form of a creditors’ bill, filed in a court of that, state, under sections 2716-2722, inclusive, of tbe Code of Georgia, with the averments and prayers essential under those sections, is an insolvency or state bankruptcy proceeding.</p> <p>2. Same.</p> <p>) Ryan v. Kingsberry, 14 S. E. 605, 88 Ga. 389, and Comer v. Coates, 69 Í Gn. 495, cited and approved.</p> <p>3. ¡Bankruptcy—Preferences.</p> <p>The character of a proceeding in court may be tested by what can be accomplished under it, and since the bankruptcy act of 1898 has been in operation it is incompetent for a lien creditor of a bankrupt to so use his Tien in the state court as to support a state insolvency proceeding, and distribute the assets of the bankrupt according to the priorities and preferences fixed by the state law, and thus supplant ami nullify the uniform system provided by the national bankruptcy act.</p> <p>Same—Contempt.</p> <p>When a custodian, who has no personal interest, after full hearing by the bankruptcy court, refuses to surrender any of the assets of a bankrupt to the marshal when so ordered, upon the pretense he has a right to hold a part, lie is not entitled to discharge from contempt proceedings, even on habeas corpus, until he surrenders that to which he lias no claim. Tinsley v. Anderson, 18 Sup. Ct 805, 171 U. S. 101, 43 L. Ed. 41, cited.</p> <p>6. Same—Suspension of State Laws.</p> <p>Tlie bankruptcy or insolvency laws of a state are suspended by the enactment of a uniform system of bankraptcy, and proceedings under such insolvency laws, commenced after the passage of the bankruptcy act, are ipso facto null and void, and the appointment of a receiver by a state court to administer the assets under such insolvency proceedings is a nullity, and may be so held in any court when it becomes material to the interest of parties to consider it.</p> <p>6, Jurisdiction—Comity.</p> <p>Comity cannot confer jurisdiction, and its exercise cannot Impart validity to orders and decrees which are in themselves null and void. (Syllabus by tlie Court.)</p>

<p>Internal Revenue—Pistiller’s Annual Bond—Scope of Obligation.</p> <p>A distiller’s “annual bond,” given pursuant to Rev. St. § 3260, and conditioned that be “shall faithfully comply with all the provisions of law relating to the duties and business of distillers, and shall pay all penalties incurred or fines imposed on him for a violation of any of the said provisions,” and shall keep the property free from liens, does not bind the sureties therein to the payment of taxes on distilled spirits, which the distiller has properly deposited in a bonded warehouse, and for the payment of the taxes on which he has given- a warehouse bond as required by section 3293, which has been accepted by the government; but the “duties of a distiller,” within the meaning of the statute and bond, must be considered as having- been performed with respect to such spirits when they are so deposited, and an acceptable warehouse bond given, specifically securing the payment of the taxes thereon.</p>

<p>1. Criminal Law—Felonies—Breaking into Post Office.</p> <p>Rev. St. § 5478, making the breaking into a post office a crime punishable by a fine and by imprisonment at hard labor for not more than five years, creates a purely statutory offense “against the operation of the government,” which was unknown to the common law, and is therefore not within the class of crimes known as felonies at the common law, and in the absence of any definition in the statute must be classed as a misdemeanor, and not a felony.</p> <p>3. Jury—Peremptory Challenges.</p> <p>Under Rev. St. § 819, allowing a defendant charged with a felony ten peremptory challenges, and but three in other eases, a defendant prosecuted under Rev. St. § 5478, for breaking into a post office, is entitled to but three challenges.</p> <p>8. Indictment—Stating Place of Offense.</p> <p>An indictment charging that defendant “in the county .of Licking, in the state of Ohio, * * * did then and there * * * break into a building, then and there used in part as a post office of the United States, to wit, the post office at Granville,” etc., is sufficiently specific in locating the place of the offense.</p> <p>4. CRIMINAL Law—Review on Appeal—Objections to Evidence,,</p> <p>To entitle a defendant to a review of rulings admitting evidence, the objections made must have been sufficiently specific to advise the trial court of the grounds of objection.</p> <p>5. Same—Evidence—Secondary Evidence.</p> <p>In a prosecution for breaking into a post office the government introduced testimony tending to show that defendant and three others registered at a hotel in a city a few miles from the place where the offense was committed, on the preceding day, and went together to such place in the evening, the offense being committed that night. There was also evidence tending to show that defendant had registered for himself and another of the party under assumed names. Held, that proof of such registration was competent, as a circumstance bearing on the guilt of tlie accused, and that on proof that the leaf containing the names had been removed from the register by some person unknown, and could not be found, a tracing made by a government inspector before the mutilation of the register, and shown to bo an accurate representation of the signatures, was admissible as secondary evidence.</p> <p>6. Same—Evidence—Photographs as Means of Identification.</p> <p>On the trial of a person for a crime committed four years previously, photographs of defendant and his alleged confederates, shown to be good likenesses of them at tlie time the crime was committed, and to have been shown to witnesses for the government shortly after, who were then able to Identify them as the likenesses of men who were seen together at the place of the crime on the evening previous to its commission, may properly be used by such witnesses to identify the defendant and those charged with him as the persons so seen.</p> <p>7. Same—Possession of Stolen Property—Evidence of Burglary.</p> <p>The possession of goods recently stolen is entitled to more or less •weight as an inculpatory circumstance, depending on the facts of each case; and unless rebutted by the evidence, or the explanation of the accused, tlie jury may act upon it, not only where the accused is charged with the theft, but in a case In which he is charged with the burglary by which the theft was accomplished; and the term “recently,” as used in such connection, is a variable one, dependent for Its meaning in each ease upon the other circumstances shown.</p> <p>8. Same.</p> <p>On a prosecution of defendant for breaking and entering a post office in Oliio, it was shown that among other articles stolen therefrom were a number of blank money orders. It was also shown that defendant, a few weeks afterwards, procured a post office stamp to be made, together with type and pad for use with It. He was arrested in Chicago over two months after the robbery while attempting to pass one of such orders fraudulently stamped, and with a forged signature thereto, and another forged order and the stamp were found in his possession. Held, that such facts were competent evidence from which the jury were authorized to infer defendant’s guilt of th'e crime charged, unless so explained as to show that his possession of 1he stolen property was innocent.</p>

<p>Criminal Prosecution. On motion for new trial.</p>

<p>1. Embezzlement—Sufficiency of Indictment—Description of Offense.</p> <p>An indictment for embezzlement, based on Rev. St. § 5492, which charges that the defendant, having moneys of the United States in his possession on a certain date, knowingly, willfully, and feloniously failed to deposit the same on a subsequent date named, as required by the secretary of the treasury, will not be held insufficient on a motion in arrest of judgment because' it fails to charge that defendant did not deposit the money prior to the date named, since that would be a matter of defense, which the indictment is not required to anticipate and negative; and, in any event, if the omission is a defect, it is one which did not tend to the prejudice of the defendant, and which, under Rev. St. § 1025, does not render the indictment insufficient.</p> <p>2. Criminal Law—Motion in Arrest of Judgment—Defects in Indictment.</p> <p>On a motion in arrest of judgment!the indictment should receive a liberal construction, and an. informal or imperfect allegation of an essential fact will be deemed a sufficient averment of such fact.</p>

<p>Appeal from the Circuit Court of the United States for the Distinct of Maine.</p>

<p>Patents—Infringement—Fi.oob Construction.</p> <p>The Jackson patent, No. 320,000, for an improvement in floor and sidewalk construction, claim 2, describing a combination of metallic beams and cross bars or bearers to support a surface of artificial stone or concrete, construed, and held not infringed by the structure described in the ,'Jolmson patent, No. 550,177.</p>

<p>1. Admiralty—Amendment of Libel—Conformity to Mandate on Reversal.</p> <p>A decree of a court of admiralty awarding damages for injury to a vessel in favor of an underwriter which had paid insurance on account of such injury was reversed on appeal because it appeared from the libel that the damages caused by the injury exceeded the amount of insurance paid, and that libelant could not split the cause of action, and maintain a suit to recover a portion only of such damages. In its opinion the appellate court stated that on the return of the record to the district court it would be open to libelant “to amend its libel and show, if it can, that the excess of damages over the sum for which it sues has been paid, released, or otherwise extinguished, so that claimants are no longer liable therefor at the suit of any one.” After the ease was remanded the libel was amended by the addition of an allegation that the only party in interest except libelant was the company owning the injured vessel, which had authorized libelant to file the libel and collect the amount of insurance paid, and that the company made no further claim for damages. In support of such averment libelant offered in evidence a release executed by such company pursuant to a resolution of its board of directors, but after the cause was remanded, and which released any claim for damages beyond those sued for by libelant. Held, that such amendment, and the evidence in support thereof, conformed to the requirements of the mandate, by showing that at the time the libel was filed libelant was the only party in interest asserting any claim, and that the claimants were fully protected against a second suit, and entitled libelant to maintain the suit to recover its own damages.</p> <p>% Same—Stipulation for Release of Vessel—Liability of Sureties.</p> <p>A stipulation given for the release of a libeled vessel takes the place of the released property, and the sureties become parties to the cause, and are bound by orders subsequently made therein to the same extent as the claimant A decree rendered upon an amended libel, which the court had power to permit to be filed, is as binding upon the sureties as upon their principal.</p> <p>3. Shipping—Suit for Injury to Vessel—Award op Damages.</p> <p>Where the insurer of a vessel pays a loss occasioned by her injury through the fault of another vessel only after the damage has been appraised by a commission, and the ordinary steps have been taken to verify such appraisement, there is a strong presumption that the damage was equal to the amount paid: and the estimate of witnesses who made an examination of the vessel live or six years later for tlie express purpose of minimizing the damages does not justify an appellate court in reversing a decree for damages against the offending vessel equal to the amount of the original appraisal, and which is also supported by other evidence.</p>

<p>1. Fed krai. Court—Removal of Causes.</p> <p>A suit instituted by a state against a claimant of land, to enforce a forfeiture of tbe land, and subject it to sale for tbe benefit of tbe school fund was not originally cognizable in the federal courts, nor was it removable thereto, there being no federal question presented by tbe bill, and the state not being a citizen, within the judiciary act and removal laws.</p> <p>2. Same.</p> <p>Though an action could not originally have been instituted in tbe federal courts, ¡controversies therein might thereafter arise between parties thereto which would present grounds for removal.</p> <p>3. Same—Waiver.</p> <p>Where a defendant in a suit in a state court, after his application for a removal to a federal court had been denied, presented an amendment to his pleadings previously filed, which the court allowed, and thereafter prosecuted a writ of prohibition in the state court of appeals, such subsequent proceedings constituted a waiver of bis rigid to removal, and, the cause having been subsequently docketed by him ■ in the federal court, was subject to remand.</p>

<p>In Equity Suit for foreclosure of mortgage. On application foi decree of foreclosure and sale.</p>

<p>In Equity. On motions relating to order of sale.</p>

In Equity. This is a suit in equity to compel the enforcement of a loase for mining for oil and gas. The bill alleges that the defendants Bradford and wife on February 22. 1901, executed to the complainant a lease as follows: “In consideration of the smn of one dollar, the receipt of which is hereby acknowledged, It.

<p>1. Witnesses — Equity Cause — Deposition — When Taken — Refusal to Testify—Contempt.</p> <p>(aider Rev. St. U. S. § 8(>o, providing that the testimony of a witness may be taken in any civil cause depending in a district or circuit court by deposition, and supreme court rule (53, providing that such testimony may lie taken “in the cause after it is at issue,” a witness in an equity case cannot lie compelled to give his deposition before the cause is at issue; hence his refusal to so testify when subpoenaed is not a contempt of the court issuing the subpoena.</p> <p>2. Same—Commitment por Contempt—Fin ai. Order—Writ of Error.</p> <p>An order in an equity cause, committing a witness, not a parly to the suit, for contempt in refusing to testify before the cause is at issue, is final and reviewnble oil a writ of error sued out by the witness.</p>

This cause comes here upon appeal from a judgment of. the circuit court, Southern district of New York, entered upon a verdict in favor of defendant in error, who was plaintiff below. The action was brought to recover for injuries sustained in. consequence of being hit by one of the cars of defendant. He, with others, was working in the employ of a contractor, between the tracks of defendant’s road, holding a chisel to cut ou" pavement while a fellow workman struck it.

