Volume 113 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the District of South Carolina, at Charleston.</p>

Appeal iroin the Circuit Court of the United States for the Western District of Louisiana.

<p>Admission to Bail — Jurisdiction.</p> <p>Where appeal bas been taken from decision of a federal court discharging writ of habeas corpus, and pending it the prisoner has been remanded to the custody of state officers, as authorized by Supreme Court Rule 34, such federal court has no jurisdiction to entertain motion to admit to bail.1</p>

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

<p>1. Guardian and Ward — Illegal Salk — Notice--Record —Principal and Agent.</p> <p>While plaintiff was a minor, owning the undivided one-half of certain land, Ills mother, who wa3 Ms guardian, Ms brother (owning the other half), and another, conspired to raise money by mortgaging such land. The guardian petitioned to sell plaintiff’s property, and a few days thereafter she, with the brother and third party, joined in a mortgage of such land. Nearly two months thereafter a pretended guardian’s sale of plaintiff’s interest was made to such third party, subsequently confirmed, and a guardian’s deed to him made. He paid no consideration, and subsequently he, with plaintiff’s mother and brother, without consideration, conveyed to another, who conveyed to defendant’s son, who was her attorney in fact, and assumed a part of the mortgage, and afterwards conveyed to her. The evidence was indefinite as to what, if any, consideration was paid by defendant’s son, and also conflicting as to whether he was fully informed as to the nature of the transactions and of plaintiff’s rights. The mortgage was subsequently adjudged invalid by the supreme court of the state. Helé, that defendant’s son and grantor was charged with notice that the pretended purchaser at the guardian’s sale had joined in the mortgage before the sale, and that there was no necessity for both the mortgage and sale to meet the minor’s requirements, as shown by the petition for the sale, and that by his assumption of the mortgage he became a party to the illegal' transaction.</p> <p>2. Same — Principal and Agent — Knowledge of Agent.</p> <p>Defendant, being the grantee of her attorney in fact, is bound with notice of all he knew relating to the fraudulent character of the guardian’s sale, and of plaintiffs right, and hence such sale and subsequent conveyance should be set aside.</p> <p>On Rehearing.</p> <p>1. Guardian’s Sale — Mortgage Prior to Purchase — Inference of Fraud —Record—N otice.</p> <p>Where a pretended purchaser at a guardian’s sale, pursuant to a scheme to raise money on the property, executes a mortgage thereon before the sale, — it being understood that he will reeonvey the property to the ward, but, instead, conveys' to another, — the transaction is so unusual that a subsequent grantee cannot rely on the record as rebutting the inference of fraud arising from the mortgage being so executed.</p> <p>8. Same — Fraud—Abandonment of Part of Scheme.</p> <p>Where a pretended purchaser at a guardian’s sale, pursuant to a scheme to raise money on the property, executes a mortgage thereon before the sale, agreeing to reconvey, the fact that, instead of so ree.mveying, he conveys to another person, does not purge the sale of its fraudulent character.</p> <p>8. Same — Evidence—Notice.</p> <p>Evidence leaves no room to doubt that a subsequent grantee claiming title through a fraudulent guardian’s sale had full notice of the character of the sale, and of the existing rights of the ward in the property.</p>

<p>1. Time of Taking Testimony — Enforcement of Rule.</p> <p>Rule 69, limiting the time wlierein testimony may be taken to three months after the case is issued, will be enforced unless by a written stipulation the parties agree to a longer period, or, if no such agreement can be reached, unless the court has extended the time on a proper application.</p> <p>3. Cross-Examination — Objections.</p> <p>Where, in the taking of testimony for use at a trial, irrelevant or otherwise improper cross-examination is indulged in, the questions should ordinarily be answered, and the error dealt with as a question of costs.</p>

<p>1. Contbaots — Breach—Nominal Damages — Specific Performance — Former J udgment — Bar.</p> <p>Wliere, in an action for specific performance of a contract to lease telegraph lines, the bill alleges that an action at law was brought on the contract, which resulted in a judgment for plaintiffs against defendant sustaining the contract and for nominal damages, such judgment is not necessarily an absolute bar to a decree for specific performance, though a judgment for substantial damages might be.</p> <p>S. Same — Specific Performance — Object of Contract — Mutual Benefit.</p> <p>A contract recited that defendant owned an Atlantic cable and certain land telegraph lines, and desired to obtain a larger percentage of the telegraph traffic between the United States and Europe, and that plaintiffs intended to establish a new telegraphic system throughout the United States, and desired to obtain control of defendant’s land lines. It then provided for a lease of such land lines to plaintiffs on certain .work being done within a specified time, and an interchange of business and office facilities, there being no other consideration for the lease, HeM that, in the absence of a showing that plaintiffs have established any lines or offices in the United States, and are in a position to receive or confer any benefits from the interchange of traffic contemplated by the lease, specific performance should not be decreed.</p>

This is a suit in equity by the appellant, a corporation under the laws of West Virginia, against the appellee, a corporation under the laws of Maryland. In the year of 1888 the East Birmingham Land Company executed a mortgage on Its property to the appellee, as trustee, to secure $50,000 ol bonds.

<p>Costs — Taxation—Time for Filing Memorandum.</p> <p>Under the rule of the circuit court for the Ninth circuit which requires a party in whose favor a judgment or decree is rendered, and who claims costs, to file and serve a memorandum of his costs and disbursements within five days after rendition of the verdict, or “after notice of the decision of the court,” and which further provides that “notice of a decision may be by the presence of the attorney or solicitor at its announcement, or by written notice from the clerk of the court, or the attorney or solicitor of the adverse party,” the five days- do not begin to run in an equity case until notice has been received in one of the three ways specified. It is not sufficient that the solicitor had actual knowledge of the decision, or that his clerk or representative was present at its announcement.</p>

<p>1. Building and Loan Association — Loan in One State to a Corporation of Another- — Place of Payment — Contract—Law Which Governs.</p> <p>Where a building and loan association incorporated in Minnesota makes a loan to a member residing in Kentucky, secured by a mortgage on bis real estate in the latter state, all payments of interest and principal to be made at the home office of the association in the former state, the contract is governed by the laws of Minnesota.</p> <p>t. Same — Usury—Evasion of Law.</p> <p>"Where a contract of loan made between a building and loan association of one state and a resident of another state, and secured by mortgage on his real estate therein, is valid under the laws of the former state, but usui-ious under the laws of the latter state, the fact that the place of payment is fixed at the home office of the association should not be construed as an evasion of the usury laws of the state where the property is situated.</p> <p>8. Same-Federal Courts — Laws of State — Decisions of State Court.</p> <p>Under Eev. St. U. S. § 721, requiring the federal courts to be bound by and enforce the laws of the state in which the court is sitting, such a court is not bound, against its own judgment, to follow the decisions of the highest court of such state, in determining the question as to-what law governs a contract of loan between a building and loan association of one state and a member residing in the state in which the court is sitting,. secured by mortgage on land in the latter state; the adjudications of the state court on- the subject not being based on any local statute, or constituting a rule of property situated within the state, which the federal court is bound to follow.1</p> <p>4. Same — Contract Made Prior to Decision of State Court.</p> <p>Where a building and loan association makes a loan and takes a mortgage on land in another state, the contract being valid in the state of the domicile 'of the corporation," and after the loan is made the supreme court of the state in which the land is situated decides, in a suit between other parties, that such contracts cannot be enforced in such state because usurious, a federal court in that state, in an action to foreclose such mortgage, is not required to follow such decision when it believes the decision to be wrong.'</p>

<p>Motion for Judgment on Reserved Point N. O. V.</p>

Action upon a life insurance policy issued to George Dana Hill, father of the plaintiffs. Tried before the court and a jury, resulting in a verdict in favor of the plaintiffs. Heard on a motion for judgment in favor of the defendant non obstante veredicto. Motion denied.

<p>1. Writ of Error — Review—Discretion.</p> <p>The refusal to postpone a trial is witliin tlie discretion of tlie court, and will not be reviewed on error unless the discretion bag been abused.</p> <p>2. Same.</p> <p>A refusal to reinstate a cause-after dismissal is in the discretion of the court, and not reviewable on writ of error.</p>

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

The town of Alden, the plaintiff-in error, one of the congressional townships of Freeborn county, in the state of Minnesota, on March 28, 1870, having been duly authorized by a majority of its qualified voters, issued its 15 certain bonds, of the denomination of $1,000 each, in aid of the construction of the Southern Minnesota Railroad, projected across the township.

<p>Master and Servant — Injury through Negligence of Superintendent — Massachusetts Statute.</p> <p>The provision of the Massachusetts employers’ liability act which gives a right of action against an employer for a personal injury caused to an employs “by reason of the negligence of any person in the service of the employer, entrusted, with and exercising superintendence, whose sole or principal duty is that of superintendence,” is remedial in character, and not to be so artificially and narrowly construed that the fact, alone, that one given authority of superintendence works with his hands the greater part of the time, necessarily excludes him from being one whose “principal business is that of superintendence.” nor do the decisions of the supreme judicial court of the state thereon require such a construction; and where a superintendent, although so working himself, is also during the same time that he is working actively exercising the duty of superintendence, that may be found, in a proper case, to be such “principal business.”'</p>

<p>1. Breach of Contract — Damages—Expense Incurred — Lost Profits.</p> <p>Damages based on the estimated expenses incurred and losses of profits sustained by reason of defendant’s failure to complete and deliver certain vessels within a specified time are not recoverable in an action for breach of a contract to complete and deliver the vessels within the specified time, though the purpose for which the vessels were intended was understood by the parties, such damages being entirely conjectural.</p> <p>2. Same — Remoteness of Damages.</p> <p>Damages based on the loss of vessels in a hurricane are too speculative to be recoverable in an action for breach of a contract to construct and deliver the vessels within a specified time at a designated place, their destruction occurring at another place.</p> <p>8. Same — Measure of Damages.</p> <p>In the absence of special circumstances, a party failing to complete and deliver vessels within a specified time is liable only to the amount of the interest on the payments made prior to their delivery for the time of the delay.</p>

<p>1. Master and Servant — Railroad Trains — Mode of Operation — Avoiding Collisions between Trains — Ordinary Care.</p> <p>Plaintiffs intestate, a railroad conductor on an extra train, had orders to precede a delayed regular train into defendant’s yards. No instructions were given to look out for any other train on entering the yards. Intestate was killed in a collision with a switching engine in the yards. No notice of the approach of the extra train had been given to those on the switch engine. The company’s rules, known to intestate, gave the right of way to switch engines in the yards, and required that extra trains must approach and run through yard limits under full control. The evidence as to whether intestate’s train was under full control was conflicting. The night of the accident was shown to have been dark and foggy. HeldI that, notwithstanding the rules of the company, it was the duty of the crew of the switching engine to exercise ordinary care in avoiding collisions with incoming trains.</p> <p>2. Bame — Ordinary Care — Instructions.</p> <p>An instruction that the crew of the switching engine should take proper precautions against collisions with incoming trains, the character of such precautions to be determined by the circumstances of the night, the heayy fog, and the difficulty in hearing and seeing signals, was correct.</p> <p>8. Same — Observance of Rules — Question for Jury.</p> <p>The question as to whether intestate observed the rule of having his train under full control on entering the yards was for the jury.</p> <p>4. Same — Excessive Damages — Appeal.</p> <p>Where, in an action for the death of plaintiff’s intestate, the instructions are proper, and the record shows no attempt to magnify the injury or pain, nor any appeal to the passion, prejudice, or sympathy of the jury, nor indication that the jurors were so influenced, the appellate court will not disturb a verdict on the ground of excessive damages.</p>

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

<p>Writ op Error — Amending Petition Nunc pro Tunc.</p> <p>Leave to amend a petition for writ of error nunc pro tunc, after the case has been removed by writ of error, though perhaps unnecessary, a formal petition for the writ not being essential, will be granted, there being a clear clerical error in using the word “defendant” for “plaintiff.”</p>

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

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

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

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

This action was brought by William Alfred Milliken, a citizen of New York, against Martin H. Sullivan, a citizen of Florida. The case was first tried on a declaration containing 12 counts, and resulted in a verdict for the defendant, Sullivan. A new trial was granted by the circuit court, and the plaintiff amended his declaration by adding counts numbered 13 and 14.

<p>At Law.</p> <p>An action for ejectment to recover the possession of a strip of land under water in front of uplands of the defendants Wellbrock at City Island, in the city of New York, and extending out about 400 feet from high-water mark. The premises are situated under the waters of Long Island Sound, adjacent to Minneford’s, now called City, Island, and are part of a large tract which extends 400 feet from high-water mark outward and under the waters of the sound on the east, west, and south sides of the island. This tract of land under water was granted by the English crown to Benjamin Palmer, his heirs and assigns, by royal patent dated May 27, 1703, upon the tenure of free and common socage and upon the express condition that he pay to the said crown or its successors yearly, forever, a certain rent. At the time of this grant Benjamin Palmer was the owner of title entire upland of the island. The colonial assembly, and afterwards the legislature of the state of New York, the people having succeeded to the rights of the crown, passed a number of acts directing the grantees of lands chargeable with perpetual rents to redeem from their defaults, and, in ease of their failure to do so, declaring that such lands should be sold by reason of such nonpayment. By chapter 222 of the Laws of 1819 the lands so forfeited were directed to be sold by the comptroller of the state of New York. Under this act the lands were sold on March 26, 1826, but the deed was not delivered until April 5, 1836, when the comptroller duly transferred by patent the said premises about City Island to Elias D. Hunter, who was plaintiff’s ancestor and devisor. See De Lancey v. Piepgras, 138 N. Y. 26, 33 N. E. 822, and Same v. Hawkins, 23 App. Div. 8, 49 N. Y. Supp. 469. In 1884 the defendants Wellbrock procured a grant from the state for the premises under water opposite uplands owned by' them upon which they erected a public dock or wharf extending about 350 feet into the waters of Long Island Sound. These premises, the subject of this action, are a part of the strip of land under water contained in the Palmer patent, and the dock or wharf so erected upon the premises by the defendants Wellbrock was open to the public upon payment of the usual rates for wharfage.</p>

<p>Injunction — Restraining Prosecution of Suit — Dissolution.</p> <p>In a suit by a trustee in bankruptcy to restrain the prosecution of an action by a third person against a United States marshal for trespass in seizing the stock of goods under a warrant of the bankruptcy court, on the ground that it prevented a settlement of the estate, where defendant’s verified answer disclaims any interest in the goods in the trustee’s hands, and surrenders all claim thereto, and alleges defendant’s election to rely on his remedy in the state court against the marshal individually, and not as an official, the temporary restraining order will be dissolved.</p>

<p>I. Bankruptcy— Receivers — Summary Proceedings — Jurtsdiction.</p> <p>Bankr. Act, § 2, subd. 3, gives tin; court in which bankruptcy proceedings are pending power to appoint marshals or receivers to take charge of the property oritlie bankrupt, and section 70 provides that a trustee of a bankrupt’s estate is vested with the title of llie bankrupt at the date of the adjudication. Belli, that where a receiver was appointed to take charge of the goods of the bankrupt, and prior to his qualification lessors of the bankrupt instituted summary proceedings in the state court to recover the leased premises containing the goods of the bankrupt, but no possession was obtained prior to the qualification of the receiver, he was entitled to an injunction restraining the summary proceedings.</p> <p>3. Same — Removal of Assets.</p> <p>The lessors may petition the court to have the goods of the bankrupt removed and the premises vacated by the receiver.</p>

<p>1. Bankruptcy — Proof of Claims — Surrendering Preferences.</p> <p>If a given payment received by a creditor without knowledge of Insolvency need not be surrendered before proof, not being a preference within the bankruptcy act because the result of the whole transaction is to increase the net indebtedness to the creditor, the same payment received with knowledge of insolvency is not a preference, and need not be surrendered.</p> <p>2. Same — Decrease of Net Indebtedness.</p> <p>A bankrupt’s clerk, four months before the date of the bankruptcy, had a priority claim against him for wages for $300 and a common claim for $33. During the four months he earned $445, and at the date of bankruptcy, if no payments had been made reducing the same, would have had a priority claim for $300 and a common claim for $478. During the four months he received $404 in goods and money. He applied $333 in settlement of the wages due four months before bankruptcy, and $70 on wages earned within that period, but which had then lost their priority, so that his common claim was reduced to $74. Rel<& that, his common claim having been reduced within the four-months period, the clerk had received a preference, and, it not being surrendered, could not prove the balance of his claim, unless willing to do so as a creditor not entitled to priority, in which event his claim would have increased within the four months, and there would have been no preference.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the. Eastern District of North Carolina, at Wilmington, in Bankruptcy.</p>

<p>Appeal from the District Court of the' United States for the District of South Carolina, Sitting in Bankruptcy, at Charleston.</p>

<p>1. Bankruptcy — Property Vesting in Trustee — Mortgaged Beauty.</p> <p>Wherever a bankrupt holds the legal title to mortgaged property when the adjudication is made, it will pass into the custody of the bankruptcy court, and, by operation of law, the title of the bankrupt will vest in the trustee as of the date of such adjudication.</p> <p>2. Same — Estate of Mortgagor — What Law Governs.</p> <p>The estate of a mortgagor in mortgaged premises situated in New York must follow the rules laid down by the state tribunal.</p> <p>8. Same — Nature of Mortgage — Estate Created.</p> <p>A mortgage on real estate in New York has none of the characteristics of a conveyance, but is merely a chose in action, giving the mortgagee no legal estate in the land, but merely a lien on the property.</p> <p>L Same — Jurisdiction of Bankruptcy Courts.</p> <p>The jurisdiction conferred on bankruptcy courts by Bankr. Act, § 2, subd. 7, giving them jurisdiction to cause the estate of bankrupts to-be collected and distributed, and to “determine all controversies In reía» tion thereto, except as herein otherwise provided,” depends — First, on whether the controversy has reference to property actually in the possession of the bankruptcy court or belonging to the bankrupt estate; second, whether it arises in the bankruptcy proceedings, and the property becomes, therefore, subject to distribution to creditors; or, third, whether, by the nature of the controversy, power is conferred on the court to determine conflicting liens and apportion assets.</p> <p>S. Same — Determining Validity of Mortgage.</p> <p>Where mortgaged property owned by a bankrupt is in the custody of the bankruptcy court, and the legal title thereto is lawfully held by the trustee in bankruptcy as a part of the bankrupt’s estate, the federal district court has jurisdiction to hear and determine a question as to the validity and amount of the mortgage lien.</p> <p><1. Same — Right of Trustee to Plead Usury.</p> <p>Where a trustee in bankruptcy sues to set aside a fraudulent conveyance by the bankrupt, and the fraudulent grantee thereupon conveys the property involved to the trustee, the latter stands In the same relation to a mortgage thereon executed by the bankrupt as the bankrupt himself, and, therefore, though the defense of usury is personal to a borrower, may attack it as invalid on that ground.</p> <p>Z Same---Knowledge of Usury.</p> <p>A mortgage which expressly provides for the payment of lawful interest will not be invalid for usury unless exacted with the knowledge of the lender as a condition of the loan.</p> <p>8. Same.</p> <p>Whore a loan is negotiated by an agent of the lender, it must be established by proof that the -lender knew, or must be presumed to have known, that usury was exacted.</p> <p>9. Same — Device to Cover Usury.</p> <p>The inhibition of the statute against usury follows the making of a contract with a third person, where it appears to have been a mere device to cover the unlawful undertaking, and that such scheme was In contemplation of the parties.</p> <p>10. Same — Rights of Bona Fide TIoldeh.</p> <p>Under the laws of New York, a mortgage void for usury in its inception is not valid in the hands of a bona fide bolder.</p> <p>11. Same — Mortgage Adjudged Usurious.</p> <p>A bankrupt who had received but $15,000 on a $25,000 mortgage thereafter agreed in writing to pay the mortgagee’s agent, who negotiated the loan, and who was the brother of the mortgagee’s husband, 5 per cent, on the gross sales of her business, on the agent’s assurance that otherwise no more money would be forthcoming. A new mortgage was then executed for the same amount as the first, and the remaining $10,000 paid. After-wards the mortgage ivas assigned to the mortgagee’s mother-in-law. The evidence showed a community of interest. Helé sufficient to show an intent to exact usurious interest on the part of tlio mortgagee, and that a finding that the mortgage was void in its inception was therefore supported.</p> <p>13. Failure to Produce Witnesses — Effect.</p> <p>Where a party has it in his power to produce a material witness, and fails to do so, a presumption arises that the testimony would be unfavorable to him.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>Bankeuftcy — te :\' c¡: I\\;•;? ttiox.</p> <p>A husband aiwl his wife were each adjudged bankrupt, and the .same trustee appointed for both. His life was insured, the .policies payable to her, but provided that, if she should not survive him, payment .should be made to his executors, administrators, and assigns. They claimed the policies as exempt under Laws Wash. 1395, p. 836, providing ihat the proceeds or values of all life insurance shall be exempt from all liability for any debt, and Bankr. Act', § 6, providing that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the state laws. Held, that such section 6 does not control the provisions of section 70a, that when the bankrupt has an insurance policy which has a cash surrender value, payable to himself, bis estate, or personal representatives, the policy shall pass to the trustee as assets, unless the bankrupt pays such value to the trustee; and, as the wife could not hold the policies payable to her, nor the husband hold them when payable to Ills personal representatives in the event of her prior death, the policies passed to the trustee.</p>

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

At Law. Action to recover United States internal revenue taxes alleged to have been unlawfully assessed by the defendant as collect- or. The defendant demurred to the plaintiff’s statement.