Tliis was an action brought by the plaintiff in error, hereinafter called “plaintiff,” for rent alleged to be due to it by the terms of a written lease entered into with the defendant in error, hereinafter called “defendant,” for the premises described as all the basement of the premises numbered 166. 168. 170, and 172 South State street, Chicago', excepting certain space used for steam boilers, elevators, engines, etc. The lease was executed August 26, 1897, for the term of…

<p>1. Railroads—Employes—Obvious Danger—Assumption of Risk.</p> <p>Where a brakeman who had been continuously employed in a railroad yard for over nine months was injured by falling into a drain, which, with 118 other similar drains, had plainly existed in the yard during all the time of his employment in substantially the same condition, he should be presumed to know of the existence of such drains, and to have assumed the risk thereof. 1</p> <p>3. Same—Question of Law—Jury.</p> <p>Where a certain risk of an employment is plainly observable to an employé, and he continues to work where such risk is constantly encountered, he assumes the risk, as a matter of law, and the question is not for the jury.</p>

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

<p>1. Sales—Construction' of Contract-Time of Performance.</p> <p>In determining whether stipulations as to the time of performing a contract of sale are conditions precedent, the court seeks simply to discover what the parties really intended; and if time appears, on a fair construction of the language and under the circumstances, to be of the essence of the contract, the stipulations In regard to It will be .held conditions precedent.</p> <p>2. Same—Action by Purchaser for Breach—Questions for Jury.</p> <p>Plaintiffs contracted to purchase 1,500 bales of cotton. The contract was made by telegraph, plaintiffs making an offer, to remain open half an hour, which was accepted by defendants, who stated: “Come at once. We want the money out of it;” to which plaintiffs’ agent replied: “Order cotton out at once unless it rains. Will be down soon as possible.” He was then 18 miles distant, with trains running each day between the two places. During the next three days defendants repeatedly announced their readiness to deliver, and. urged the agent to come and receive the cotton, but he did not come, and on the fourth day defendants notified him that they would not deliver the cotton. In the meantime the price was advancing. Held that, the contract being one between merchants, in which time is ordinarily of the essence, and the sensitive nature of the transaction appearing, the question as to what was the intention of the parties in reference to the time within which the contract was to be executed was one for the jury.</p>

<p>Actions at Law. On motions to vacate order for taking deposition. See iox Fed. 306.</p>

<p>Depositions—Federal Practice—Issuance of Subpceka.</p> <p>A commission will not be granted by a federal court to take testimony-in a law action when the more convenient method prescribed by Kev. St. § 863, is available. By such section the right is given to a party absolutely to take testimony in the manner prescribed, on reasonable notice, where the witness lives at a greater distance than 100 miles from the place of trial. Application for subpoena must be made to the clerk of the federal court in the district where the witness resides and the examination is to bo made, who has authority to issue it without an order of court, subject to such requirements as may be imposed by the practice prevailing in the district. In the Southern district of New York it is the practice to require an applicant for a subpoena under said section to lile an affidavit showing that a cause is actually pending, and that notice of the examination has been given.</p>

On Demurrer to Complaint. This action is brought to revive a judgment.

<p>1. Appeal—Review—Instructions.</p> <p>In an action against a railroad company to recover for the burning of cotton, where the jury was properly instructed that if defendant used the most approved spark arresters on its engines, which were at the time in good condition, and operated its engines with ordinary care and prudence, it was not liable, the failure to instruct as to the risk assumed by plaintiff in placing his cotton in close proximity to the track was not reversible error, in the absence of a properly limited request for such an instruction.</p> <p>3. Depositions—Admissibility in Evidence—Presence op Deponent in Court.</p> <p>It is error to permit a plaintiff to read the deposition . of a witness who is known to be present in court, unless for the purpose of impeachment, under proper limitations.</p> <p>3. Appeal—Review—Harmless Error.</p> <p>The erroneous admission in evidence of the deposition of a witness who is present in court is not ground for reversal, where the witness is subsequently placed on the stand by the adverse party, and testifies ' fully as to the matters covered by the deposition and in explanation of his testimony as given therein.</p>

<p>In Bankruptcy. Rule to dismiss proceedings.</p>

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

This is a case in bankruptcy, the petition having been filed by the appellants, creditors, to adjudge the appellee, the Smith & Montgomery Book & Stationery Company, a business corporation under the laws of Alabama, a bankrupt; alleging in the petition, and in an amended petition, the following acts as of bankruptcy alleged to have been committed by appellee: (1) The said bankrupt suffered or permitted, while insolvent, certain creditors to obtain preferences through legal…

<p>Petition by Collector for Review of Decision of Board of General Appraisers.</p>

<p>On Petition of Lena Schmidt Guayde for a Writ of Habeas Corpus.</p>

<p>Appeal by Wong Soo Bow from an order of deportation.</p>

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

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

<p>'Patents—Infringement—Engineer's Valve for Controlling Air Brakes.</p> <p>The'Westinghouse & Moore patent, No. 401,916, for an improved engineer’s brake-valve, designed to secure an equalization of pressure throughout the longest train pipe, so that the brakes on all the cars are released at substantially the same time where the train has been slowed down, or has made a service stop, and which is accomplished by a piston which closes the discharge valve automatically and slowly, was not anticipated, and is valid, and the device shown was the first reliable and efficient one for the purpose, and is of a high degree-of merit. The patent construed, and held, infringed by a valve made in accordance with the Vaughan and McKee patent, No. 504,290.</p>

<p>In Equity. Suit for infringement of patent. On motion for preliminary injunction.-</p>

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

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

<p>1. Patents—Reissues —Broadening oe Claims.</p> <p>The claims of a patent which has been in existence for 10 years, during which time it has been before the courts in a number of cases, and construed and held valid, cannot be broadened by a reissue to cover structures which the courts had previously decided did not infringe; and particularly where such broadening of the claims eliminates the distinctive feature of the invention, upon which alone the validity of the original patent was sustained, and of which decrees for infringement were predicated.</p> <p>2. Same—Infringement—Dampening Machines.</p> <p>The Wendell & Wiles reissued patent No. 11,727 (original No. 401,770), for a dampening machine, held not infringed.</p>

<p>Seamen—Incompetenct—Rtght oe Master to Discharge.</p> <p>The fact that a mariner is found after trial not to be competent to perform the service for which he engaged in a satisfactory manner will not justify the master in discharging him in a distant port, before the expiration of his terms of service, but he may be put to a different service, and a proper deduction may be made from his wages.</p>

<p>In Admiralty. Suit against vessel to recover for damage to cargo.</p>

<p>Admiralty—Sufficiency op Tender by Respondent—Docket Pee.</p> <p>A respondent in a suit in admiralty, wbo makes a tender and deposit at the time of filing tbe answer, is not required to include therein a docket fee, which is only taxable, under Rey. St. § 824, when the case is determined on its merits after a hearing.</p>

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

<p>Admiralty—Finding of Commissioner—Valuation of Vessel.</p> <p>The finding of a commissioner as to the value of a vessel lost in collision is entitled to great respect, and it will not be set ¿side where he acted within the bounds of reasonable judgment and upon conflicting testimony.</p>

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

This is an appeal from a decree continuing an interlocutory injunction. The case is briefly this: The appellee, the Mutual Reserve Fund Life Association, is a corporation organized under the laws of the state of New York. For many years it solicited insurance in the state of Kentucky, having complied with the law of that state in respect of the conditions upon which foreign insurance companies are permitted to do business in the state.

<p>1. Railroads—Effect of Sale under Foreclosure.</p> <p>On a sale under a decree of foreclosure of all the property and franchises of a railroad company, mortgaged by it as permitted by its charter, and the conveyance of such property and franchises to the purchaser, as directed by tile court, the company is devested of all its right, title, and interest therein, and has only remaining its franchise to exist as a corporation; and it cannot, by any act or negligence of its own, thereafter subject the property so sold, or the franchise of the corporation to exercise the rights, powers, and privileges of a railroad company in connection therewith, to liability.</p> <p>2. Federal Courts—Injunction against Proceeding in State Court.</p> <p>A circuit court of the United States is not prevented, by Rev. St § 720, from granting an injunction to stay a proceeding in a state court, where necessary to protect its own prior jurisdiction, or to render effective its own decree; and where it has rendered a decree foreclosing a mortgage on a railroad, and has sold the property thereunder, and conveyed the same to the purchaser, expressly providing in its decree of confirmation that the purchaser shall take the property and franchises as the absolute owner thereof, and free from the claims of any one claiming by, under, or through the mortgagor, it has jurisdiction, as ancillary to such suit, to entertain a supplemental bill filed by the complainant and the purchaser therein for an injunction to restrain the threatened sale of the property under an execution issued from a state court upon a judgment rendered against the mortgagor company, on a cause of action which arose after the sale and after the purchaser had been placed in possession of the property. Under such circumstances, the attempt to subject the property to the judgment against the mortgagor is in direct defiance and contravention of the decree of the federal court, and it is the duty of that court to protect its purchaser and its jurisdiction by maintaining the effectiveness of its decree.1</p>

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

The Louisville Railway Company operates a street railroad on Portland avenue, a much-traveled street, in the city of Louisville, where the plaintiff was riding on the hack of a heavily loaded wagon, being driven in an easterly direction by one Green, his employer, in the track of the defendant, on the evening of-September 22, 3899,-when-an electric ear going- in,the ¡samp direction collided with tbe wagon, throwing the plaintiff to the ground -an The court instructed the…

<p>Carriers—Interstate Commerce Law—Discrimination in Rates.</p> <p>Actual discrimination in rates charged is necessary to constitute a violation of the interstate commerce act; and the mere making or offering of a discriminating rate, under which it Is not shown that any shipment was ever made, constitutes no legal Injury to a shipper who Is charged a higher rate.</p>

<p>At Law. On motion for new trial.</p>

The plaintiff in error was the defendant below in an action of trespass o.n the case brought by Killian Coerver, as administrator, to recover damages for the death of John Coerver, his intestate, alleged to have been caused by the negligence of such defendant in the operation of its train over a street crossing in the city of Waterloo. The trial resulted in a verdict against the defendant and from judgment thereupon this writ of error is prosecuted.

Action at Law on an- Accident Insurance Policy. Trial to the court. ' The parties in this case having in writing waived a jury trial, the court, from the evidence submitted, finds the facts of the case to be as follows: (1) That the plaintiff herein was, when this action was begun, and continues to be, a citizen of the state of Iowa-, residing in the Eastern division of the Northern district of Iowa, and that he is the duly appointed and qualified administrator of the estate…

Appeals from the District Court of the United States for the District of Kentucky. Th&e appeals are brought here from the final orders of the district court, sitting in bankruptcy, refusing to allow certain claims presented by the appellants, respectively, as creditors of Simonson, Whiteson & Co., the latter having been theretofore adjudged bankrupt.

<p>1. Bankbuptcy—Acts op Bankhup.tcy—FBAtmrmENT Conveyance.</p> <p>A conveyance or transfer of property with intent to hinder, delay, or defraud creditors, which is made an act of bankruptcy by Bankr. Act 1898, § 3a (1), is the same as that made voidable by the common law, and its fraudulent character is to be determined by the same tests.</p> <p>.2. Same.</p> <p>A sale of property by an insolvent for a full consideration, which was paid in cash, is not a fraudulent transfer which constitutes an act of bankruptcy under Bankr. Act 1898, § 3a (1), although there was an intention on the part of the seller to use the proceeds in paying some creditors rather than others, which intention was carried out, nor although a small part of the proceeds was applied to the personal use of the seller, where the sale was not in fact made for the purpose of placing the property beyond, the reach of creditors.</p> <p>'3. Same—Intent to Prmekb.</p> <p>An intent to prefer is not to be confounded with an intent to defraud, nor a preferential transfer with a fraudulent one; W-hile, therefore, a man may not connive with, others to get his property out of the way by sale or otherwise, yet a fair arid open disposition of it on a full eonsideraticn cannot be given a fraudulent character, although it may incidentally have the effect of leaving nothing which creditors can get hold of, and even though the debtor do this to meet some of his obligations, rather than others.</p>

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

<p>1. Guaranty—Estoppel ok Guarantor to Deny Liability.</p> <p>A limited partnership executed its note to a bank as collateral security for such customers’ notes as the bank should discount on its indorsement, a guaranty by one of the members of the firm being indorsed, on such collateral note. Among the' notes discounted by the bank for the firm were a number which were fictitious or forged. Held*, that-the guarantor as well as the firm was bound by the representations of the latter that the notes were valid, and could not assert their invalidity to avoid liability on his guaranty.</p> <p>2. Same—Discharoe of Guarantor—Surrender of Notes.</p> <p>A limited partnership executed its note for $75,000, on which was indorsed a guaranty by one of its members. The note was delivered to a bank as collateral security for such customers’ notes as the bank should discount for the firm on its indorsement. The firm became insolvent, at which time the bank held such notes to an amount exceeding $75,000. Subsequently the guarantor delivered to the bank three notes of a third person indorsed by him, each for $25,000, and the bank surrendered to him the greater part of the notes discounted for the firm. Meld, that as between the parties such surrender operated as a payment, and discharged the guarantor from liability on his guaranty, except to the extent of the discounted notes still retained by the bank.</p>

<p>Homestead—Iowa Statute-—What Constitutes Family.</p> <p>Under Code Iowa, § 2972, providing that “tlie homestead of every family, whether owned by the husband or wife, is exempt from judicial sale,” it is not essential to the exemption that there should be one who is the head of the family, or members who are dependent; and upon the death of a father and mother, so long as their children, or any number of them, continue to reside in the homestead property as members of the same family, the homestead character continues, or a new family is created, which is entitled to homestead rights in the property; and in either case it cannot be sold to satisfy the debts of any of the heirs contracted after the decease of their parents, whether such heirs are members of the family or not.</p>