Habeas Corpus. Lawrence Foot was subpoenaed as a witness before the grand jury for the dieti-ict court of thy United States for the Western division of the Northern dfairict of Mississippi. He was sworn and examined in relation to violations of an act of congress axiproved July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies” (26 Stat. 209).

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

This ease was commenced in the circuit court on a petition, among other things, showing as follows: •‘Petitioner shows that he is a carpenter by trade, and was, at the date first mentioned below, employed as such by the firm of William J. Hannon & Co., a commercial firm doing business in the city of New Orleans, to do certain work on the steamship Nicaraguan, belonging to the West India & Pacific Steamship Company, Limited, a corporation organized under the laws of a foreign…

<p>Navigable Waters — Dumping of Refuse Matter — Indictment—Sufficiency.</p> <p>An indictment based on Act June 29, 1888 (25 Stat. 209), as amended by Act Aug. 17, 1894 (28 Stat. 360), charged that M., being the owner, and R., being the master, of a steamer, “did unlawfully dump,” and “aid and abet in the dumping” of, refuse matter “into the tidal waters of the harbor of New York, and the waters adjacent thereto”; the place being “at the Southern district of New York, within the admiralty and maritime jurisdiction of the United States, and within the jurisdiction of this court.” Act March 3, 1899, prohibited the discharge of refuse into any navigable waters of the United States, etc. Section 16 declared that any master, pilot, or engineer, etc., who should knowingly engage in towing any vessel loaded with refuse matter to any point of deposit in any harbor or navigable water elsewhere than in certain prescribed limits, should be guilty of a violation of the act. Helé, that the indict.ment charged an offense within the act of 1899, as well as within the act on which it was based, and therefore that the court would not consider whether the earlier acts were' repealed by the act of 1899.</p>

This is a libel for salvage services in raising the passenger steamboat Catskill, which had been sunk in collision in the North river, and for towing her ashore.

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

This case arises on the following fact3: fi'he American Wired Hoop Company, a corporation of Wisconsin, the defendant in error, on February 1, 1900, recovered a judgment against the Sutherland-Innes Company, Limited, a Canadian corporation, the plaintiff in error, for the sum of $1,122, in the circuit court of the United States for the district of Minnesota.

On the 13th day of April, 1900, David Welling, a citizen and resident of the state of Illinois, was by the court below adjudged a bankrupt, and on the 20th of that month filed schedules of his property. On May 11th the Chicago Title & Trust Company was appointed trustee of the bankrupt.

The indictment in this ease is based' upon section 3893 of the Revised Statutes of the United States, as amended by the act of September 26, 1888 (1 Supp. Rev. St. 621), and embraces two counts. A demurrer to the indictment having been overruled, the defendants entered their pleas of guilty to both counts. A motion in arrest of judgment was overruled, and exception duly taken.

<p>1. Bankruptcy — Procedure on Review.</p> <p>The decision of a court of bankruptcy on a petition claiming ownership of funds in the hands of a bankrupt’s trustee, where the facts are undisputed, may be reviewed by a petition for revision, under Bankr. Act 1898, § 24b, and not by appeal under that act.1</p> <p>2. Same — Proceeds of Pledge — Recovery from Trustee of Pledgee.</p> <p>A pledgee of a certificate of stock repledged it to a bank, without the knowledge of his pledgor, to secure a debt of his own. He after-wards made a general assignment, and still later was adjudged a bankrupt. The bank sold the securities, and, after its claim was paid, had a sum remaining exceeding the proceeds of such certificate, which it paid over to the assignee, who had been previously notified by the original pledgor of his right to the certificate, subject to payment of bis own debt, which he bad duly tendered. The assignee had funds in his hands exceeding the proceeds of such certificate at all times until lie turned the same over to the trustee in bankruptcy, who thereafter also had at all times funds in excess of such amount. Held, that the original pledgor had the equitable right to follow the fund received by the bank in excess of its debt through the hands of the assignee and into those of the trustee, and to recover from the latter the proceeds of his stock, less the amount of his indebtedness to the bankrupt.</p> <p>8. Same — Laches.</p> <p>The original pledgor, having no knowledge that his stock had been repledged by the bankrupt until after he had filed his claim as a preferred creditor of the bankrupt estate, cannot he said to have waived any rights, or to have been guilty of laches which wrould preclude him from thereafter asserting the same against the fund in the hands of the trustee.</p> <p>4. Same — Costs.</p> <p>In re Dickson (C. C. A.) 111 Fed. 726, affirmed as to costs.</p>

Petition to Review an Order of the District Court of the United States for the Southern District of New York. This is a petition to review an order enjoining petitioner from issuing execution on a judgment entered in the supreme court of the state of New York March 13, 1901, against the trustees in bankruptcy of F. Tennyson Neely.

Action by the United States against Herbert W. Gray to recover additional customs duties. From a judgment in favor of the United States (107 Fed. 104), defendant appeals. This cause comes here upon a writ of error to review a judgment of the district court, Southern district of New York, in favor of the United States against the plaintiff in error, who was defendant below. 107 Fed. 104.

Action by the United States against Austin P. Baldwin and others to recover customs duties. From a judgment for the United States (107 Fed. 104), defendant brings error. The action was brought to recover §285258, balance of regular duties, and §706 as additional duties, under the provisions of section 7 of the customs administrative act, as amended by section 32 of the tariff act of 1897.

<p>1. Sales — Manufactured Articles — Implied Warranty.</p> <p>Where a vendee has ordered an article of a manufacturer for a particular purpose, and has had the opportunity of inspecting it during the manufacture, and relies on his own judgment, there is no implied warranty against latent defects.</p> <p>2. Same — Acceptance—Waiver of Defects — Evidence.</p> <p>A contract for the manufacture of a motor required the purchaser to furnish an inspector to pass on all workmanship, with power to reject such as should not conform to the agreement, and to signify acceptance before removal from the factory. Such purchaser, while claiming a failure to complete the contract in the time limited, and after his inspector had complained of defects in the construction and refused to aecept the motor, accepted it in its condition, in order to get possession. The manufacturer subsequently sued for the contract price, and for extra work outside the contract. Held, that it was proper to exclude evidence as to the character of the tests made at the factory, for the purpose of showing their incompleteness, and, as to tests made after delivery, to show that alleged defects were such as not to be discernible until the motor was used, since the purchaser, by acceptance, waived the right to insist on a further test.</p> <p>8. Same — Action for Price — Prima Paoie Case.</p> <p>The contract price for the construction of a motor was not to exceed $4,000; and the manufacturer, in an action for the price and for extra work, showed that, after the motor was shipped, it sent the purchaser bills aggregating more than $4,000, and for extra work, and that the purchaser, having received and retained them, subsequently inclosed a statement of- independent counter charges, which admitted the items for $4,000, and $388.68 for extras. Held sufficient to make a prima facie case for the aggregate of such items, since the claim by the purchaser that he was entitled to items in his claim did not affect his admission of the correctness of the manufacturer’s charges.</p>

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

Tlifs is an action in mandamus. It was brought in the circuit court in November, 1900, by the filing of a petition on the relation of Edward Dana against, the village of Kent, Ohio, and its council, clerk, and treasurer.

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

Appeal by the Swan & Finch Company from a judgment affirming a decision of the board of United States general appraisers affirming the classification by the. collector of customs as to certain importations made by appellant.

<p>1. Internal Revenue — War Revenue Act oe 1898 — Constitutionality.</p> <p>Section 27 of the war revenue act of 1898, imposing a tax upon the gross receipts of refiners of oil and sugar, field constitutional.</p> <p>2. Same — Tax on Sugar Refiners — Gross Receipts of Business.</p> <p>Under section 27 of the war revenue act of 1898, which imposes an excise tax “on the gross amount of all receipts” of sugar refiners “íd their business” in excess of $250,000 annually, rentals from wharves owned by a corporation organized for and engaged in the business of sugar refining, and used as a necessary adjunct to said business, are receipts in the business, to be included in computing its gross income for the purpose of such tax.</p> <p>§. Same — Interest on Deposits.</p> <p>Interest received by such company on corporate funds deposited or invested for the time being, while not in use, is also a part of its receipts in rhe business, and subject to the tax.</p> <p>4, Same — Mode op Collection — Monthly Assessment».</p> <p>War Ilevenue Act 1898, § 27, which provides that every person, company, etc., doing the business of refining petroleum or sugar, or owning a pine line, whose gross annual receipts exceed $250,000, “shall be subject to pay annually a special excise tax” on the amount of their gross receipts in excess of said sum, and which further provides that a true and accurate return of the amount of gross receipts as aforesaid shall be made and rendered monthly by such persons or companies, requires the payment of such tax annually, and on annual receipts; and a regulation of the commissioner requiring the assessment and collection of the tax monthly, on the monthly returns, is unauthorized.</p> <p>Gray, Circuit Judge, dissenting in part.</p>