<p>1. Customs Duties—Classification—Base Bullion.</p> <p>“Base bullion,” an intermediate or provisional product in the crude reduction, of gold and silver ore, formed by smelting the same with a flux of lead ere or silver lead ore, and which is composed of gold, silver, and lead, is not dutiable, under paragraph 166 of the tariff act of 1894, covering “lead in pigs and bars, molten and old refuse lead run into blocks and bars, and old scrap lead fit only to be remanufactured,” which includes only pure lead in its different forms; nor is it within the terms of paragraph 165, fixing the duty on lead ores and lead dross and the lead contained in other ores, since it is not an ore; but it should be classified under such paragraph as a nonenumerated article “similar”' to the ores containing lead as therein described, within the provisions of section 4, in view of the intention evidenced by section 21, that metals in crude form, unless expressly exempted, should be dutiable.-</p> <p>2. Same—Protest—Time eor Piling.</p> <p>The provision of section 14 of the customs administration act of 1890, that the decision of the collector as to the duty to be paid on imported merchandise shall be final and conclusive unless protest shall be filed “within 10 days after, but not before, such ascertainment and liquidation of duties,” is peremptory, and the collector has no power to waive the same, and accept a protest filed after the expiration of the time fixedl</p> <p>3. Same—Sufficiency of Protest.</p> <p>A collector assessed a duty of one cent per pound on “base bullion,” under paragraph 166 of the tariff act of 1894, and the importer filed á protest on the sole ground that the duty should he levied and collected only on the net amount of lead contained in such bullion, the other metals contained therein being on the free list. The article was in fact not dutiable under said paragraph, but under paragraph 165. Held, that the protest was insufficient, in failing to point out the provision under which the collector should have acted, and that his decision must therefore stand.</p>

Criminal Prosecution. On demurrer to indictment. The indictment in this case charged the defendant with a violation of section 5430 of the Revised Statutes of the United States, in this: that at the time and place therein stated he “unlawfully, knowingly, and feloniously” did “have in his possession and custody, without the authority of the secretary of the treasury of the TTnited States, or any proper officer thereof, a certain obligation and security engraved and printed…

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

<p>Trade-Mark—Infringement—Refilling Gin Bottles—Injunction.</p> <p>Where distillers and selectors of gin have for many years put up and exported their gin in dark glass bottles of a distinctive size and shape, having their firm name, address, and their registered monogram trademark blown in the glass, one who refills such bottles with an inferior quality of gin, which he sells without notice that such gin is not genuine, infringes on their rights, and should be restrained, though the refilled bottles are sold at a less price than the genuine, and do not have such distillers’ monogram paper label and stamp on the cork.1</p>

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

<p>Patents—Anticipation—Trolley Rail wavs.</p> <p>The Van Depoele patent, No. 495,443, for a traveling contact for electric railways, as to claims 2, 4, 6, 7, 8, 12, and 16, was anticipated by claims in patent No. 424,695, granted to the same inventor.</p>

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

In Equity. Suit for infringement of patent. On motion for preliminary injunction. The complainant, who is the owner of letters patent, No. 337,299, granted to Charles P. Brush, March 2, 1S86, for improvements in secondary batteries, moves for a preliminary injunction restraining the defendants from infringing claims Nos. 1, 2, 3, 7, 9, 10, and 12. Pew patents have been so frequently before the courts.

<p>1. Towage—Loss or Tow—Liability op Tug.</p> <p>The obligation of a tug is to use ordinary care and diligence with respect to all matters connected with the service she has engaged to perform, and a mere error of judgment on the part of the master will not render her liable for the loss of the tow, unless the error was so gross that it would not have been made by a master of ordinary prudence and judgment.</p> <p>2. Same—Loss op Rapt—Tkmpouaey Abandonment.</p> <p>A steamship engaged to tow a large raft of timber from Puget Sound to San Francisco, and when within two days’ sail of the latter port the hawser parted, and the tow went adrift. A strong wind was blowing, and the sea was so rough as to make it unsafe, in the judgment of the master, to attempt to recover it at the time, or to remain near it during the night; and lie was also of the opinion that he could not keep it in sight if he remained, and would lose his bearings. Under such circumstances, he proceeded to a port, where he communicated with his owners, and on the next morning and for two days following he searched for the raft, but, owing to fog, was unable to find it. It was recovered three weeks later by another vessel, 450 miles southwest of San Francisco, and brought in, but in a damaged condition. Held-, that a>s it did not appear that the master erred in his judgment, or that he could have kept the raft in sight and recovered it if he had remained in the vicinity, his action in leaving it was not such negligence as rendered the steamer liable for the damages sustained by its owners.</p>

<p>In Admiralty. Action to recover demurrage and' damages for unreasonable detention of coal barges.</p>

<p>In Admiralty. Action to recover premiums on insurance policies.</p>

<p>Admiralty—Limitation op Liability—Interest where Dispense is Set Up by Answer.</p> <p>Where a shipowner in a suit in personam sets up his statutory limitation ol liability in his answer, but the vessel is not surrendered, nor an appraisement had or boAd given, he is chargeable with interest on the value of the vessel as it was at the time of or immediately after the injury sued for.i</p>

<p>1. Admiralty Jurisdiction—Maritime Contracts.</p> <p>A contract by men to act as seamen on a voyage to and from salmon fishing grounds in Alaska, to work as fishermen during the season, and assist in canning- the fish on shore and in loading- them on board for transportation, is one maritime in its nature, and which a court of admiralty has jurisdiction to enforce.1</p> <p>3. Contracts—Consideration—Performance of Legal Obligation.</p> <p>Where a person who has bound himself by a contract to render services refuses to do so unless xiaid more than the contract price, the parties may enter into a new agreement, by which an increased compensation is to be paid for the same services, and in such case' the subsequent performance of the contract by the promisee is a sufficient consideration for the new agreement.</p> <p>8. Same—Validity—Duress.</p> <p>Where persons who have contracted to render services refuse, without lawful excuse, to jierform the same unless paid a greater compensation, the employer has his election to sue- toy damages for breach of the contract, or to enter into a new and substituted contract for the payment of the compensation demanded; and the fact that the former remedy is worthless, because the employes are not able to respond in damages, and the employer is induced thereby, and to save himself from greater loss, to yield to the demands of the employes,.and agree to pay a higher compensation .for the same services, does not constitute duress which will render the new contract invalid.</p> <p>4. Corporation—Contracts—Estoppel to Deny Authority of Agent.</p> <p>Where the superintendent of a canning company in charge of its plant in a distant place assumed authority to make a contract for the employment of men, and the company received and retained the henefit of the services rendered thereunder, it is estopped to deny the authority of the superintendent to make the contract.,</p> <p>5. Settlement—Release of Claim for Wages—Effect in Admiralty.</p> <p>Contracts by men to navigate a vessel to and from Alaska, and -while there to work as fishermen during the season for taking and canning-salmon, are not, strictly speaking, for the performance of services as seamen, ’and are not within the provisions of Iiev. St. § 4552, which make releases executed as therein provided on settlement with seamen conclusive on the parties; and where such men, on their return, were offered less than they were legally entitled to receive under their contract, and were impelled by their necessities to accept the same, and to sign releases in full, which they did under xirotest, a court of admiralty will not hold them concluded by such releases, although they were signed with full knowledge of their terms.</p>

The appellant, the Niles Tool Works Company, filed an intervening petition in the consolidated foreclosure action of the Farmers’ Loan & Trust Company and John H. Barker against the Louisville, New Albany & Chicago Railway Company (for brevity called the New Albany Company) et al„ for an indebtedness contracted by the last-named company, and claimed by the in-tervener to be a preferred claim.

<p>In Equity. Suit to enjoin enforcement of assessment for street improvements. On motion for preliminary injunction and on demurrer to bill.</p>

<p>1. PRINCIPAL AND AGENT—SALES—TERMS—RlGIIT TO DETERMINE.</p> <p>Where real estate agents, for an agreed compensation, undertake to find a purchaser satisfactory to the owner, he alone has the right to determine the consideration for which he will sell and the details governing the payment therefor to him.</p> <p>2. Actions—Former Adjudication-Judgment at 1. aw—Bar to Suit in Equity.</p> <p>A real estate firm undertook to find a purchaser for defendant’s cattle ranch for a certain compensation, and, in addition thereto, all that he should receive in excess of $225,000. It found a purchaser, who agreed to pay $275,000, paying part cash and notes secured hy chattel mortgage for the balance, the deeds of the real estate being left in escrow until full payment. The purchaser defaulted, and defendant received, including cash, proceeds of foreclosure of the mortgage, and value of property restored to him, much less than the $225,000. The surviving partner in the firm sued defendant to recover the fixed compensation and also $50,000 contingent fee, and recovered judgment for the amount of the fixed compensation, hut was defeated as to the $50,000, the jury finding that defendant had not received any sum in excess of the $225,000. Held., that such judgment was a bar to an action in equity for accounting as to such $50,000, or any part thereof, as excess received hy defendant over the $225,000 for such ranch.</p>

In Equity. On final hearing. The complainant recovered a judgment against the defendant, the Davis Provision Company, in the circuit court of Illinois on the Cth day of January, 1899, for the sum of $5,049.

<p>1. National Banks—Receivers—Right to Avoid Contracts.</p> <p>The receiver óf a national bank succeeds to no rights beyond those which could have been enforced by the bank, its stockholders or creditors. He is not entitled to have a contract made by the bank, and which has been executed, set aside on the ground merely that it was ultra vires.</p> <p>2. Same—Contracts Ultra Yires.</p> <p>The receiver of a national bank cannot attack the validity of a contract by which the bank leased ground for 99 years for the purpose of building thereon, on the ground that it was ultra vires, since the bank was authorized to purchase and hold in fee real estate for certain specified purposes, and the question whether it exceeded its powers either in making the lease, or in the erection of the building, is one which can only be raised by the government.</p> <p>8. Same—Indebtedness Created by Contract—Lease.</p> <p>A contract by which a national bank leased ground for 99 years, agreeing to pay a monthly rental therefor, does not create an indebtedness for the full amount of the rental accruing during the term.</p> <p>4. Same—Suit by Receiver.</p> <p>A national bank leased ground for a term of 99 years, and expended over $300,000 in the erection of a building thereon. It occupied a portion of the building as a banking house, and rented the remainder to tenants. By a subsequent contract it surrendered the building to the owner of the land, and the lease was canceled. A receiver was afterwards appointed for the bank, who brought suit to charge the property with a lien for the money expended in the erection of the building, on the ground that the action of the bank in making the lease and in expending the money was ultra vires. No fraud was shown in the transaction, and it did not appear that any of the creditors were such when the lease was made. Held,, that the receiver, under such circumstances, had no greater rights than the bank, and that the bill stated no grounds for relief. 1</p>

<p>In Equity. On application for preliminary injunction and demurrer to bill.</p>

<p>1. Creditors’ Suit—Evidence to Impeach Conveyance—Failure to Record Deed.</p> <p>The fact alone that deeds conveying property were withheld from record hy the grantee for a number of years affords no ground for setting aside such deeds in a creditors’ suit by a judgment creditor of the grantor whose judgment was not obtained until after they were recorded, although it is entitled to consideration as evidence on the question of the bona fides of the transaction; nor does the further fact that during such time portions of the lands were sold and deeds were made to the purchasers by the grantor, who still held the title of record, sustain a claim of fraud, where it is shown that the proceeds were paid to the grantee.</p> <p>2. Vendor and Purchaser—Bona Fide Purchaser from Holder of Record Title—Notice of Unrecorded Deed.</p> <p>The president of a national bank in Iowa, who was largely indebted to it, caused a number of tracts of land in different counties in the state, which were assigned to him in the dissolution of a partnership of which he was a member, to be deeded to the bank to secure his indebtedness. The deeds were delivered to him, but were not recorded, and he thereafter induced the grantor, to convey some of the lands to himself, and such deeds were recorded. Being subsequently in urgent need of money, he induced his brother, who resided in New York, to indorse his note to be discounted, and to pay the same, receiving as a consideration á conveyance of one of such tracts of land. The brother knew that partnership lands had been conveyed .to the hank as security, hut had no knowledge that this tract was among them. HeldI, that he was not chargeable with notice of such fact, and was protected in his title, as a bona iide purchaser for 'value, from the holder of the record title.</p>

In Equity. On exceptions to master’s report in consolidated causes. The master’s report in this case shows fully the character of the case, the pleadings, the issues involved, the evidence submitted, and the conclusions reached.

In Equity. On motion for preliminary injunction. Section 1, article 9, of the constitution of 1870 of Illinois, provides: “The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax In proportion to the value of his, her or its property—such value to he ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not…

This is a suit in equity, brought by Samuel W. Steinhardt and others, judgment creditors of .Max Lazarus, against the Lazarus Jewelry Company, a corporation, and Max Lazarus. The plaintiffs are all citizens of New York, Connecticut, and other states, none of them being a citizen of Georgia. The Lazarus Jewelry Company is a corporation chartered under the laws of Georgia, and Max Lazarus is a citizen of Georgia, residing in the Southern district of Georgia.