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

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

<p>1. Contracts — Construction—Question for Court.</p> <p>The construction of a contract in writing is a matter of law for the court, and it is immaterial at whose suggestion particular clauses were inserted.</p> <p>2. Same — Performance by Party Claiming Damages — Necessity.</p> <p>A party suing for breach of a contract containing mutual dependent agreements must show a perf..rmanee on his part</p> <p>8. Same — Stipulation Qualifying Guaranties.</p> <p>A provision that the usual strike clause shall mutually govern in a contract for thé purchase of all the coke manufactured by the seller during a fixed period (the latter guarantying a specified amount; the price, time of payment, and quality of the coke being agreed upon) qualifies only the guaranties that the purchaser will take all the coke manufactured, and that the seller will furnish a. specified amount, during such period.</p> <p>4. Same — Strike Clause — Suspension of Deliveries — Effect.</p> <p>A provision in a contract for the purchase of all the coke manufactured by the seller during a fixed period (the latter guarantying a fixed amount; that in ease of strikes, accidents, or other causes causing stoppage in the works of the seller, deliveries under the contract may be “suspended”) relieves the seller from the obligation of its guaranty, where such causes have prevented it from furnishing the guarantied amount during the specified time, for the word “suspended” does not mean “postponed,” and therefore the purchaser cannot demand delivery of coke, to make up the deficiency, after the expiration of the fixed period.</p> <p>5. Same — Time—Essential Element.</p> <p>In a contract for the purchase of all the coke manufactured by the seller during a fixed period, time is an essential element, because of the fluctuations in the market, and the life of the contract must be iim« ited to the time fixed by the parties.</p> <p>6. Same.</p> <p>Whore the intention of the parties to limit a contract to a certain period is manifest, time is of the essence of the contract.</p> <p>7. Same — Construction—General Rules.</p> <p>The subject-matter and purposes of a contract, and the situation of the parties to it, are material to determine the Intention of the parties and the meaning of the words used; and, where these are ascertained,, they prevail over the dry words used.</p> <p>8. Same — Breach by One Party — Repudiation by the Other.</p> <p>Where a buyer in a contract for weekly shipments of coke for a fixed period failed to pay .on the 20th of the month for the coke received during the preceding month, as required by the terms of the contract, the seller might repudiate the contract; the latter not being in default.</p> <p>9. Same — Conduct Changing Terms oe Contract — Sueeioiency.</p> <p>The terms of a contract for the purchase of all the coke manufactured by the seller for a fixed period, the seller guarantying a specified amount, are not changed by the buyer sending to tho seller orders for delivery of coke in excess of the specified amount, where such orders are received in due course of business, hut are not accepted.</p>

<p>L Appeal — Sufficiency of Record — Rulings on Admission of Evidence.</p> <p>Under the rules of practice of the supreme court and of the circuit courts of appeal, a ruling on the admission or rejection of evidence is not reviewable either on a writ of error or on appeal in equity, unless the record discloses the ruling made, and the taking of an exception thereto, and there is a specific assignment of error on that ground.</p> <p>8. Patents — Evidence of Invention — Practical Success of Device.</p> <p>Where the question of invention or patentable novelty is fairly open to doubt, the practical success of the device, with the fact that it displaced similar devices in previous use, is sufficient to turn the scale in favor of invention and sustain the patent.</p> <p>8. Same — Validity and Infringement — Lifting Jacks.</p> <p>The Barrett patent, No. 312,316, for a lifting jack, claim 3, describes an improvement over previous structures, which, while narrow, shows merit, and, in view of its practical success, must be conceded invention and novelty. Also held infringed.</p>

<p>1. Railroads — Negligence—Contributory Negligence — Brakeman — Track —Evidence.</p> <p>Plaintiff was a brakeman. As his.train approached a side track which It was to take to enable another train to pass, he, in the line of his duty, was to go forward to throw the switch. There had been a runway at the side of the track on which brakemen wore accustomed to travel, and when plaintiff saw it the summer before it and the track wore in good condition. Shortly before the injury the track had been raised, and the ballast between the ties had not been replaced, hut the spaces were filled with snow. The runway was covered with piles of slag, and was very difficult to walk on. The engineer wanted to make tha side track without stopping the train. When the train had slowed down to one or two miles an hour, plaintiff alighted from the pilot, and ran forward to-open the switch. His foot slipped between the ties, where he was held fast, and he was run over and injured by the engine. Bold, that the questions of defendant’s negligence and of plaintiff’s contributory negligence were for the jury.</p> <p>, 8. Same — Surrounding Circumstances — Evidence.</p> <p>Where a brakeman. while running on the ties in front of a moving train, the runway at the side of the track being blocked, to open a switch, fell, and was injured, testimony that the engineer told him to hurry up, and get off the front end of the engine, and get the switch over as soon as possible, so they could get in out of the way of another train without stopping, was competent as a circumstance showing the situation under which the brakeman was acting, though the engineer did not have authority to control the brakeman as his superior, within the terms of the Ohio statute.</p>

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

This is a bill brought by the appellant, D. M. Sechler Carriage Company, against the Deere & Mansur Company for infringement of letters patent numbered 593,295, dated November 9, 1897, to Clarence H. Dooley, for “combined cheek row and drill corn planter.” The bill was in the usual form, and set out at large the instrument by which it is claimed Dooley assigned the patent to the appellant.

<p>Appeal — Review—Ordee Granting Preliminary Injunction.</p> <p>An interlocutory order granting a preliminary injunction is largely discretionary, and will not he reversed on appeal unless it appears to have been improvidently entered.</p>

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

The appellant, a corporation of the state of Connecticut, filed its bill against the corporation “Peek Bros. Co.” and the individual defendants, who are its officers and directors, to restrain (1) the use of the name “Peck Bros. & Co.” or “Peck Bros. Co.” or “Peck Bros.” or names substantially identical therewith, in connection with the prosecution of the business of the manufacture, purchase, and sale of plumbing, gas and steam fitting materials and supplies, fixtures,…

<p>Appeal — Review—Action Tried to Coup.t.</p> <p>Where a jury is waived by stipulation in an action at law In the circuit court, and no exception Is taken to any ruling made during the trial, the only exceptions being to the findings and conclusion of law, and the refusal to find conclusions of law as requested, the only question reviewable in the appellate court is whether the judgment is warranted by the pleadings and the findings of fact.</p>

<p>1. Appeal — Review—Findings of Fact.</p> <p>Findings of fact made by the trial court in a suit in equity on conflicting- evidence, while not absolutely conclusive upon an appellate court, are very persuasive, and will not be disturbed except on a very satisfactory showing.</p> <p>2. Corporations — Insolvency—Unlawful Preference of Officer.</p> <p>A finding in a creditors’ suit against an insolvent insurance company and its former president and director that a transfer of securities by the company to the president on a settlement between them was made after the company had become insolvent, and was void as against other creditors as an unlawful preference, held sustained by the evidence.</p>

<p>In Equity. Creditors’ suit against the Globe Insurance Company and George F. Harding.</p>

In Equity. On motion for preliminary injunction. This case was brought by the Union Pacific Railroad Company and by the Atchison, Topeka & Santa Fé Railway Company, both companies engaged in operating railroad lines passing through several counties of the state, under and by virtue of the laws of the state of Colorado; and by the complainant the Pullman Company, as owner of railroad ears which are run over the lines of railroad of nearly all of the railroad companies of the…

<p>1. Minks — Contracts of Salk — Tims op Payment — Essence op Contract— Whitten Memorandum--Statute op Frauds.</p> <p>Where the written memorandum of an oral contract of sale o£ mining property is not certain as to the time when the first payment is to bo made, it is insufficient to take the contract out of the statute of frauds, time being of the essence of contracts relating to such properties.</p> <p>3. Same — Change op Teems op tub Memorandum.</p> <p>Where a written memorandum is made of an oral contract for the sale of real property, and the terms of the contract are afterwards changed by oral agreement of the parties, the whole thereupon becomes an oral contract.</p> <p>8. Same — Option to Purchase — When not Asskwablk.</p> <p>Where an option, not assignable in terms, to purchase mining property, is given to one who represents himself to be the agent and acting for a party known to the owner, and to whom he desires to sell, such option is not assignable.</p> <p>4 Same — Withdrawal of Option.</p> <p>Where a mine owner gives an option to purchase his mines, he may withdraw such option at any time before its acceptance.</p>

<p>1. Building and Loan Association — Stock—Loan—Place of Contract.</p> <p>Where plaintiff subscribed for stock in a Colorado building and loan association, and borro wed money .thereof, giving a mortgage on property in Utah to secure the payment, the notes and interest to be paid in Colorado, the contract was a Colorado contract.</p> <p>‘¿. Same — Interest—Hate —Patme nts.</p> <p>Whore, on borrowing from a building association, plaintiff gave a note, agreeing to pay the principal, with interest and installments, according" to the by-laws, and no rate of interest was fixed by the by-laws, but the prospectus used in inducing plaintiff to join the association, and which was part of the contract, by illustrations, showed the amount of the monthly payments, each, of the borrowing and the nonborrowing members, the excess paid by the borrowing member as so illustrated should he construed os payments of interest and not as payments on the principal.</p> <p>6. Same — Borrower—Withdrawal of Stock.</p> <p>Under the statutes (if Colorado, a stockholder who has borrowed from a building and loan association cannot withdraw his stock until the loan is paid.</p> <p>4 Same — Maturity of Stock — Mortgage—Foreclosure.</p> <p>Where at the time of borrowing from a building and loan association it is estimated that the stock will mature and pay the loan in six years, and a note is given, payable in six years, a mortgage given to secure such note may he foreclosed at the expiration of six years if such stock has not then matured.</p> <p>& Trust Deed — Foreclosure—Attorney’s Fee.</p> <p>Whore, in an action to have a note canceled, defendant, by cross bill, asks a foreclosure of the trust deed given to secure such note, alleging that the trustee refuses to act, on recovering such relief defendant is not entitled to the attorney’s fee provided in such deed to be paid to such trustee in case of foreclosure.</p> <p>6. Same — Building Association — Sale of Stock.</p> <p>Where, in an action by a building and loan association to foreclose a trust deed given by a borrowing stockholder, It is prayed that the stock of such borrower be sold, the court may require that such stock be not sold for less than its withdrawal value.</p> <p>7. Same — Withdrawal Value of Stock — Ascertainment.</p> <p>Where, in an action by a building and loan association to foreclose a trust deed and sell the stock of a borrowing member, the withdrawal value of such stock is not ascertained or stipulated by the parties, the decree should be withheld until such value has been > ascertained and reported by a master.</p>

<p>Bankruptcy — Composition—Acceptance—Majority op Creditors — Determination.</p> <p>Bankruptcy Act, § 12, declares that an application for the confirmation of a composition may be filed in a court of bankruptcy after it has been accepted by a majority in number of all creditors whose claims have-been allowed, etc. Held that, in determining whether a majority have accepted an offer of composition, an assignee of a large number of claims should be counted as one creditor only, and not as the number of creditors who have assigned claims to him.</p>

<p>1, Shipping — Injury to Stevedore — Independent Contracto».</p> <p>A ship is not liable to a longshoreman employed by a stevedore, sn independent contractor, to assist in loading, for injury caused by falling of athwart portions of hatch cover, because of failure to have in place bolts to hold the crossbeams on which such athwart portions rested; the ship having been turned over to the stevedore, and ho having removed all the portions of the hatch cover, including the crossbeams, and put them back without properly fastening them.</p> <p>8. Same — Defective Appliances.</p> <p>Any duty of a ship to a longshoreman in the employ of a stevedore. In loading, relative to suitable appliances, in tbe furnishing of. a hook for loading, is fulfilled where the hook is reasonably safe for the work In hand.</p>