<p>Judgment Lien—Geougia Statute—Bona Fide Puuoitasf.u.</p> <p>A pledgee of personal property, who acquires possession of the same in good faith and without actual notice of a judgment against the pledgor, is a “purchaser,” within the meaning of Code Ga. 1893, § 5355, which provides that “when any person has, bona fide and for a valuable consideration, purchased real or personal property, and has been in the possession of such real property for four years, or of such personal property for two years, the same shall be discharged from the lien of any judgment against the person from whom lie purchased,” and is protected by such provision.</p>

<p>Motion for Judgment Non Obstante Veredicto.</p>

Proceedings by the United States for the condemnation of lands as a site for fortifications for seacoast defenses. On motion to dismiss claims for damages and on demurrer to amended claims.

<p>1. Principal and Agent—Bank Checks—Fraudulent Indorsement—Notice —Negligence.</p> <p>Where a dealer in com arranged with a bank to cash the checks of his purchasing agent, such checks to be sent to ’the dealer from time to time with drafts for the amount thereof, and such agent drew and had cashed at such bank checks purporting to but in fact not representing any purchase of corn, and indorsed by himself, and bearing the fictitious indorsement of the pretended payee, if the indorsement by such agent was irregular it was the duty of such dealer, on the first of such checks being sent to him by the bank, to have notified the bank' of such fact, and until so notified the bank was not negligent in reeeiv-ing and paying such checks.</p> <p>2. Same—Duty op Principal.</p> <p>Where a dealer in corn arranged with a bank to cash the checks of ’ his agent given for the purchase of corn, and each check bore a memorandum of the amount purchased, the truthfulness of the memoranda could at any time have been tested by such dealer by inspecting the corn in the cribs, but it was no part of the duty of the bank, and it could not be held responsible if some of the checks so drawn and cashed by it did not represent actual purchases.</p> <p>3. Banks—Depositor—Relationship—When Existing.</p> <p>Where a dealer in corn made an arrangement with a bank to cash the checks of his agent given for tiie purchase of corn, the bank to be repaid the amount so advanced from time to time on drafts on the dealer, and at the time of making such arrangement he deposited a small sum in the nature of indemnity against its advancements, such deposit did not create the relationship of banker and depositor between them.</p> <p>4. Fraud op Agent—Loss to Innocent Parties.</p> <p>Where a dealer in corn arrang-es with a bank to cash the checks of his agent given for the purchase of com, and such agent issues checks purporting to but in fact not representing such purchase, and the.- hank in good faith cashes such checks, and there is no negligence on the part of such banker, the loss must fall on the dealer, who, by his selection of such agent, made the loss possible.</p>

<p>Ai’peau—-Review—Discbbtionaky Rulings.</p> <p>Tlie action of a trial court in denying a motion to open a default is not subject to review unless an abuse of discretion is clearly shown.</p>

<p>In Eiror to the Circuit Court of the United States for the Southern District of Ohio.</p> <p>The defendant in error (plaintiff below, hereinafter referred to as p1ahitiff~, through a correspondence by telegraph dispatches and letters, agreed to furnish 23,000 feet of Italian marble tiling to the plaintiff in error (defendant below, hereinafter called defendaut~ for 33 cents a foot. This tiling was needed by the defendant for the fulfillment of ,a contract he had with the -county commissioners of Washington cr,unty, Pa., to furnish and lay this tile ancl perform other marble work in a court house in that county. The defendant ordered and had shipped about January 29, 1900, 10,001.5 feet, on February 21, 1900, 5.208.5 feet, and on February 27, 1900, 4,542.5 feet of tile on the contract, after which no more tile was furnished. In January, before any tile was shipped, the plaintiff wrote, asking about the, manner of payments, and on January 1(5, 1900, the defendant -wrote that he expected to pay as he received estimates on the work, or, if the plaintiff preferred, he would give an order- on the county commissioners for the amount of the bill; and he added that, as he had never sublet any materials in his work before, ho was ignorant of the custom in making settlements in this respect. The defendant gave an order to the plaintiff on the county commissioners, which they refused to accept, and another tn the American Bonding & Trust Company, surety in the contract of defendant with the county commissioners, which it refused to accept. On May 10, 1901, the county commissioners, alleging that the defendant was not carrying on his work in a prompt and diligent manner, declared his contract forfeited under its provisions, and afterwards they let the contract to other parties. The plaintiff endeavored to get a settlement with the defendant, hut could not get any communication from him, or excuse why he did not pay its account, until July 20, 19CO, when it began this suit to recover the price of the tile furnished under the contract. The answer and cross petition, after a general denial, set up, by way of counterclaim, an alleged conspiracy between the plaintiff and < tilers with the county commissioners and architect to prevent the defendant from carrying out his contract, and alleged that the county commissioners, “pretending that the defendant was unable to finish his contract within the time fixed by his contract with said commissioners, by reason of not having sufficient material there, the said commissioners declared the said contract forfeited.” This defense, by way of counterclaim, was stricken out on motion, and an amended answer was filed, in which the contract was set out for delivery of 23,000 feet of tile within 30 days from December 12, 1899, to he i>aid for out of estimates upon the building in which the tiling was to he put, and a denial that the 23.000 feet were delivered, and, for a second defense, the counterclaim was repeated, leaving out the allegations of conspiracy, and alleging that the plaintiff “did not furnish said twenty-three thousand feet, but only furnished eighteen thousand two hundred and nineteen feet and three inches, quality conforming to the contract, which was jmt in said building, and then declined to furnish any more,, and thereupon, alleging that the defendant was unable to finish his contract within the time fixed by the contract with said commissioners by reason of not having sufficient material there, and his Inability to get it in lime, the said county commissioners declared the said contract forfeited.” A third and partial defense, that 2,55(5 feet of the tile, worth $052.08, wore defective, was added. The plaintiff replied to this answer and cross petition, denying that the tile were to be delivered within 30 days, and, if such were the agreement, it was waived and modified at the request of the defendant, and denied that payment was to he made out of estimates, and averring a willingness to didiver 23,000 feet of tile upon performance of defendant's obligation to pay for tile already delivered. The motion made to strike out these allegations of the reply was denied. At the trial the. court declined to allow the defendant to show that there was a well-defined custom that payments for material were to he made from the first estimates received by the contractor. The second defense was taken from the jury, and they were directed to return a verdict for all of the tile not defective that were furnished by the plaintiff at the contract price. The jury returned a verdict deducting the am; unt claimed for defective tile, and the judgment based on this verdict is brought here on a writ of error.</p>

<p>1. Building Contract—Architect’s Certificate.</p> <p>Where a building contract provided for a certificate by the' arehitectsv on failure of a contractor, authorizing the owner to terminate the contract, a certificate given by one claiming to be the overseer and contractor for the architects was insufficient for that purpose, where there ■was no evidence that he occupied such position, or was authorized to act for them in such a manner.</p> <p>2. Forfeiture.</p> <p>Where a building contract provided that, if the architects should certify that a failure of the contractor was sufficient ground for such action, the owner should be at liberty to terminate the contract, such certificate should be made only on the knowledge of the architects; and a certificate reciting that it is based on .information received from the owner’s agent is insufficient to justify a forfeiture.</p> <p>3. Same—Notice—Sufficiency.</p> <p>Where a building contract provides that in a certain contingency the owner may either enter on the premises and take possession, for the purpose of completing the work, of all tools and appliances thereon, or , employ any other person to finish the work and to provide the materials therefor, a notice that the contract is declared terminated, and that the owner-will take possession of the premises for the purpose of completing the work, is not sufficient to justify the taking of the contractor’s materials.</p> <p>4. Same—Bankruptcy—Materials of Bankrupt Contractor — Right of Owner.</p> <p>A. building ^contractor, having a large quantity of materials on the ground intended for the building, was adjudged a bankrupt, on his voluntary petition, two days after the owner had declared the contract terminated, and two days before such owner took possession of such material, claiming the right to do so under the provisions of the contract, which had not been recorded. Heidi, under Bankr. Act, § 67a, providing that claims which, for want of record or for other reasons, would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens as against his estate, that such owner had no ri^-ht to such materials as against the trustee.</p> <p>5. Same—Advance by Owner—Lien.</p> <p>Where the owner of a building advanced more money to the contractor than was required by the contract, believing that the material on the ground was sufficient security therefor, but took no possession of such material until after the contractor was adjudged a bankrupt, such owner acquired no lien on such material by reason of such advance, as against the trustee.</p>

The Columbia Real Estate Company, an Indiana corporation, was adjudged a bankrupt on the petition of three creditors,—Henry A. Taylor, the Rurt-Terry Stationery Company, and the Henry Taylor Lumber Company,— alleging the insolvency of the corporation, "and that it has admitted in writing its inability to pay its debts and its willingness to be adjudged a bankrupt on that ground.” An adjudication of bankruptcy was entered on March 2, 1900, being the same day the petition…

<p>In Bankruptcy. On motion of William Deering & Co. to dissolve • restraining order.</p>

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

<p>1. Bankruptcy—Examination of Third Party—Relevancy—Question for Court.</p> <p>Where, in proceedings under the bankruptcy act, a third person is examined as a witness concerning certain property, with a view of ascertaining what, if any, interest the bankrupt has therein, such witness has not the right, after testifying that the bankrupt has no> interest therein, to refuse to answer any further questions relating to such property on the ground that the inquiry is irrelevant and immaterial; the question of relevancy and materiality being one for the court.</p> <p>2. Same—Attorney and Client—Privileged Communications.</p> <p>Where, in. proceedings under the bankruptcy act, a third person, who is an attorney, is examined as a witness for the purpose of ascertaining what, if any, interest the bankrupt has in certain property, the question •whether certain communications are privileged, as between the witness and his clients, must be determined by the court, and not by the witness.</p> <p>3. Same—Relevancy and Materiality—Rule for Examination.</p> <p>In the examination of a third person under the bankruptcy act, to ascertain what, if any, interest the bankrupt has in certain property, on objection or refusal to answer on the ground of irrelevancy, if the</p> <p>■ question asked appears to be relevant, it should not be excluded, or the witness be excused from replying to it, because of his assertion that his answer, if made, would disclose the personal affairs of himself or of others, not material to the subject of the inquiry.</p> <p>4. Same—Privileged Communication—Rule for Examination.</p> <p>Where an attorney, being examined as a third person under the bankruptcy act, declines to testify on the'ground that the matter sought to be discovered came to his knowledge in professional confidence, he is, by way of preliminary investigation, to be subjected to such interrogation as may be necessary to enable the court to determine for itself whether the communication referred to be, under the circumstances, a privileged one, and thereupon to make such order as may be proper.</p>

<p>Bankruptcy—Administration of Estate—Paytno Out Funds.</p> <p>Bailin'. Act 1898, does not authorize a referee to order a trustee to pay out funds, nor the trustee to j>ay out funds on such an order, but under general order 29 (32 O. G. A. xxviii., 89 Fed. xii.) it is the duty of the trustee to deposit all funds of the estate in a designated depository to the credit of the court or judge, designating the estate to which they belong, and such funds can only be paid out on checks countersigned by the judge, or some person designated by him. The paying out of funds in any other manner is irregular, and, under rule 10 of the district court for the Eastern district of North Carolina, subjects both trustee and depository to liability on their bonds and to attachment for contempt.</p>

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

<p>Bankruptcy—Powers op Court—Enforcing Claims against Exempt Property.</p> <p>A court of bankruptcy has no power to enforce claims against property of a bankrupt exempt as a homestead under the laws of Georgia, and set apart as such by the trustee, although based on notes in which the right of exemption is waived; but where the bankrupt has failed to obtain a discharge, and the time therefor has passed, such creditors will be permitted to -withdraw their claims for the purpose of pursuing their remedy in the state courts.</p>

<p>In Bankruptcy. On application by bankrupt for restraining order.</p>

<p>Bankruptcy—Lien—Yaridity op Mortgage.</p> <p>The agent of a wholesale firm procured a third person to lend a merchant sufficient money to pay a debt he owed the firm, taking a mortgage on the merchant’s stock. The lender and borrower were unacquainted, and the lender refused to make the loan unless a member of the firm would give him a bond to indemnify him against loss, which was done. Although there was no specific agreement, the lender understood that the firm was to get the money lent, which it did. The agent testified that he supposed the debtor to be solvent, as he represented himself to be, but he was in fact insolvent, and was adjudged a bankrupt a month later. Held, that the effect of the transaction It the morfc-gage was enforced would be to enable the firm to obtain a preference indirectly which it could not have obtained, if the mortgage had been taken to itself, and that the mortgagee would not be permitted to enforce the mortgage until he had exhausted his remedy on the bond, if at all.</p>

<p>In Bankruptcy. On exceptions to report of special master.</p>

<p>1. Bankruptcy—Perjury of Bankrupt—Discharge.</p> <p>Under Bankr. Act, § 29, making a false oath by any person in any proceeding in bankruptcy an offense punishable by imprisonment, and section 14, providing that a discharge may be granted to a bankrupt unless he has committed such an offense, a bankrupt who has intentionally testified falsely respecting a material fact at the first meeting of creditors is not entitled to a discharge, though he could not be convicted of perjury because of the provisions of section 7 that no testimony given by him at any such meeting shall be offered in evidence against him in any criminal proceeding; the application for discharge . not being a criminal proceeding.</p> <p>2. Sake—Evidence.</p> <p>Where a bankrupt testified at the first meeting of his creditors that at the lime ho conveyed certain property to his wife he did not know a certain suit had been decided against him, such testimony is not shown to be false by proof that on the day the conveyance was made notice of the decision was published in a newspaper, for which he was a subscriber, in the county in which he lived, and was mailed to him so that it should have reached him that day.</p>

<p>Customs Duties—Exemptions—Surgical Instruments for Hospital.</p> <p>A hospital, ■with incidental educational features, such as the training of nurses and the instruction of medical students, is not an “institution incorporated or established solely for * * * educational * * * purposes,” nor a “college, academy, school, or seminary of learning,” within the meaning of paragraph 638 of the tariff act of 1897; and surgical' instruments or appliances imported by such a hospital for its use are not entitled to admission free of duty under said paragraph.</p>

This is' an appeal from a judgment affirming a decision of the board of general appraisers and of the collector of the port. See 103 Fed. 619; 105 Fed. 766.

The appeal in this case is from an interlocutory decree entered December 18, 1900, finding the appellee to be the sole and exclusive owner and. proprietor of the trade-mark, “Pancreopepsine”;’ that such a name is a good, valid and legal trade-mark when applied to a digestive preparation, as ap-pellee has applied it; that appellants in the use of a similar digestive preparation, designated “Pancro-Pepsin”, infringed appellee’s exclusive rights to such trade-mark; and…

<p>Patents—Suit for Infringement—Right of Appeal from Interlocutory Decree.</p> <p>An appeal does not lie by a complainant from an interlocutory decree dismissing a bill for infringement of a patent as to certain claims of tbe patent, but sustaining it, and directing an accounting as to others.</p>

<p>Patents—Infringement—Medicine Gash.</p> <p>Odie Qundelach patent, No. 526,486, for a medicine case, discloses patentable novelty, if at all, only in the single feature of so arranging the leaves which hold the vials that their hinges are pivoted on a common pin, and must be limited to such a structure. As so limited, held not infringed. ■ ;</p>

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

<p>Admiralty—Appeal—Failure to Secure Proper Transcript op Record. An admiralty suit will not bo remanded for a new trial by an appellate court, or to take new' testimony, on the ground that the record is incomplete, where such fact results from the failure of appellant to exercise due diligence.</p>

<p>In Admiralty. Actions to recover for salvage services.</p>

<p>Tug and Tow—Loss on Tow—Negligent Navigation by Tug.</p> <p>A tug undertook to tow two barges laden with coal across New York Bay from a safe anchorage at Constable Hook at a time when the wind was blowing at a rate between 50 and 60 miles an hour and had been increasing for several hours, and one of the barges swamped and was lost, with her cargo. Helé, that the tug was in fault for negligently attempting to cross under such circumstances, and liable for the loss, and that, the movement being controlled by the master of the tag, the barge was not guilty of contributory fault because her master failed to object to the attempted passage.</p>

The Atchison. Topeka & Santa F6 Railway Company, complainant below, appeals from a decree of the circuit court sustaining demurrer to its amended bill for want of equity, and thereupon dismissing the hill, which is filed to enjoin the construction and operation hy the appellee, the General Electric Railway Company, of a proposed street railroad in Dearb rn street, in the city of Chicago, “over, across, or in the vicinity of the tracks” used hy the appellant “in" said…

<p>1. Corporations—'Mortgage—Ultra Vires—Estoppel.</p> <p>Where a corporation borrows and retains money from another corporation, and executes a mortgage of its property to secure such loan, it will not be permitted to deny its power to mortgage its property or the power of the lender to .hold.such security.. ,</p> <p>S. Same—Conveyance of Its Property.</p> <p>Where a corporation executes a deed to, and delivers possession of all its property to, another corporation, which in consideration therefor assumes all the debts of the grantor, and discharges them in part and repudiates none, such grantor will not be permitted to assert that it had not power to make the conveyance, and retake the property.</p> <p>S. Mortgage—Foreclosure—Receivers’ Certificates.</p> <p>Where, in an action to foreclose a mortgage, there is a question as to whether certain receivers’ certificates are liens superior or inferior to the mortgage, such question will be considered and determined after the proof is taken and cause submitted on the merits, and not on demurrer, in such action.</p> <p>4. Corporation—Stockholder—Action to Set Aside Deed.</p> <p>A stockholder in a corporation cannot question the deed of the company, in the absence of showing that the corporation itself lias failed, after a proper application to it, to bring suit to set the deed aside.</p> <p>5. Pleading—Inconsistent Positions—Exceptions to Answer.</p> <p>Where, in an action to foreclose a mortgage, a defendant by answer sets up certain contracts and certificates on which he bases his rights, and in a cross bill alleges that such contract and certificates are void, and asks their annulment, exceptions to such answer should be sustained.</p>

<p>1. Municipal Corporations—Improvement Ordinance—Nonresident Property Owners.</p> <p>Properly within the limits of a city, owned by a nonresident, may be dealt with by the city as though it belonged to a resident, and the owner is bound to take notice of an ordinance affecting such property, when it has been duly promulgated as required by law, whether state or municipal.</p> <p>2. Judgments—Persons Concluded—Representation by Members of Same Class.</p> <p>A judgment of a state court sustaining the validity of a municipal ordinance for the widening of a street, rendered on an appeal taken from sucli ordinance hy property owners affected, as permitted by a statute under which the decision Oi. the court on sueli appeal is final, is conclusive not only on the parties, but also on all other property owners similarly affected, and who might have become parties, and is a bar to a suit subsequently brought in a federal court by one of such property owners, who is a citizen of another state, to have the ordinance declared invalid.</p>

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

<p>Motion to Take Off Nonsuit.</p>

<p>1. Taxation—Assessment by Court—Act op Legislature—Constitutionality.</p> <p>The act of the Kentucky legislature approved March 18, 1878, and the amendatory act approved February 27, 1882, authorizing a court, in certain contingencies, to assess the taxpayers of Taylor county, and enter and enforce judgments against them, to collect a judgment of such court recovered-on bonds of such county, do not exceed the constitutional powers of such legislature.</p> <p>2. Same—Federal Court.</p> <p>The powers granted by acts of the Kentucky legislature approved March 18, 1878, and February 27, 1882, authorizing a court in which a judgment is recovered against Taylor county on county bonds to assess the taxpayers to collect such judgment, may be exercised by a federal court.</p> <p>8. Same—Notice—Due Process op Law.</p> <p>Act Ky. Feb. 27, 1882, providing that the commissioner appointed by the court to assess a tax shall file his list and give notice by three weeks’ publication of such filing, and that any person interested may except thereto within thirty days, furnishes due process of law.1</p> <p>4. Same—Irregularities—Objections—When too Late.</p> <p>Under Act Ky. Feb: 27, 1882. authorizing a court in which a judgment is recovered on bonds of Taylor county to assess and collect a tax to pay such judgment, objections to irregularities and inequalities in such assessments come too late after judgment thereon has been entered.</p> <p>5. Statutory Construction—Mandatory or Directory Provisions.</p> <p>When a statute gives a new and extraordinary remedy, and directs how the right to the remedy is to be acquired or enjoyed, the act should be strictly construed, and the steps pointed out for the enjoyment of the remedy provided should be construed as mandatory, rather than directory or optional.</p> <p>6. Taxation—Stipulation in Bonds—Extraordinary Remedies.</p> <p>Under Act Ky. Feb. 27, 1882, amending Act March 18, 1878, authorizing a court in ‘which judgment is recovered on bonds of Taylor county to assess and collect á tax to pay such judgment, making such judgment a lien on realty and personalty, and providing in section 10 that bonds to be issued thereunder “shall on their face stipulate” that the holders shall be entitled to the remedies for the collection In such acts provided, the holders of such bonds only as contain such stipulation are entitled to such extraordinary remedies.</p>

Charles H. Horn and Wilson S. Horn, of the state of Ohio, J. M. 0. Horn, of the state of Washington, Clatonia Wright, of the state of Minnesota, and Mrs. Sidney K. Swander, of the state of Illinois, were each made legatees under the will of Joseph Horn, of Baltimore, in the state of Maryland; and each was also entitled, as heir at law, to share in the distribution of the estate.

' Prior to January, 1897, Joseph Horkey, being the owner of a stock of merchandise contained in a store in Creighton, Neb., executed a mortgage upon the same to secure the payment of an indebtedness due to one Cheney. The property conveyed by the mortgage was afterwards, in January, 1897, sold under a power of sale therein contained, and purchased by one Bone-steel, who afterwards, in March, 1S97, sold and delivered the same to Belle Miller, the defendant in error.

The action is in assumpsit, brought by the defendant in error, the Linstroth Wagon Company, for brevity called the “Wagon Company,” against the plaintiff in error, the Illinois Car & Equipment Company, for brevity called the “Car Company,” to recover damages for default in the performance of a contract dated January 21, 1899, by which the Oar Company agreed to furnish the Wagon Company its season’s supply of merchants’ bar iron, not to exceed 300 tons, at $1.12 rate,…

<p>Sale—Construction of Contract.</p> <p>Bought and sold notes, evidencing a contract for the purchase and sale of goods to be manufactured by the seller, contained a line reading: “Delivery: Dec., ’98, & Jan., ’99;” the word “delivery” being printed. Immediately below, and close to such line, was printed in small type the provision; “Barring fires, strikes & other unavoidable casualties.” Helé, that such provision applied only to the time of delivery, and that a strike which kept the seller’s mill closed during December and January did not terminate the contract, but left the seller bound to deliver the goods within a reasonable time thereafter.</p>

At Daw. On demurrer to amended declaration. Damages for breach of two contracts. In the one plaintiffs agreed to use defendant’s patented compress for making round lap cotton bales. In the other defendant agreed, at fixed graded prices, to buy all the cotton compressed by the plaintiffs.

<p>1. Taxation—Jurisdiction of State—Situs of Personal Property.</p> <p>To enable a state to impose a valid tax upon personal property, it must have jurisdiction over the owner, or the property must have acquired a situs therein, separate from the owner’s domicile, for the purposes of taxation.</p> <p>2. Same—Registered Vessels Engaged in Interstate Commerce—Situs for Taxation.</p> <p>Vessels engaged in interstate or foreign commerce, owned by a corporation of a state, which are registered under the laws of the United ■States, and have the name of their home port in such state painted on their stern, as required by Rev. St. §" 4178, hare their situs, for the purposes of taxation, at such home port, and cannot be taxed as property in another state.</p>

<p>1. Bankruptcy—Adjudication on Default^- Conclusiveness.</p> <p>An adjudication of involuntary bankruptcy duly entered on default for want of an' answer to the petition is as binding on the bankrupt and creditors as one entered upon a hearing, and is conclusive of the commission of the acts of bankruptcy charged in the petition.</p> <p>2." Same.</p> <p>A petition for involuntary bankruptcy was filed against a corporation, alleging as one act of bankruptcy that the corporation, on a date named, and within four months, suffered and permitted, while insolvent, a creditor to obtain a preference through legal proceedings, by obtaining a judgment by confession, on which an execution had been issued and levied on property of the corporation. An injunction was prayed for, and issued, restraining a sale under such execution. The judgment creditor appeared and moved to dissolve the injunction, and by agreement it was modified to permit the sheriff to sell the property and pay the proceeds into court, to abide the adjudication of the rights of the parties. Neither the bankrupt nor the judgment creditor answered the petition, and an adjudication of bankruptcy was subsequently made by default, in due form. Held:, that the adjudication was binding upon the judgment creditor, and conclusive upon the question of the insolvency of the bankrupt on the date when his judgment was taken, and hence of the illegality of the preference thereby obtained.</p>