<p>1. Eminent Domain — Damages—Evidence—Admissibility.</p> <p>On an issue as to the damages sustained by owners of property taken by the gwernment in condemnation proceedings, evidence showing the price fixed by agreement and paid by the government for an adjoining tract several years back should be excluded, as likely to be misleading.</p> <p>8. Same — Inspection of Property by Jury — Misconduct.</p> <p>In a condemnation proceeding, where the jury impaneled to assess the damages were taken to view the land, the fact alone that they were also conducted over adjoining property was not ground for setting aside their verdict, where it did not appear that they were misinformed aa to the identity of the land, or that there was any intentional misconduct on the part of the engineer accompanying them.</p> <p>8. Same — Setting Aside Verdict — Power of Court.</p> <p>The statutes of the state of Washington. respecting condemnation proceedings prescribe a special procedure distinct from the practice in civil actions, and the provisions of the civil practice act authorizing courts in which actions are tried to set aside verdicts for error in assessment of damages are not applicable, and do not authorize the same courts to grant new trials in condemnation cases.</p> <p>4. Same.</p> <p>2 Ballinger’s Ann. Codes & St. Wash. § 5616 et seq., relating to condemnation proceedings, does not in express terms nor by any fair implication authorize a court of original jurisdiction to set aside the verdict of the jury for error in assessment of damages or to grant a new trial.</p> <p>5. Same.</p> <p>The laws of Washington requiring the compensation to he paid to an owner of property condemned for public use to be determined by a jury, by authorizing an appeal and specially conferring power on the appellate court to pass on the justness of the award, in effect denies the right of a court of original jurisdiction to set aside the jury’s verdict.</p> <p>8. Same — Constitutionality of Statute Allowing Appeal.</p> <p>The statute of Washington relating to condemnation proceedings, in so far as it authorizes an appeal to the supreme court of the state and empowers that court to consider the justness of the compensation awarded, is constitutional whether or not the provision authorizing the court to determine finally the compensation is invalid, the provisions being separable.</p>

In Admiralty. Libel to recover damages for breach of a contract by which the libelant was engaged to serve as master of the schooner Laurel on a fishing voyage, the allegations being that a contract was fully agreed to, and that, after the libelant had entered upon the performance thereof, it was, without his consent, repudiated by the owner of the vessel; that by his engagement he missed opportunities of going as master of other fishing vessels, and has been deprived of…

<p>1. Taxation of Costs — Conformity to Locan Practice.</p> <p>Prior to Act Feb. 26, 1853 (10 Stat. 361), the taxation of costs in the federal courts in the various districts conformed to the practice of the state in which the district was situated, and the same since its enactment, as to all items of costs not specially covered thereby,</p> <p>.8, Same — Discretion of Court.</p> <p>While the federal courts in taxing costs are to follow the local practice, except so far as modified by statute or by special usages, they are not so far bound thereby as to be embarrassed in doing justice.</p> <p>8, Same — Expenses of Auditobskii’-Massachusetts Practice.</p> <p>According to the practice in Massachusetts, the taxable expenses of an auditorship aro all charged on the defeated party, except so far as borne by the public authorities.</p> <p>4. Same.</p> <p>After hearing the opening of this case the court of its own motion, neither party objecting, discharged the jury and appointed an auditor. After the coming in of his report plaintiff moved to amend his writ so as to embrace all matters which lie maintained were within the scope of the report, and, his motion being disallowed, submitted to a discontinuance. Afterwards each party paid one-half of the auditor’s fee., Held1 that, under the circumstances, no part of the fee paid by either party should be taxed in his favor against the other.</p> <p>8. Same — Witness Fees.</p> <p>As a general rule, the fees of witnesses appearing before an auditor are taxed against the losing party.</p> <p>8. Same — Certificate of Witness — Affidavit.</p> <p>In taxing witness’ fees, the certificate of the witness in the usual form is prima facie sufficient without an affidavit.</p> <p>7, Same — Actúan Prepayment — Necessity.</p> <p>The certificate of the witness need not show that his fees have been actually paid by the successful party, but they may be taxed against the loser notwithstanding, the successful party being alone liable for them.</p>

<p>1. Mortgages — Priority of Rf.cord — Failure to Record — Effect.</p> <p>Under Rev. St. N. J. p. 2106, § 22, providing that a mortgage shall be void against a subsequent bona fide mortgagee for a valuable consideration without notice, a party asserting priority for a mortgage recorded after the recording of a subsequent mortgage must prove that the subsequent mortgagee did not pay a valuable consideration, or that at the time of taking the mortgage he had notice of the prior mortgage.</p> <p>2. Same — Subsequent Mortgage — Notice — Consideration — Evidence—Sufficiency.</p> <p>In an action demanding that a mortgage be a prior lien to a mortgage subsequently executed, but recorded before the former mortgage, the mortgagor testified that he did not inform the subsequent mortgagee of the existence of the prior mortgage. The mortgagee testified that he had not heard of such prior mortgage, and that he paid the consideration for the mortgage. He admitted knowledge of another mortgage. This was all the evidence on notice and payment of the consideration. Heidi that, if this evidence he disregarded on the ground of its improbability, though express testimony cannot he rejected solely on that ground, the presumption of want of notice of the prior unrecorded mortgage or of the payment of the consideration is not overcome, and tins subsequent mortgage, having priority of record, constitutes a prior lien.</p> <p>8. Same-Payment of Ií'orhkr Mortgage — Subrogation.</p> <p>A mortgagee in a mortgage prior in date and subsequent in record to a mortgage subsequent in date and pri ,r in record, who pays a former mortgage of record at the time of the recording of the subsequent mortgage, cannot be subrogated to the rights of the paid mortgagee, as against an assignee of the subsequent mortgage, the latter relying on the record, and believing the inc rtgage to be a first lien.1</p> <p>i. Same — Priority of Record — Order of Priority.</p> <p>An assignee of a mortgage subsequent in date and prior of record to a mortgage prior In date and subsequent of record, who finds on the record the mortgage prior in date and subsequent In record, does not have actual notice of such prior mortgage, so as to put him on inquiry, the record alone showing the order of priority of the two mortgages.</p>

At Law. Action by plaintiff, as administratrix, to recover damages for the alleged wrongful death of her intestate. After the plaintiff had rested her case, counsel for defendant moved the court to instruct the jury to find a verdict for the defendant, on the follow-in grounds: First. That there is no negligence shown on the part of the defendant by the evidence. Second.

<p>3. AD’foR.VLTT~ JOINDBK OF DEFENDANTS — SUIT ON CONTRACT OF AFFBKICHTyfcONT.</p> <p>A ship and Its charterers may be joined as defendants in a suit in admiralty to enforce a contract of affreightment where both are charged willi liability for its breach, such practice being within the spirit, though not the letter, of admiralty rule 59.</p> <p>Same — Practice—Power of District Court to Establish.</p> <p>A district court has power, under admiralty rule 46, to establish the practice of permitting process in rein and in personam to issue upon the same libel, either by rule or decision.</p>

<p>In Equity Sur motion to strike off plea.</p>

<p>1. Security for Costs — Affidavit of Poverty.</p> <p>Plaintiff may file a proper affidavit of poverty, though a former affidavit of poverty, under Act July 20, 1892 (27 Stat. 252), has been adjudged insufficient, and an order to give security for costs has been made.</p> <p>8. Same — Truth of Affidavit — How Contested.</p> <p>The filing of the affidavit of poverty, under Act July 20, 1892 (27 Stat. 252), and not the truth of it, constitutes the answer to defendant’s demand for security for costs, and defendant can only contest this truth by a motion to dismiss under the fourth section.</p>

In Bankruptcy. Application in the matter oí McCallum & Mc-Callum, bankrupts, for leave to sue the trustee in bankruptcy in the state court. Refused.

<p>Í. Trespass — Removal oe Timber — -Preliminary Injunction.</p> <p>Where a bill to remove cloud and enjoin trespass on land, on which a temporary restraining order is issued, is against numerous defendants, with a diversity of interest, some of whom do not answer, it will be taken pro eonfesso, and the restraining order continued to the hearing, as to the defendants not answering.</p> <p>2. Same — Vacation.</p> <p>Where a complaint against numerous defendants seeks, in equity, to establish title, remove cloud, and enjoin trespasses on land, and a defendant in possession of part of the land traverses complainant’s title, denies all allegations of trespass, and sets up an apparently good title, thus raising issues of law, which must be tried in an action of ejectment, the court will direct a temporary restraining order vacated, unless proper steps are taken within 10 days for the trial of defendants’ right to retain possession.</p> <p>S. Same.</p> <p>Where a defendant in a suit In equity to establish title, remove cloud, and enjoin trespasses on land, claims title, and avers that it has established, In good faith, lumbering works on the land, at great expense, and has in preparation for market quantities of timber, which will cause It great loss if not immediately prepared for commerce, the court will dissolve a temporary restraining order on such defendant giving bond conditioned that, if so required, it will account to complainant for timber used from the land, and further direct such order vacated unless complainant within 20 days formulate issues for the trial of the title to the lands by a jury.</p>

<p>1. Corporations — Call on Stock — Liability.</p> <p>The registered owner of preferred stock of a corporation, on call made thereon during the continuance of such ownership, becomes charged with a definitive debt, and is liable thereon, though he has made no express promise to pay.</p> <p>2. Same — Transfer of Stock — Liability for Call.</p> <p>Where the registered owner of corporation stock, after call made thereon, transferred his shares on the books of the corporation to a purchaser before any installments of the call were 'payable, he was not thereby relieved from his obligation to pay the call, which became a fixed debt at the time of the call.</p> <p>8. Same — Assent of Corporation.</p> <p>The assent of a corporation to a transfer on its hooks of preferred shares, on which a call has been made, does not relieve the registered owner thereof at the time of the call from the liability fixed by the call.</p> <p>4. Same — Forfeiture for Nonpayment of Call —Cumulative Remedy.</p> <p>Though a corporation is authorized by statute to forfeit shares of stock for nonpayment of calls made thereon, it can still enforce payment thereof by action against the registered owner of such shares at the time of the call; the remedy of forfeiture being merely cumulative.</p> <p>5. Same — Exchange of Shares for Paid-Up Shares — Remedy of Objecting Stockholder.</p> <p>Where the directors, authorized by the stockholders of a corporation, resolved to issue paid certificates of preferred st. ck on which $20 was paid in exchange for outstanding unpaid shares of preferred stock, and to place in the treasury of the company the remaining shares, the remedy of an objecting stockholder would be a suit to restrain consummation of such proceeding.</p> <p>6. Same — Calls — Extension of Timm — Exchange of Shares for Paid-Up Shakes— Forfeiture of Franchise.</p> <p>The directors of a corporation passed resolutions extending the time for payment of the first Installment of a call on preferred shares, and directing an exchange of stock, whereby two shares of full-paid and nonassessable preferred stock should be exchanged for five shares of the preferred stock on which $20 would have been paid; thus leaving three-fifths of the preferred stock in the treasury, and two-fifths outstanding. HeW to show no effort to reduce the capital stock of the corporation, by purchasing its stock or otherwise, so as to forfeit its franchise, and thus deprive it of the right to recover the debt incurred by a stockholder by a call on the preferred stock.</p> <p>7. Same — •Recovery of Call — Affidavit of Defense — Sufficiency.</p> <p>In a suit by a corporation to recover an unpaid call on stock, an affidavit of defense alleging fraud in making the call, and that in order to carry out the fraud an assessment ’ was levied, though unnecessary for any purpose of the company, but not alleging- that the assessment was in excess of the directors’ powers, or would be unnecessary if it were intended that the company should continue to prosecute its business, is insufficient.</p> <p>8. Same — Affidavit of Defense — Sufficiency.</p> <p>Under Rev. St. U. S. § 954, which requires United States courts to proceed to judgment according to the right of the cause, without regarding any defect in a declaration, except those which, in cases of demurrer, the party demurring specially set down, together with his demurrer, as the cause thereof, an affidavit of defense in an action by a corporation to recover a call on stock, stating that the statement of claim shows no cause of action, and is insufficient to justify a verdict or judgment, amounts, at most, to a general demurrer, and Is insufficient to har the cause of action.</p> <p>9. Same — Df.olaration—Sub’ftcibnoy.</p> <p>A statement of claim alleged that defendant was the registered owner of a certain amount of stock in plaintiff corporation, and that by virtue of a call, notice, and demand therfe’on, which were set forth, defendant became liable to pay a specified amount No agreement by defendant to pay the call in question was alleged, nor was the plaintiff’s certificate of incorporation made part of the declaration. Defendant was not alleged to be the holder of the stock at the time when the call became due and payable. HeldI, that the declaration was sufficient.</p> <p>10. Same — Defense—Irregularity of Organization.</p> <p>The owner of stock in an acting corporation cannot defend himself in an action to recover calls made on such slock by alleging irregularity of the corporation’s organization.</p> <p>11. Same — Declaration—Amendment.</p> <p>Under Iiev. St. U. S. § 954, which requires United States’ courts to give judgment without regarding defects in a declaration, except those which, in cases of demurrer, the party demurring specially set down together with his demurrer, as the cause thereof, a statement of claim in an action by a corporation to recover unpaid calls on stock may be amended by an allegation that the balance remaining due on the stock after the first installment thereon had been paid has not since been paid.</p> <p>13. Same — Affidavit of Defense — Amf.ndment.</p> <p>Where an amendment of a statement of claim has been allowed, a supplemental affidavit of defense, confined to the subject-matter of such amendment, will also be allowed.</p>

<p>Receiver's Accounts — Mutual Claims.</p> <p>For a system of railroads, at the head of which was the C. Oo., and among which was the P. Oo., the federal court t'or Georgia appointed H. receiver; and, the greater part of the P. road being in South Carolina, the federal court therefor, in ancillary proceedings, confirmed and recognized the appointment of H. as receiver of the P. road. Thereafter the federal court for Georgia dismissed the bill so far as it related to the P. road, and discharged such road from the custody of the receiver; and the federal court for South Carolina thereupon, by order contemplating that H. should account before the federal court for Georgia, adopted its decree of discharge. Thereafter A. was appointed receiver for tlie P. road by tbe state court of South Carolina. Held that, a» against claim of A. and his successor in interest for amount due the P. road by H. as such receiver, there could be set oh' claims against A., as receiver of the P. road, for supplies afterwards furnished him by H. and his successors, the receivers of the C. Co,</p>

<p>1. Railroads — Carriage of Mail — Negligence—Loss of Package — Liability.</p> <p>A railroad carrying mail for the government owes no duty to the addressee of a package rendering the railroad liable for the loss of the same through its negligence.</p> <p>2. Same — Degree of Care.</p> <p>Conceding that a railroad may be held liable by the addressee of a package for the loss of the same in the mail through the railroad’s negligence, the degree of care required is only the reasonable care exacted of an ordinary bailee for hire.</p> <p>8.' Same — Complaint—Allegation—Sufficiency.</p> <p>A complaint in an action against a railroad company alleged the mailing of a valuable package to complainant, and its carriage by the railroad company to its station, where it was alleged that the mail sack was delivered to defendant’s station agent, whose duty it was to safely care for the mail sack during the night; that the agent left the station, and that a road master or foreman of the railroad entered the station, and with a false key opened the mail sack; and that such foreman had access to the office or room where the mail sack was deposited, and was permitted to go and come therefrom at will. Meld1, that the facts stated in the complaint failed to show a lack of ordinary care on the part of the railroad.</p>

<p>1. Removal of Causes — Nature of Controversy.</p> <p>An action by a trustee in bankruptcy to recover the amount of an alleged preference is not one arising- solely by virtue of a state statute, and of which a court of equity would not otherwise have jurisdiction, but is properly maintainable in equity in a state or federal court, and, therefore, the diverse citizenship properly appearing, and the amount being sufficient, may be removed into the federal court.1</p> <p>2. Same — Diverse Citizenship — Nominal .Parties.</p> <p>Defendant’s counsel, in whose hands it is sought to attach money belonging to defendant, are not such necessary parties to an action by a trustee in bankruptcy to recover an alleged preference received l>y defendant as would prevent defendant frcm removing the cause to a federal court, where it is a citizen of a different state from plaintiff, notwithstanding that counsel are citizens of the same state.</p>

<p>t> Collision — Steamek and Anchobed Vessel — Excessive Speed in Hakboh at Night.</p> <p>The steamer John H. Starin, while passing down Now Haven harbor about 11 o’clock at night, near the center bf the channel, which waa there 800 feet wide, and at a speed of 12 knots, came into collision with the anchored schooner Gurney and sunk her. Held, that the steamer was in fault for violation of the rule requiring her to keep to the right side of the channel, and because she was going at a dangerous speed, in view of the known fact thar it was the custom of vessels to anchor in any part of the harbor, and that a number of vessels were then anchored therein, and further because, under the evidence, if she had kept a proper lookout she should have seen the schooner for a mile or more.</p> <p>8. Same — Contkibutouy Fault — Pbesumptions.</p> <p>Under the rule that, where the fault of one vessel for a collision is clearly established, she must establish the contributory fault of the other by evidence equally clear, and that every presumption will be indulged in favor of the latter, where there was evidence showing that a light was burning on an anchored schooner half an hour or less before she was struck and sunk by a passing steamer, which was clearly in fault, it will he presumed that such light was burning at the time of collision.</p>