<p>In Bankruptcy. On exceptions to report of referee.</p> <p>The West Norfolk Lumber Company was on the 21st day of August, 1900, at the instance of its creditors, duly adjudged an involuntary bankrupt, the said company having been engaged since 1894 in the operation of a plant,situated at West Norfolk, Va., for the manufacture of rough lumber into flooring, ceiling, box. shooks, and other dressed material. On the night of the 11th of May, 1900, the plant, together with a large portion of the lumber on hand, was consumed by fire. At the time of the fire, and for several years prior thereto, the lumber company was indebted to the Farmers’ Bank' of the State of Delaware, at Georgetown, in a large amount, for money borrowed by the lumber company, originally for the purpose of repairing its plant, .and from time to time for the general conduct of .its business. • At the time of the fire1 the indebtedness amounted to $58,434.56, evidenced by notes of tlie company discounted at the bank, and by bills receivable assigned or discounted with the bank theretofore. This indebtedness was secured by policies of insurance issued upon the property of the company, which, by agreement; between the batik and the company, had been made payable, in case of loss by fire, to the bank, as its interest might-appear. The company was also indebted to the Merchants’ & Farmers’ Bank of the City of Portsmouth in the sum of $5,000, evidenced by a promissory note to the bank, secured by a deed of trust on the land and buildings of the lumber company, duly recorded, and also by two certain policies of insurance on the buildings of said company, aggregating $3,000, made payable to the trustee in the deed securing the bank’s debt, as his interest might appear. After the fire, to wit, on the 24th day of May, 1900, the Gray Dumber Company filed in the clerk’s office of the county court of Norfolk county a memorandum showing the amount and consideration of the claim held by it against the lumber company, and claimed a prior lien under sections 2485 and 2480 of the Code of Virginia, as amended, on all the property, real and personal, of the said company, other than that forming a part of its plant, to the extent of the money due them for supplies claimed to have been furnished the company, necessary to its operation. Shortly after . the filing of this lien, other creditors of the company, claiming liens under the said sections of 1he Code of Virginia, filed similar memoranda against said lumber company. Subsequent to the filing of these liens, and before tlte bankrupt proceedings were inaugurated, the insurance companies having policies of insurance on the property of the defendant company paid to the Bank of Delaware the sum of $11,806.56, and to the Portsmouth bank 81,178.34, which amounts the said banks, respectively, applied, as credits upon the debts due to them; and since the adjudication of bankruptcy the said insurance companies have paid into court on account of policies of insurance held hy the Delaware bank $18,316.49, and on account of the Portsmouth bank $1,179.34,— -said last-named amounts having been so paid by agreement between the bankrupt’s trustee, the insurance companies, and the banks, respectively, that it was to be without prejudice to the rights of any of the parties in interest.</p>

In Bankruptcy. When the voluntary petition in this case was filed, the bankrupt was a general merchant at Tiptonville, Tenn., dealing largely in cotton purchased by him and acquired from tenants to whom he had made advances on their crops, just being gathered and marketed. Also he was himself a planter owning large and numerous farms, growing cotton and other crops on the shares and otherwise.

Peter Peterson, claiming to be a creditor of the Union Feather & Wool Manufacturing Company, for brevity called the “Company,” for services as secretary and treasurer of the company, to the amount of $1,615.3-0, Frederick W. .Alwart, a creditor of the company for goods sold to the amount of $580.40, and the Star Oil Company, a creditor of the' alleged bankrupt for goods sold to the amount of $16.58, on January 28, 1901, filed their petition in the bankruptcy court, which, as…

<p>In Bankruptcy.</p>

<p>Information in Forfeiture. Suit for forfeiture of goods under the provisions of section 9 of the customs administrative act of June 10, 1890.</p> <p>The merchandise in question, to wit, 19 bales of tobacco, was imported from Mexico. The invoice presented to the collector of the port, and upon which entry was made, contained among other things the following language: “Bought as fillers and to be sold as fillers.” The government examiner reported that the tobacco was not in fact “fillers” but “wrappers.” Fillers are subject to a duty of 35 cents a pound, and wrappers to a duty of $1.85 á pound. These facts were reported to the collector, who thereupon directed that the merchandise be seized, on the ground that the goods had been entered by a false and fraudulent invoice, in that the character of the merchandise.had not been correctly or truthfully stated.</p> <p>: The government thereupon filed an information against the goods, and Julio J. Ordetx appeared and filed a claim and answer.</p> <p>. The government put several witnesses on the stand, all of whom testified that each of the bales of tobacco contained more than 15 per cent, wrapper tobacco, which under the provisions of the tariff act subjected the contents of the entire bale to wrapper duty.</p> <p>The foregoing, fact was not controverted by the claimant.</p>

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

Sur rule for judgment non obstante veredicto on reserved point. Action at law to recover of the defendant, as collector of internal revenue, stamp taxes paid under protest.

<p>acting for and on behalf of the demanding government herein, the empire of Russia.</p>

<p>Jurisdiction—Amount in Controversy—How Determined.</p> <p>In an action for recovery of money only, the amount of damages claimed determines the jurisdiction, unless the declaration on its face shows such amount is claimed in bad faith, and merely to give a color-able jurisdiction.1</p>

This is an action brought by the plaintiff in error against the Lonisville .& Nashville Railroad Company in the circuit court of Campbell county, T.enn.; to recover damages for personal injuries sustained by him from the alleged negligence of the company while he was in its employ as a brakeman.

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

<p>1. Corporation—Incumbered Assets—Transfer to Other Company—Pledge of Stock Received—Directors—Power.</p> <p>Whore the stockholders and directors of a solvent corporation, pursuant to a scheme of voluntary dissolution, have, hy resolutions, determined that the corporate assets shall he transferred, after payment of debts, to another company, in consideration of stock of the latter, -which is to pass to trustees to be distributed proportionately among the stockholders, and the contract between the companies provides for a transfer of the assets of the dissolving company free from incumbrances, the directors have the authority to pass a resolution empowering the trustees to pledge the stock received from the purchasing company to the holders of the dissolving company’s mortgage bonds, in order to free the assets of the latter company.</p> <p>2. Same—Trustees—Fulfillment of Pledge—Misapplication of Funds.</p> <p>The action of the trustees in so pledging the stock of the purchasing company, and in afterwards applying the proceeds of sales thereof to the satisfaction of the corporate debts so secured, is not, as against a subsequent judgment creditor, a misapplication of funds.</p> <p>8. Same—Principle of Pro Rata Distribution—Applicability.</p> <p>In view of the initial solvency of the dissolving company, and the resolution of its directors authorizing the pledge of the purchasing company’s stock to free the corporate assets from the mortgage lien, the principle of pro rata distribution among creditors does not apply, notwithstanding the other resolutions providing for the payment of debts.</p> <p>4, Same — Pledged Stock — Sale — Subsequent Purchase by Trustee — Breach of Trust.</p> <p>The purchase by one trustee of stock of the purchasing company after its sale hy the trustees to a third person, made in good faith at the suggestion of such third person, and wholly disconnected from the execiition of the trust, and not in contemplation when a transfer to the third person was made, will not render the trustee personally liable to unsecured corporate creditors, though the shares were assigned directly to him without passing through the third person’s hands.</p>

<p>Equity—Bill of Complaint—Licensee—Violation of Rights—Demurrer.</p> <p>Plaintiff’s bill alleged, that he was exclusive licensee for the use and subletting of phonographs and sale of appliances therefor, covered by the Edison patents, throughout the state of New York, and that defendant was using and subletting iihonographs and selling appliances therefor made by others connected with the licensors and bound by the terms of the license. The bill then set out the manner in which those supplying defendant were connected with and acting under plaintiff’s licensors, and manner in which the license was violated. Held, on demurrer, that the bill shows an unjustifiable invasion by defendant of plaintiff’s rights.</p>

<p>1. Interstate Commerce—Violations of Act—Remedies—Exclusive—Injunction.</p> <p>Interstate Commerce Act, § 3, requires every common carrier, subject to the provisions of the act, to afford all proper and equal facilities for the interchange of traffic between their respective connecting lines. Section 8 makes every such carrier liable, to the person injured by the violation of any provision of the act, for the damages sustained thereby. Section 9 provides that any person claiming to be so damaged may either make complaint to the commission, or may bring suit for the recovery of such damages, in a district or circuit court of the United States. Section 16 authorizes a resort to equity to enforce the commission’s rulings. Helé, that the remedies provided by sections 8 and 9 of, the act are exclusive, and hence a bill for injunction to compel obedience to section 3 will not lie.</p> <p>2. Same—Preliminary Injunction—Doubtful Right.</p> <p>Where, in an action against a railroad company, which has a stock yard in a certain city, to compel it to deliver stock shipped over its r 'ad to such city to a connecting carrier to take to another stock yard therein, defendant has answered, and complainant’s right to a preliminary injunction is not practically free from doubt, it should not be granted.</p>

<p>1. Common Carriers—Goods—Dei.ay—Contraband op War.</p> <p>Tire receiver of a railroad company having a contract with a Pacific steamship company for interchange of traffic accepted a quantity of pig lead to be carried to Japan, and received the freight therefor, delivering to the shipper a bill of lading “subject to delay.” The lead was forwarded to Tacoma, and seasonably put on board a steamship about to sail for Japan, when the deputy collector refused to clear the vessel with the lead on board, as contraband of war, China and Japan then being at war. The lead was therefore unloaded and left, and was not delivered at Japan until its value there was considerably reduced. Helé, that the receiver was not liable for the damage resulting from such delay.</p> <p>2. Same—Clearance op Vessel—Nature op Shipment.</p> <p>While it may be the duty of a common carrier receiving freight for transportation by rail and beyond the seas ordinarily to provide for the clearance of the vessel in which the goods are to be shipped, the shipper cannot eomplain of failure to obtain such clearance when it is prevented by tbe nature of the shipment.</p>

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

<p>1. Courts—Several Actions—Jurisdiction.</p> <p>Wiiere a railway system, composed of several companies, with continuous lines, extending through several states, is sued by the same stockholder or his privies in separate proceedings in different judicial districts of the United States, to defeat consolidation and break up the system, a proper regard for the dignity and authority of the United States courts demands that the controversy should be disposed of in the first United States court having sufficient jurisdiction of the parties and cause of action.</p> <p>2. Same.</p> <p>In the matter under consideration it appears that the complainant and those acting with him have presented bills in several circuit courts of the United States along the line of the respondent’s system, seeking to take the chances of a possible difference of judicial opinion, when the rights in controversy could have been properly determined in the circuit court of the United States for the Fourth circuit, sitting in the Eastern district of Virginia. The evil of this practice discussed.</p> <p>8. Same—Temporary Injunction.</p> <p>There are cases where each court must exercise its independent juris- ■ diction and render its independent decree, but it should be a very strong case which would justify a court of the United States 'to grant a temporary injunction when given sufficiently to understand that another such court, with concurrent jurisdiction, upon a plenary bill, has full charge of the same controversy, between the same parties or their privies, or has refused such an injunction.</p> <p>4. Railroads—Consolidation.</p> <p>Under the general railway law of Georgia, proper corporate action for the purpose of merger and consolidation of railroads is a majority vote of the stock of the corporation. Code Ga. § 2179; Alexander v. Railroad Go., 33 S. E. 866, 108 Ga. 151.</p> <p>B. Same—Voting Trust—Merger.</p> <p>Where an officer of a corporation is also a member of a voting trust, a merger or consolidation brought about through his vote is not necessarily void; but the burden is on the interest for which he acts to show that the transaction was free from any taint of wrongdoing, bona fide, lawful, and for a fair consideration to the parties at interest.</p> <p>6. Same—Creation of Monopoly.</p> <p>Where separate lines of railway start out at a right angle from a seaport, transport freight and passengers from widely-separated sections of two states, and no point on either road can be reached in any reasonable time by a passenger starting out on the other, such consolidation does not tend to defeat competition and create monopoly merely because both lines cross two shallow rivers, on which steamboats carrying freight and passengers occasionally ply. This is especially true since the streams in question are also spanned by three other strong railway systems.</p> <p>7. Same—Injunction.</p> <p>The injunction sought in this ease refused.</p> <p>(Syllabus by the Court.)</p>

<p>Executors—Actios on Life Policy—Prior Adjudication—Claim Merged in Judgment.</p> <p>In an action, by the administrators of the estate in New York of one who died in the Hawaiian Islands, to recover on a policy on the life of deceased payable to. his administrators, defendant pleaded that a prior administrator at Honolulu, having possession of the policy on proofs of death, in a prior suit brought thereon in the circuit court of the First circuit of the territory of Hawaii, on appearance had recovered judgment against defendant for the amount due. Held, that the cause of action on such policy merged in such judgment, which is a full defense to plaintiffs’ claim.</p>

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

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

■ This is an action sounding in tort, brought by the plaintiff in error against the Pennsylvania Company, the defendant in error, claiming damages for unlawfully ejecting him from its passenger train on its road between Alliance and Crestline, Ohio, 'on March 6, 1899.

This was an action by the Atlanta National Bank, the defendant in error, against the Southern Railway Company, the plaintiff in error, to recover an amount claimed as damages for the wrong delivery of certain hales of cotton. Paragraphs 1 and 2 of the petition described the parties.