<p>In Bankruptcy. The following is the opinion of the special master:</p> <p>This is an examination of alleged bankrupts under section 9b, Bankr. Act, referred to tlio undersigned, as special master, by an order of the district court dated November 10, 1901, with leave to the alleged bankrupts “to set up, assert, and present such preliminary objections to the sufficiency of the papers herein, to the regularity of these proceedings, and to the jurisdiction, as though the same were personally presented” to the court. Ther* seems to he little, if any, dispute on the facts, which may he stated as follows: On November 7, 1901, Emmett W. McConnell filed a petition in involuntary bankruptcy against Samuel Schenkein and Martin A. Coney, alleging, among other things, that the latter were “copartners and persons united in interest in the management and care of an institution known and described as the ‘Infant Incubators’ at the Pan-American Exposition, Buffalo, N. Y., and that your petitioner is a creditor of the said Schenkein & Coney, and your petitioner has an approvable claim against them, amounting, in the aggregate, in excess of securities held by him, to the sum of five hundred dollars.” The petition also alleges that under the agreement between the petitioner and the alleged bankrupts, whereby, for certain considerations, he was to receive twenty-five per cent, of the gross receipts of the concession known as the “Infant Incubators,” there “became and was due and owing your petitioner * * * the sum of thirty-one thousand two hundred and fifty dollars, no part of which has been paid, except the sum of fourteen thousand dollars, leaving a balance yet due and owing your petitioner of seventeen thousand two hundred and fifty dollars, with interest from November 1, 1901.” The petition also alleges that the petitioner had previously begun an action in the supreme court of the state of New York on such indebtedness, and in such action obtained an attachment against “the property, building, paraphernalia, and appliances used by said Schenkein & Coney in the display at the Pan-American Exposition aforesaid,” and that under such attachment the sheriff of Erie county has attached and taken possession of the same, and between fifty and sixty dollars in cash found on the premises, and about forty dollars on deposit in a local bank. The petition also shows that in such action an order of arrest was granted, and the debtors taken into the custody of the sheriff of Erie county, who at that time still had custody of them, but from whose custody, it appeared on the argument, they have since been released. The petition alleges as the act of bankruptcy committed by the alleged bankrupts that they have, “for the purpose of hindering, delaying, and preventing the collection of your petitioner’s claim, and the claims of their other creditors, if any, and to defraud, wrong, and cheat and swindle your petitioner and their other creditors, if any, * * * concealed, assigned, transferred, and disposed of all moneys collected in said infant incubators by the exhibition thereof, and not remaining in their hands, in the sum of twenty-nine thousand dollars.” On this petition, and on the affidavits of the petitioner, Emmett W. McConnell, and his attorney, Percival M. White, filed at the same time, the district court, on the 7th day of November, 1901, issued a warrant, directed to the marshal of the district, whereby he was required to bring the alleged bankrupts “before the court forthwith for examination, and thereafter and thereupon to hold such bankrupts * * * as this court may direct”; such warrant reciting the commission of an act of bankruptcy, and that the alleged bankrupts “are about to sell, assign, transfer, their property for the purpose of hindering and defrauding their creditors, and that they, and each of them, are about to leave this district * * * to avoid examination, and that their departure, or the departure of either of them, will defeat these proceedings in bankruptcy.” The marshal thereupon took the alleged bankrupts into custody, and brought them into court for examination, whereupon the order of reference previously mentioned was made. Other facts will appear from the discussion of the questions raised by the respective parties.</p> <p>The alleged bankrupts have appeared by counsel, and raised three preliminary objections to this examination, all of them going to the jurisdiction. For the purpose of this examination, they seem to have waived any technical objections to the papers themselfes, — as, tor instance, the úse of the word “approvable,” instead of “provable,” in the petition, — so that the questions to be determined are three: (1) Whether the petitioning creditor and the alleged bankrupts were partners. (2) Whether, because of the unsurrendered attachment, the petitioner has a petitioning creditor’s debt at all. (3) Whether the petition itself does not show the alleged bankrupts to be solvent.</p> <p>1. Tt Is conceded by the respective attorneys that, if the agreement between McConnell and Schenkein and Coney amounts to a partnership, under Ex parte Richardson and in re Palmer, 3 Deac. & C. 244, Ex parte Briggs and In re Notley, 3 Deac. & C. 367, and Ex parte Gray, 4 Deac. & C. 779, the petitioner hero has not a petitioning creditor’s debt, and this plea to the jurisdiction will be fatal, not merely to this branch of the proceeding, but to the proceeding itself. It seems strange that this question has never been up in the United States: Robinson v. Hanway, Fed. Cas. No. 11,953, being in point only by analogy. There can. however, he no doubt that the principles iaid down in the English eases cited express the law. Was, then, tiie arrangement between McConnell and Schenkein and Coney a partnership? By. stipulation, the original agreement, hearing date April 10, 1900, and signed by the three individuals, lias been made a part of the papers on tills proposed examination, and a construction of it is necessary to determine the rights of the parties. Without quoting-from such agreement in detail, it may be sufficient to summarize as follows: The counsel for the petitioning creditor claims that this agreement does not constitute the parties partners, for the following reasons: The words “partner” and “partnership” do not occur therein; Schenkein and Coney are together parties of the first part, and McConnell alone party of the second part. McConnell agrees to lend not more than $15,COO to Schenkein, — he being the official concessionaire,----and not to tiie two. McConnell is given title to the plant until he is repaid such Iran. Schenkein and Coney, and not McConnell, have title to tiie plant after such loan is paid. Nothing on tiie face of tiie agreement indica íes the rate of division, either as to profits or losses, between 'áchonkein and Coney. Nothing on the face of the agreement amounts to a covenant to share losses. Nothing on the face of the agreement amounts to a covenant to share net profits. Nothing on the face of the agreement amounts to a covenant on McConnell’s part to devote his time or services. Notliing on the face of the, agreement indicates that there was any consideration for the agreement, save the advance of money. Creditors other than McConnell are not affected; he being, as is alleged, the only creditor. The counsel for the alleged bankrupts claims that this agreement covers a period of three years, and prevents all throe parties from engaging in any other-similar business during that period; it appearing to have been tiie original plan to conduct the same exhibit not merely in Buffalo, but at the then proposed expositions at Toledo, Ohio, and St. Louis, Mo.; that the petitioning creditor has a proprietary interest in certain of the avails of the business, under the clause which is as follows: “It is understood and agreed by the parties hereto that should the parties of the first part, or either of them, prepare any lotions, foods, powders, or other preparations, or should any of the parties hereto adopt any lotion, food, or other preparation, to he used in Ote care and using of infants, and shall have the same protected by trademarks, copyrights, or patents, the party of the second part shall have an undivided cne-fourth interest in said trade-marks, copyrights, or patents;” that the interest of none of the three could he disposed of without the consent of the others; that in one of the recitals of the agreement it is slated that McConnell “desires to take an interest in said concession of infant incubators”; that McGonnell has the right to appoint a representative or cashier; that the gross receipts were to be divided daily in the presence of all the parties, in brief, tiie agreement would seem to indicate that the concessionaire, Schenkein, who had associated with him the alleged bankrupt, Coney, needed money; that McConnell was willing to furnish the money to install tiie plant, provided he had title to the same until ho could he repaid bis advancement, he to take onc-half of the gross receipts until such repayment was accomplished, and then to receive one-fourth of the gross receipts thereafter, the title to the plant to vest instantly in Schenkein and Coney, and McConnell to have no interest in the business save his 25 per cent, other than the one-fourth proprietary interest in the lotions, foods, powders, and other preparations which should be used in the plant, and then only after the same had been protected by trade-marks, copyrights, or patents. I am frank to say that my first impression of this arrangement, which was based upon the petition and affidavits, was that it was a partnership. The submission of the original agreement, however, has led to the opposite conclusion. The law of the state of New York, which is, of course, controlling on this proposition, — this being a New York contract, and carried out in that state, — while not entirely clear, seems to be summed up in the following, from Richardson v. Hughitt, 76 N. Y. 55, 32 Am. Rep. 267: “The general rule, no doubt, is that, to constitute a partnership, there must be a community of interest inter sese, and that the parties shall share the profits and loss. 3 Kent. Comm. 23; Pattison v. Blanchard, 5 N. Y. 186. This, however, is not without exception, and, where there is an agreement for sharing in the profits of a business, in some cases it is sufficient to establish a partnership as to third persons. See Manufacturing Co. v. Sears, 45 N. Y. 797, 6 Am. Rep. 177. And here comes in another exception to the rule last stated, which is that where the person has úo interest in the capital or business, and is to be remunerated for his services by a compensation from the profits, or measured by the profits, or what is to depend, as in case of seamen or other voyages, upon the result, it has no application. Where, then, one is only interested in the profits of a business as a means of compensation for services rendered, he is not a partner. Leggett v. Hyde, 58 N. Y. 272, 280, 17 Am. Rep. 244; Smith v. Bodine, 74 N. Y. 30; Vanderburgh v. Hull, 20 Wend. 70; Burckle v. Eckart, 1 Denio, 337, on appeal 3 N. Y. 132; Fitch v. Hall, 25 Barb. 13; Lamb v. Grover, 47 Barb. 317; 1 Smith, Lead. Cas. (5th Am. Ed.) 292. These eases fully sustain the doctrine laid down, that, where the profits are a measure of compensation, no partnership is created.” Compare, also, Curry v. Fowler, 87 N. Y. 33, 41 Am. Rep. 343; Cassidy v. Hall, 97 N. Y. 159. The rule laid down in Richardson v. Hughitt, supra, has been distinguished by the same court in such cases as Hackett v. Stanley, 115 N. Y. 625, 22 N. E. 745; Magovern v. Robertson, 116 N. Y. 61, 22 N. E. 398, 5 L. R. A. 589; Bank v. Gallaudet, 122 N. Y. 655, 25 N. E. 909, — cited by the counsel for the alleged bankrupts. But a careful reading of these cases will discover points which make them clearly distinguishable from the ease at bar. In Hackett v. Stanley the agreement was “to divide equally the net profits of the business,” and recited that the arrangement was not merely in consideration of the loan, but “in further consideration of services of the said party of the second part in securing sales in said business, and for any further moneys he may, at his own option, advance for use in said business.” In Magovern v. Robertson the parties seeking to avoid partnership liability were by the agreement given one-third of the net profits “in consideration of their indorsement and their general interest in the business.” In Bank v. Gallaudet the parties were to share equally in the profits after the partner who made the advances had been repaid. In other words, there was a sharing in the net profits. In all of these eases, too, the question arose between outside creditors and the alleged partners, — a very different proposition, on the equities, at least, from that at bar, where the question is between three persons who were parties to a written agreement fixing their rights. It is undoubtedly true, as urged by the counsel for the alleged bankrupts, that the giving of a proprietary interest in the lotions, etc., to McConnell, is strong evidence of a partnership. Magovern v. Robertson, supra. But I cannot agree with him that this element of the agreement alone should negative the numerous elements the other way, — certainly not on a preliminary objection of this kind; for I take it that this point will be brought to the attention of the court when the merits of this controversy are to he determined; that is, after the alleged bankrupts shall have filed their answer to this petition. The objection to the jurisdiction on the ground that McConnell is a partner of the alleged bankrupts, and therefore has not a petitioning creditor's debt, is overruled.</p> <p>2. But has this creditor, who comes into court alleging his attachment, and not offering to surrender it, a petitioning creditor’s debt? Manifestly if an attachment is a preference, he has not such a debt. In re Rogers Milling Co. (D. C.) 102 Fed. 687; In re Gillette, 5 Am. Bankr. R. 119, 104 Fed. 709. And Judge Seaman, in Re Burlington Malting Co., 6 Am. Bankr. R. 369, 109 Fed. 777, has held (the facts being strikingly similar to those here) that an attachment is a preference. That case, however, rests on the doctrine of equivalency between the two terms, — a doctrine with which, though with great respect, T cannot agree. The learned judge overlooks the very kernel of Pirie v. Trust Co., 182 U. S. 438, 21 Sup. Ct. 906, 46 L. Ed. —-,_*-that without which it is as sounding brass, — namely, its ruling that section 60a defines a •‘preference.” Tims: “Subdivisions ‘a’ and ‘b’ are concerned with a preference given by the debtor to his creditor. Subdivision ‘a- defines what shall constitute it, and subdivision ‘b’ states a consequence of it, — gives a remedy against it. The former defines it to bo a transfer of property which will enable him to whom the transfer is made to obtain a greater percentage of his debt than other creditors. The latter provides a consequence lo he that the transfer may be avoided by the trustee, and the property or its value recovered, provided, however, that the preference was given within four months before the filing of the petition in bankruptcy, or before the adjudication, and the creditor had reason to believe a preference was intended. So far, so clear.” Now, an attachment is neither a “judgment” nor a “transfer.” It cannot, therefore, be a “preference.” It need not be surrendered under section 57g. Unless there is other objection to it, it may coexist with a petitioning creditor’s debt. Looked at from the broader ground of the p licy of the iaw, the question is close.- — so close Uiat, were it urged on the merits, and not preliminarily to prevent an examination to which this petitioning creditor has some right, the decision here might be the other way. An attaching creditor, under the law of 1807, seems to have been admitted or excluded from the bankruptcy courts somewhat at will. Thus such creditors could intervene and object to an adjudication. In re Bergeron, Fed. Cas. No. 1,342; In re Mendelsohn, Fed. Cas. No. 9,420; In re Hatje, Fed. Cas. No. 6,215. Tot such creditors could not be counted when the question was whether an involuntary petition represented the required proportions in number and amount, In re Scrafford, Fed. Cas. No. 12,558, reversing same case below, Fed. Cas. No. 12,557. The reason for the distinction seems to be that in the former cases their attachments would bo avoided by the bankruptcy; in the latter, their claims, if counted, might put the nonattaching creditors at the mercy of those who had attached. Under the law of 1867, no secured creditor could petition In re Frost, Fed. Cas. No. 5,134; In re Green Pond R. Co., Fed. Cas. No. 5,786. Contra. In re Stansell, Fed. Cas. No. 13,293. Compare, also, In re Rado, Fed. Cas. No. 11,522; In re Currier, Fed. Cas. No 3,492. This doctrine forced Judge Dyer, of Wisconsin, to hold in Re Broich, Fed. Cas. No 1,921, that an attaching creditor is not a secured creditor, and has, therefore, a petitioning creditor’s debt. It is not necessary hero to determine whether, under the present law. an attaching creditor is, strictly speaking, a “secured creditor.” H unsecured, he surely has standing here. If secured, under the present law (§ 59b), this objection being in the nature of a demurrer, his allegation, which is, in substance, that the attachment is a security worth at least $500 less than his claim, is sufficient. The only case directly in point under the law of 1807 is In re Hazens, Fed. Cas. No. 6,225, decided by Judge Dillon after his decision in Re Serafford, supra. He takes broad ground, seeming to admit that an attachment is a security, and, while decreeing that a creditor who is fully secured by attachment cannot, while holding on to his attachment, sustain on the same debt a petition to force bis debtor into bankruptcy, adds: “If, however, a creditor is not fully secured, it is, I think, quite prohable that, as to the excess of his debt over the value of the security, he is to be regarded as unsecured.” Thus clearly implying that the case is.authority only where the attachment lien equals the debt. This bread view has now become a part of our statute (Bankr. Act. 59b, 57e). In a close question like this, it is safer to follow it, than would foe the opposite course. I am not unmindful of the great force of Judge Seaman’s remarks in Re Burlington Mailing Co., supra, holding that an attaching creditor has elected his remedy. But it has been held that a lien creditor waives his lien by the mere fact of filing- a petition. In re Bloss, Fed. Cas. No. 1,562. Under section 67f, this creditor would undoubtedly be admitted to prove his claim only on condition that his attachment lien be considered null and void. He does not give up his lien in so many words, but his petition is the first of a series of acts which make that surrender inevitable. There may be some cases — and this is apparently one — where the attachment did not reach the property at which it was aimed. If this creditor has a debt in $17,250, as h» alleges, the security is palpably insufficient. The attachment and the petition were but a few days apart. The claims of other creditors are not involved, for there are no other creditors. It would be unjust, at least at this stage of these proceedings, to hold no jurisdiction on these grounds. .This objection is, therefore, for the purposes of this examination, overruled.</p> <p>3. Nor is it important whether this imtition show insolvency. The act of bankruptcy alleged is the first. Section 3a (1). The quantum of this estate is kept under cover. Citizens’ Bank of Salem v. W. C. De Pauw Co., 5 Am. Bankr. R. 345, 45 C. C. A. 130, 105 Fed. 926. There is a concealment here, which, if the facts alleged in the petition and affidavits are true, is with intent, at least, to hinder and delay this creditor. By section 3e the burden of pleading and proving solvency is on the alleged bankrupts. Compare West Co. v. Lea, 174 U. S. 590, 597, 19 Sup. Ct. 836, 43 L. Ed. 1098. They cannot he allowed at this time to object to jurisdiction on this ground.</p> <p>The preliminary objections are therefore overruled, and the examination will proceed at 11:30 a. m. on January 13, 1902, unless on or before January 10, 1S02, the alleged bankrupts shall file a petition for review, which will in that event be granted. William H. Hotchkiss, Special Master.</p>