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p> <p>This action was begun by Thomas H. Hays, a citizen of Kentucky, in the civil district court for the parish of Orleans. The petition contained the following statement of the cause of action: “That the Farmers’ & Drovers’ Bank, a banking corporation doing business in the city of Louisville, state of Kentucky, and the Fidelity & Deposit Company of Maryland, a corpora-ción incorporated under the laws of the state of Maryland, and doing busi-i ness as the Fidelity & Guarantee Company in the state of Louisiana, of which Charles H. Black & Co. is resident agent, are justly and legally in- . debted to your petitioner in the sum of three thousand dollars ($3,000), with "legal interest thereon from judicial demand, for this, to wit: That on the ■Í3th day of April, 1897, an execution was issued against your petitioner in . the- cause entitled ‘James Martin vs. T. H. Hays,’ No. 52,047 on the docket of your honorable court, under which judgment seventy-four shares of the stock of the Chalmette Steam Laundry Company of the City of New Or- ■ leans, of the par value of seventy-four hundred dollars, were seized and • advertised for sale; that on the 17th day of May,- 1897, the Farmers’ & : Drovers’ Bank filed in your honorable court their petition of intervention in • said cause, alleging that the judgment under which the said stock had been : -seized, and was then advertised for sale was fraudulent and void, and had :.been collusively obtained and consented to for the purpose of defrauding I petitioner’s .Creditors; that,-upon the allegations contained in said petition, -■ your -honorable -court granted an order restraining the sale of said shares ..of stock until-the further order of court; that on the 1st day of February, 3898, the aforesaid injunction was dissolved and set aside -by a judgment of your honorable court, and the sale under the -writ of fieri 'facias afore^ said ordered to be proceeded with. Said judgment of dissolution becoming final, the sheriff readvertised the aforesaid stock, and the same was sold on the 21st day of March, 1898, and adjudicated to the plaintiff in execution for the sum of one thousand dollars. Your petitioner shows that said stock was well worth, at the time of the seizure thereof, its par value, and that , if the sale thereof as advertised had not been enjoined as aforesaid, the ’ same would have brought its full value at sheriff’s sale. After the injunction aforesaid, and during the pendency of the said cause, the yellow fever made its appearance in the city of New Orleans, suspending business to such an extent that the said Chalmette Steam Laundry Company became embarrassed, was unable tb pay its operating expenses, and the stock thereof declined greatly in value,-—so much so that when the same 'was exposed for sale, after the dissolution of the injunction, it brought the trifling sum of-one thousand dollars. Your petitioner shows that the purchaser of said-stock has, since his acquisition of the same, sold it for more than its par, value; that the loss aforesaid resulted directly and immediately from the' unlawful and unwarranted action of the aforesaid Farmers’ & Drovers’ Bank; in obtaining the injunction aforesaid. Your petitioner shows that, in order-to obtain the said injunction, the said Farmers’ & Drovers’ Bank was required to execute a bond, with good and sufficient security, in the sum of one thousand dollars, and that thereafter it was required, by order of court,' to furnish an additional bond for the sum of two thousand dollars more,1 which last bond was filed on the Sth day of July, 1897; that both of said bonds were conditioned for the payment of such damages as this petitioner should sustain in the event it should be decided that said injunctions w.ere, wrongfully obtained; and that the Fidelity & Deposit Company of Mary-, land was security on both of said bonds. He avers that the stock described' in said petition, the sale of which was enjoined by process issued at the-instance of the Farmers’ & Drovers’ Bank, was the property of this plaintiff at the time of the seizure thereof under the judgment described in his petition, and continued to be his property until adjudicated at sheriffs sale,, as therein alleged; that the injunction obtained by the said Farmers’ «&’ Drovers’ Bank against the sale of said stock was wrongfully obtained, and' was dissolved and set aside by judgment of the civil district court, as set forth in the original petition. Wherefore petitioner prays that a curator ad. hoc be appointed to represent the said Farmers’ & Drovers’ Bank, and cited to answer hereto; that said Fidelity & Deposit Company of Maryland .be .likewise cited to answer hereto; that, after due trial and proper proceedings, your petitioner have judgment against the said defendants, in solido, for. the sum of three thousand dollars, with legal interest from judicial demand,; and for general relief.” . \</p> <p>The curator ad hoc appointed by the court to represent the Farmers’ & Drovers’ Bank pleaded that the court was without jurisdiction so far as’ that bank was concerned. This defense was sustained, and the cause dismissed hy the state court as to the Farmers’ & Drovers’ Bank. The cause was then removed, on the application of the Fidelity & Deposit Company of Maryland, to the United States circuit court of the Eastern district of Louisiana. After the removal of the cause, the defendant fried exceptions to the petition. One of the exceptions to the petition was -‘that the said petition discloses no legal cause of action.” On the trial this exception was sustained by the court, and the cause dismissed. The case is brought here on writ of error by Thomas H. Hays, who assigns as error the decision of the circuit court sustaining the exception of no cause of action, and in “deciding that the facts stated in said petition are not sufficient to constitute a cause of action against said defendant.”</p>

<p>Bonds—Breach—Duties—Complaikt—Dkmubreh.</p> <p>Where, in an action to recover for breach of the conditions of a bond to secure duties on goods, brought under Rev. - St. f 961, providing that in all suits to recover the forfeiture annexed to any bond, where the forfeiture or breach appears on demurrer, the court shall render judgment for plaintiff to recover so much as is due, the complaint alleges that “the time mentioned in the condition of the bond has expired, but the terms and conditions of said bond have not been complied with and performed,” and that “by reason of the premises said defendants are indebted to plaintiff < n said bond in the sum of $3,708.07, which they wholly neglected and refused to pay,” but does not allege that there were any duties on the goods, what they were, or to what amount they remain unpaid, the complaint is insufficient, and a demurrer thereto should be sustained.</p>

<p>Motion for New Trial and Arrest of Judgment.</p>

The defendant in error, plaintiff below, hereinafter called the “plaintiff,” filed his petition to recover upon coupons which had been issued by the plaintiff in error, defendant below, hereinaftér called the “defendant,” with the bonds to which they were attached, in accordance with a contract entered into for the construction of the Richmond, Nicholasville, Irvine & Beattyville Railroad, the charter for which was granted by the legislature of Kentucky, April 21, 1888.

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

This is an action by the widow and children of John X. McDade to recover damages for his negligent death while in the service of the plaintiff in error. There was a judgment for the plaintiffs, and the defendant lias sued out this,writ of error. The deceased was killed at or near Goodwin station, Ark.; between 32 and 1 o’clock on the night of August 38, 3.900-.

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

<p>1. Replevin—Affidavit of Defense—Proof of Title.</p> <p>In an action of replevin defendant filed an affidavit of defense stating tliat it lias no knowledge as to wfio is the owner of the goods, and that it is in actual possession as a carrier for hire, and received such possession not from plaintiff, but from another. Held; that such affidavit is sufficient to put plaintiff to proof of his title.</p> <p>2. Same—Laws of Pennsyi,vania.</p> <p>Where, in an action of replevin, the affidavit of defense states that defendant is in actual possession, derived from one not the plaintiff, as a carrier for hire, and does not know who is the owner, there is nothing in Laws Pa. 1901, p. 88, entitling plaintiff to judgment without proof of ownership.</p>

<p>1. Contbacts—Construction—Duty of Court.</p> <p>Where, in a contract on which an action is brought, the words used have no technical meaning which requires the testimony of experts to explain, it is the duty of the court to construe the contract in its plain and ordinary signification, having due regard to. the character of the parties and the subject-matter.</p> <p>S. Same—“Nominal House Power”—Meaning of Term.</p> <p>Where, in a contract for a boiler, 'it- is, stipulated that it shall have a “nominal capacity of 140 horse power,” the phrase means a boiler of such size and dimensions, and having such heating surface and other elements, as are ordinarily and usually found associated with boilers described as boilers of 140 horse power.</p>

<p>1. Pkomissoky Notes—Actions—Dbvisxses Coontzablií .at Raw.. . , -</p> <p>The payee of a note, who, without the consent of the makers, releases a Judgment which the principal maker held by assignment and pledged: as collateral, is chargeable with the value of such collateral'as a payment on the note, and the fact is a defense available to both principal and sure-' ties, and cognizable in a court of law as well as in equity.</p> <p>2. SuEETY—DEFENSES—MiSAPFMCATION OF COLI.ATEUAL.</p> <p>A surety on a note has the right to insist on the performance of an agreement made between the principal and payee that the proceeds of collateral security held by the latter shall be applied on such note, rather than upon other indebtedness of the principal for which • the. surety is not bound. ■ ,</p>

<p>L Contracts—Fraud—What Law Governs.</p> <p>Where defendant was employed by plaintiff to sell his stock In a Kansas corporation, and the parties at the time lived in Kansas, the sale by defendant pursuant to such contract was a Kansas contract, and any fraud perpetrated by defendant on plaintiff in making the sale would be governed by the laws of that state, though they were both absent therefrom at the time the sale was made.</p> <p>9l Fraud—Actions—Limitations.</p> <p>Under Gen. St. Kan. 1S97, c. 95, § 15, providing that limitations do not run against a claim while the defendant is out of the state, and the provision of such laws that an action to recover for fraud may be brought within two years after the discovery of the fraud, and the statutes of Missouri providing that such action may be brought within five years after the discovery of the fraud, an action commenced in the United States circuit court of Missouri in 1900 to recover money received and fraudulently retained by defendant in 1893 under a Kansas contract, which fraud was discovered in 1898, defendant having resided in Missouri for one year next preceding the commencement of the action, is not barred.</p> <p>8. Same—Discovert—Laches.</p> <p>Where defendant, being authorized to sell plaintiff’s corporate stock to a certain person at a certain price, sold to him at a still higher price, and then telegraphed plaintiff that he could not make such sale, but could sell to other parties at a less price, and was authorized by plaintiff to sell at such less price, if that was the best he could do, reporting the sale as having been made at such less price, and remitting therefor to plaintiff, he cannot be charged with laches in not discovering such fraud until five years thereafter.</p>

1'n Error to the Circuit Court of the United States for the District of Kentucky.

<p>1. Life Insurance—Beneficiary—Eligibility—Heirs.</p> <p>Where the constitution of a fraternal order provides for payment of the beneficiary certificate of a member to his heirs only where he so directs, or when there is no beneficiary specially named, or when the beneficiary named dies before the member, the heirs of a member cannot recover on a certificate in which a beneficiary is named who is living at the death of the member, even though the person so named was not entitled to become a beneficiary under the laws of the order.</p> <p>2. Same—Waiver of Objection—Interpleader.</p> <p>Where, on the death of a member of a fraternal order, his heirs and the person named as beneficiary in his certificate claim the amount payable thereunder, and the order files a bill of interpleader, depositing the amount in court, it thereby waives any objection to the right of such person to be named as beneficiary, and the heirs cannot make such objection. :</p>

<p>L Appeal—Action Tried to Court—Questions Re viewable.</p> <p>Where a jury is waived in the circuit court, and an action at law tried to the court, which makes a general finding only, the appellate court can consider only the rulings made during the trial to which.exceptions have been preserved, and cannot inquire into the special facts and conclusions of law upon which such general finding rests.</p> <p>2. Tuiat,—Motion von Judgment—Waiver.</p> <p>A motion for judgment made by defendant at the close of plaintiff’s evidence and, overruled is waived unless it is renewed after defendant has introduced his evidence, and the ruling thereon cannot be assigned for error.</p> <p>3. Witnesses—Cross-Examination—Limitation.</p> <p>A question asked a plaintiff on cross-examination is properly excluded, where it does not relate to the subject of the direct examination, but goes to an affirmative defense.</p> <p>4. Assumpsit—Pleading—Matters Provable under Genekai, Issue.</p> <p>In an action in assumpsit, any matter of defense which tends to prove the illegality or invalidity of the contract sued on may be shown under the general issue.</p> <p>5. Appear—Review—Harmless Error.</p> <p>A ruling sustaining a demurrer to a special plea setting up a defense which is provable under the general issue, if erroneous, is without prejudice.</p>

<p>1. Appeal—Review, of Instructions-—Necessity of Exceptions.</p> <p>Assignments of error going to the charge of the court cannot he considered hy the appellate court in the absence of exceptions taken at the trial.</p> <p>£. Contract—Breach Authorizing Termination.</p> <p>. Plaintiff, contracted to sell to defendant a quantity of brick, to be delivered as ordered within six months, the orders not to exceed the capacity of its .works, and defendant agreed to pay on the loth of each month for the brick delivered'during the previous month. Held,, that the failure to make any such payment absolved the plaintiff from its obligation 'to make further deliveries, unless such failure was justified by plaintiff’s previous failure to fill orders as required by the contract.</p> <p>8. Appeal—Review—Verdict of Jury.</p> <p>The circuit court of appeals, on writ of error, cannot set aside a verdict as against the weight of evidence.</p>

, . This cause comes here upon appeal from k judgment of the circuit eourt, Southern district of New York (109 Red. 285), entered upon a verdict in favor of defendant in error, who was plaintiff below. The aetion was brought to recover damages for personal injuries. Plaintiff was employed to work on defendant’s dumping boat No. 17 in September, 1894. It was an iron boat used for dumping garbage, and built in two longitudinal sections, so as to open in the middle.

<p>1, Appeal—Review—Ruling on Motion for New Trtal.</p> <p>Tte .question whether a verdict was excessive is one of fact, wbicb cannot be reviewed on a writ of error.</p> <p>2. Competency of Witness—Information' Acquired by Physician—Waiver of 'Privilege.</p> <p>- • Under tbe provisions of Code Civ.- Proc. N. Y. § 834, wbicb make incompetent the testimony of a physician as to information acquired while attending a patient, and of section 836, which permits such information to be disclosed only when the provisions, of section 834 “are expressly waived upon the trial * * * by the patient,” as such provisions have been construed-by the supreme court of the state, the fact that a plaintiff ■ in. an action for personal injuries introduces the testimony of physicians who. attended him, in respect to the nature and extent of such injuries, does not operate as a waiver'of the right to object to the testimony of another physician, called by defendant, who had attended -him for the same injuries, but at a- different time.</p>

<p>Removal of Causes—Trial—Time.</p> <p>Under 25 Stat. 433, providing that, on the removal of a cause from a state court to the circuit court of tbe United States, the cause shall proceed in the same manner as if it had been originally commenced in said circuit court, where it is the practice long established in such a court to consider the first term after a cause is commenced as the appearance term, and the next succeeding term as the trial term, and a cause is removed from a state court to such circuit court and the papers filed therein on the first day of a term, the defendant should not be forced to trial until the next term, even though the trial might have been had at an earlier date if the cause had not been removed from the state court.</p>

<p>I11 Error to the District Court of the United States for the Northern District of Florida.</p>

This was an action by Thomas O. Hindman to recover damages for the fraudulent and false representations of the defendants, whereby he was induced to buy shares of the capital stock of the Columbian Fire Insurance Company of America, which shares have proven worthless. A demurrer to the petition was sustained, and the plaintiff’s petition dismissed.

<p>In Bankruptcy. . Demurrer to bill in equity.</p>

<p>In Bankruptcy. Certificate of referee, disallowing claim of Frederick Kauimann.</p>

<p>1. Bankruptcy—Exemptions—Application op State Laws.</p> <p>While the bankrupt act recognizes the bankrupt’s right to exemptions, it refers to the state law as the source from which the right arises, and what the state law does not give cannot be set aside as exempt by the trustee.</p> <p>2. Same—Setting Apart—Valuin'g Items Separately.</p> <p>Under the laws of Pennsylvania, a trustee in bankruptcy, in setting aside as exempt household goods and book accounts, must itemize them, and value- each item separately.</p> <p>8. Same—Proceeds op Future Sale op Personalty.</p> <p>, Under the laws of Pennsylvania a trustee in bankruptcy cannot set ;apart as exempt cash out of the proceeds of a future sale of the bankrupt’s personal property.</p> <p>i. Same—Report—Requirements op Bankrupt Act.</p> <p>General Order 17 (32 C. C. A. xix., 89 Fed. viii.), declaring that the trustee in bankruptcy shall report the articles set apart as exempt, with the estimated value oí each article, requires a specification of items and. a separate appraisal of the property set apart to the bankrupt.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy—Claims Payable Out op Proceeds op Sale—Liens.</p> <p>Several tracts of land and personal property of a bankrupt being sold for a lump sum, and tlie sale having been unanimously agreed to at a meeting of creditors, of which claifnant had notice, his municipal claim, which was a lien on one of the tracts, is not payable out of the proceeds; it being impossible to say that sufficient money to pay it was produced by the tract bound for it.</p> <p>2. Same.</p> <p>A sale of bankrupt’s property being made subject to incumbrances, including liens for municipal claims, and the sale having been unanimously agreed to at a meeting of creditors, of which claimant had notice, his municipal claim, which was a lien on one of the tracts sold, is not payable out of the proceeds, but his remedy is against the land alone.</p>

<p>Sale Subject to Incumbrances—Liens for Municipal Claims.</p> <p>Liens for municipal claims and taxes are “incumbrances,” within a sale of bankrupt’s property “under and subject to the incumbrances, respectively, hereinbefore mentioned”; the petition for sale, after referring to mortgage's and ground rents, stating, “There are also unpaid taxes and water rents * * * on said properties * * * some of the above-mentioned properties are further subject to municipal claims.”</p>

<p>In Bankruptcy.</p>

<p>Involuntary Bankruptcy—Saloons and Restaurants.</p> <p>A corporation en'gaged in running a saloon and restaurant is not a “mercantile” or “trading” corporation, witbin Bankr. Act. § 4b, describing corporations wbicb may be adjudged involuntary bankrupts, and is not subject to tbe provisions of the aet.1</p>

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

<p>Í. Bankruptcy—Dismissal op Proceedings—Review op Order—Procedure —Review—Parties.</p> <p>Where a creditors’ petition for an adjudication of bankruptcy has been dismissed, and several other creditors join in a petition for a reinstatement of the proceedings, one of such creditors may petition for review of the order denying their petition, without being joined by the others, under the bankruptcy act (section 24b), providing that the several circuit courts of appeal shall have jurisdiction in equity to review in matters of law. the proceedings of inferior courts of bankruptcy, and that such powers shall be exercised on due notice and petition by any party aggrieved; such proceedings for review not being governed by the rules relating to appeals.1</p> <p>8. Same—Notice to Creditors—Order op Dismissal—Validity.</p> <p>Where, after a creditors’ petition for an adjudication of bankruptcy is filed, but before adjudication thereon, the assignee of all the petitioning creditors asks that the proceedings be dismissed, and the record does not disclose any other creditors, an order granting such request is not void, though there be other creditors, and no notice to creditors is given as prescribed' in Bankruptcy Act, §§ 58a, 59g, providing that creditors shall have 10 days’ notice by mail, to their addresses as they appear in the list of creditors, or as afterwards filed with the papers in the case, of the proposed dismissal of the proceedings, prescribing the yuanner of notice, and providing that an involuntary petition shall not be dismissed by the petitioners until after notice to the creditors.</p> <p>8. Same—Reinstatement op Proceedings—Diligence—Unreasonable Delay.</p> <p>' Where a creditors’ petition that their debtor be adjudged a bankrupt is dismissed at their request, and other creditors wait one year before filing a petition to reinstate such proceedings, the delay is unreasonable, and the application should be denied.</p>

<p>Injunction—Violation—Service or Order—Necessity.</p> <p>Service of a copy of an injunction issued by a bankruptcy court, restraining tbe assignee for creditors of tbe bankrupt and others from disposing of bis property, was unnecessary in order to put them in contempt for a violation thereof, where they were otherwise advised of its issuance.</p>

<p>In Bankruptcy..</p> <p>On December 10, 1901, the Southern Pants Manufacturing Company, hereinafter referred tó as the “Manufacturing Company,” a creditor of the above-named bankrupt, instituted an action against the bankrupt before a justice of the peace for the recovery of money due for the purchase money of certain, merchandise sold to the ,bankrupt, and at the same time also filed, under the statutes of Arkansas, an affidavit fpr the seizure of the goods in the possession of the vendee. A summons and order for'the seizure of the goods were issued by the' justice of the peace, and placéd in the hands of the; constable, who duly executed the' same by seizing the goods. On the .same .day, after the seizure, the bankrupt filed a voluntary petition in bankruptcy in this court, and. was duly adjudicated a bankrupt. The referee issued an crder restraining the manufacturing company from in any way interfering with these' goods until a hearing was had, which order was duly-'-obeyed. On January 25, 1902, the manufacturing company filed with .the referee, its petition, setting up the foregoing -facts, and praying for an-order. setting aside: the restraining order theretofore made, and that it be permitted to have .the goods seized sold by the constable to -satisfy its claim. The. referee denied the petition, whereup' n, upon motion of the manufacturing company, the matter was certified to the court for review. The -statutes of Arkansas under which the manufacturing company claims are! as. follows:-</p> <p>‘-‘Sec..4727. In;any action brought in the-courts of this state for the recovery.-,of mopey contracted for property in p.ssession of -the vendee, it shall'not be lawful to.iiiplude said property in any schedule intended to protect said property;, .or .exempt it from seizure on attachment or salé on execiition or 'other' piveess issued from any court for the collection of any debt upon, the-claim of ¡the plaintiff. ’ -</p> <p>“See. 4728. In any such action the court or , clerk shall issue, on petition of, the. plaintiff,...duly .verified, describing the property and stating its value, at or after the. commencement of said action, an order, which may be embodied in the'original,‘summons, stating the name of the court and the style of the action, and 'directing the sheriff or other officer to take the property described in the petition,,-and hold the-same subject to the orders of the court.. ....</p> <p>‘‘'“Sec.' 472Ó. The'defendant hhay give bond for the retention of the property, as in cases of orders of delivery of personal property.”</p>

<p>In Bankruptcy.</p>

<p>1. Criminal Law—Arraignment and Plea—New Trial.</p> <p>There having been a prior arraignment and plea, one is not necessary 01? a new trial.</p> <p>2. Same—Motion in Arrest of Judgment.</p> <p>Motion in arrest of judgment must be based on something appearing on the face of the record.</p> <p>3. Same—New Trial—Religious Scruples of Juror.</p> <p>New trial will not be granted because, over request of juror to be excused for Saturday because of religious scruples as to such day, the district attorney concluded his argument, - and the court gave its charge on that day, and at the request of such juror the case was not considered by the jury till after sundown of that day.</p>

, Cyril W. King, captain and assistant quartermaster U. S. V., the plaintiff in error, was tried in the court below on an indictment charging him with accepting a bribe from one J. H. Hobson, a government contractor, in violation of section 5501 of the Revised Statutes. The verdict of the jury was as follows:, . “And now comes the jury, and upon their oaths do say: We, the jury, find the defendant guilty as charged in the second count of the indictment.

<p>1. Trade-Mark—Infringement—Use of Christian Name—Manner of Use.</p> <p>Complainants and tlieir predecessors for many years had expended large amounts of money in advertising their soap, designated “WeK come” soap, the word being registered as a trade-mark. Defendant, a retail grocer, sold s ap made and put up for him by manufacturers. The labels thereon bore defendant’s name, “Welcome A. Smith,” the word “Welcome” above the “A. Smith,” in much larger type, and so printed that the word “Welcome” alone appeared on the end of the package. Defendant objected to such wrappers before the present suit, and at his request the manufacturers changed the labels, so as to have his name in n. single line in uniform type. The cakes of complainant’s and defendant’s soap differed in size and shape and in the wording of the labels. Complainant sued to enjoin further use of the word “Wel- ‘ come.” l-IeW, that the use of the word “Welcome,” segregated from the surname, or in larger type or letters than the surname, or so located as to admit the inference that the soap is Welcome Soap, manufactured by A. Smith, would be restrained.</p> <p>2. Same—Costs.</p> <p>Defendant having discontinued the use of the objectionable labels, and the infringement thereby of complainant’s trade-mark being of very limited amount, no costs will be allowed against him.</p>

The appellant, the Sterling Remedy Company, filed its bill in the court below against the Spermine Medical Company to restrain unfair competition in trade.

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

In Equity. Suit for infringement of patent. On final hearing. Tliis is a suit for the infringement of letters patent No. 508,017 granted November 14, 1803, to the complainant, as assignee of Christian G. Hoerle, the inventor, for an improvement in trucks Cor roller skates.

In Equity. Suit for infringement of patent. On final hearing. • This action is for the infringement of letters patent No. 552,470, granted to Robert Gorton, December 81, 1895, for a hose supporter. The patent is now owned by the complainants. Tiie inventor says in the specification: “Hy invention relates to hose supporters of the class in which the hose is held between a button and a retaining-loop that passes over the button and the intervening portion of the hose.

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

<p>Patents—Invention—Bicycle Pedals,</p> <p>The Metz patent, No^ 536,071, for a bicycle pedal, is void for lack of patentable Invention. While the device of the patent as constructed and sold is highly successful, and shows invention, such fact is due to a change made therein subsequent to the patent, which gave it a new function, of which the patentee did not at that time have the idea, nor describe the means hy which the result could be accomplished, but which was a matter of later invention.</p>

<p>In Equity. Suit for infringement of patent. On special report of master.</p>

<p>Admiralty Jurisdiction—Maritime Contracts — Action for Brokers’ Commission.</p> <p>A contract embodied in the charter of a vessel, executed by brokers on behalf of the owners, binding the ship and owners to pay a commission to the brokers for procuring the charter, is not maritime", and a court of admiralty has no jurisdiction of an action thereon.1</p>

•Appeal from the District Court of the United States for the Eastern District oí .New York. This causo conies here upon appeal from a dcc-ree of the district court, Eastern district of New York, dismissing the libel. The firm of 8. A. Burgett & Co. shipped a full cargo of oats on the Harrogate in December, 1891, to be transponed to Aberdeen, Scotland.

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

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

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

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

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

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

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

<p>Appeal from the Circuit Court of the United Stales fir the Western District of Missouri.</p>

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

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

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

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

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

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

<p>Appeal from the Circuit Qourt of the United States far the Eastern District of Pennsylvania.</p>

<p>Appeal from the District Court of the United States for the District of Rhode Island. In Admiralty. Suit for towage services and cross libel for damages.</p>

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

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

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

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

<p>At Law. On motion for new trial.</p>