<p>1. Patents- -Infringement— Box-Strap Reel— Anticipation.</p> <p>Cary patent, No. 403,247, dated May 14, 1889, for a reel for box straps, held, in view of a partial anticipation by Fleisker’s reissued patent, No. 9,019, dated January 6, 1S80, not to bs infringed by defendant’s reel.</p> <p>2. Samk — Sale—Innocent Purpose — Effect.</p> <p>While one selling a patented device for a use which would be an infringement might ho liable as a participator, ho would not he liable for an improper use made by the purchaser afterwards, and not contemplated in making the sale.</p>

<p>Patent — Infringement.</p> <p>The Barrett patent, No. 445,217, for a thermal cut-out, held not infringed.</p>

<p>Bill — Causes of Action — Jurisdiction—Improper Joinder — Demurrer.</p> <p>A demurrer to a bill wbicb includes a cause of action for unfair competition, of wbicb the court is without jurisdiction for want of the necessary diversity of citizenship, with a cause of action on a patent, of wbicb the court has jurisdiction, will be sustained, unless within 10 days plaintiff dismisses the former.</p>

<p>1. Federal Courts — Following Decisions of State Courts — Limitation and Laches.</p> <p>A federal court, although sitting in equity, may follow the rule of decision of the state courts upon the questions of limitation and laches.1</p> <p>2. Equity — Laches—Suit Based on Legal Title.</p> <p>Under the rule of decision in Texas, where the title of a complainant to lands, upon which he bases his right to relief in equity, is a legal one, capable of being established at law, the doctrine of laches and stale claim does not apply, but his rights are barred only by adverse possession; and on general principles equity will follow the law on such question, where the jurisdiction is concurrent.</p> <p>8. Judgments — Persons Concluded — Party by Representation.</p> <p>A widow entitled under the laws of Texas to a life estate in one-third of real estate owned by her husband, which consisted of an undivided interest inherited from his father, is not hound by a compromise judgment entered in an action brought by her children and the other heirs of their grandfather against an adverse claimant, to which action she was not a party. The fact that her co-tenants might have recovered her interest in their own names did not render her a party by representation.</p> <p>A Estoppel — Life Tenant -Acceptance of Proceeds of Sale by Remainder-men.</p> <p>The acceptance by a married woman, as a gift from her children by a former marriage, of a part of the money received by them in payment for their interest in lands inherited from their father, in which she had a life estate under the laws of Texas, did not estop her from asserting her rights as life tenant as against the purchaser, where her children did not undertake to convey anything more than their own interest.</p> <p>B. Dower — Estate of Surviving Wife Under Texas Statute — Mineral Rights,</p> <p>The land and marital laws of Texas are derived largely from tho civil law, and tho life estate given thereby to a surviving wife in the lands of her deceased husband is broader than the common-law dower; such life estate being one which under tho civil law could not have been impeached for waste, and which would have carried with it the right to open and work every kind of mines on the property.</p> <p>ft. Same.</p> <p>The statute of Texas governing “descent and distribution,” after providing for the distribution of the personal estate of an intestate who leaves a surviving husband or wife and children, further provides (Rev. St. art. 1089) that “the surviving husband or wife shall also he entitled to an estate for life in one-third of the land of the intestate, with remainder to the child or children of the intestate or their descendants.” Meld, that the word “land” is employed in such statute in its most comprehensive sense, and that a surviving husband or wife takes a one-third interest for life in the land itself, as such, including not only the surface, but also all minerals therein, and is entitled to a proportionate share of the income or profit derived from the extraction of such minerals during his or her lifetime, whether operations were commenced prior to the death of the decedent, or subsequently by the remainder-men or owners of the other undivided interests.2</p> <p>7. Receivers — Grounds for Appointment — Impounding Interest in Oil Production.</p> <p>Complainant’s husband died intestate, leaving her and two children surviving, and being the owner at the time of his death of an undivided one-sixth interest in certain lands in Texas, in one-third of which, under the laws of the state, complainant took a life estate. No division of the lands affecting complainant’s interest was ever made. Subsequently defendants acquired the interests of all of the other tenants in common of the property, including the interest of complainant’s children as remainder-men, and drilled numerous oil wells thereon which produced large quantities of oil. Helé, that complainant was entitled either to one-eighteenth of the net proceeds of the oil produced, or to the income which such share would produce during her lifetime, and that, while she was not entitled to the appointment of a general receiver to take control and management of the property, she was entitled to the appointment of a special receiver to collect and hold such share of the proceeds pending the determination of her rights therein; the defendants being numerous, and for the most part corporations formed for the sole purpose of producing and selling oil.</p>

<p>Appeal from the 'Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decision of the circuit court reversing a decision of the board of general appraisérs, which affirmed the assessment for duty of certain marble statuary.</p>

<p>1. BAxroujPTcT — Cnoosixa Tpt'stuks.</p> <p>Under Bankr. Act 1838, § 56a, requiring matters submitted to the creditors to be passed on “by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present,” claims allowed are not to be counted in choosing a trasteo, where the creditor is not present, and the power of attorney of his proxy is immfiicient.</p> <p>2. Same — -Proxies—Okrtificat.e of Notary.</p> <p>A notary’s certificate of acknowledgment to power of attorney to proxy of bankrupt’s creditor is sufficient though having no venue, as it complies with the form prescribed pursuant to Bankr. Act .1808, § 30, vesting the supreme court with power to prescribe rules and forms.</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 Southern District of New York.</p>

<p>On Application for Bail Pending Writ of Error.</p>

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

Appeal frota the Circuit Court of the United States for the District of Colorado. On December 2, 1899, John O. Teller, the appellant, recovered a judgment against the United States of America, the appellee, in the circuit court of the United States for the district of Wyoming, in the sum of $18,843.16. On January 24, 1901, the United States recovered a judgment against Teller in the circuit court of the United States for the district of Colorado in the sum of $27,963.96.

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

In the year 1867 one Thomas .T. Macmahan, a druggist of New York City, prepared a liquid mixture of tinctures of aconite and iodine for the use of dentists, and labeled it thus: “POISON. Sat. Tinct. Aconite Root, with Iodine. Prepared Expressly for Dentists’ Use by T. J. Macmahan. 138 Sixth Av., bet. 10th & 11th Sts., New York.” Macmahan’s general drug business consisted of the manufacture and sale of dental preparations, like tooth powder and mouth wash.

A bill was filed In the circuit court for the Western district of Tennessee by the complainant, who is a stockholder in the Memphis & Charleston Railroad Company, on behalf of himself and all other stockholders desiring to become parties complainant, against the Memphis & Charleston Railroad Company and the Southern Railway Company.

<p>Evidence — Subjects of Expert Testimony — Matters of Common Knowledge.</p> <p>The question what would have been the result, under circumstances shown-if the driver of a wagon had made a sharp turn for the purpose of avoiding a collision with a buggy, is not one for expert testimony, but the matter is one of common knowledge.</p>

Petition .for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia. This is a petition in equity to this court, under the jurisdiction conferred on it by clause “b” of section 24 of the bankruptcy act of July 1, 1S9S (30 Stat. 553), to superintend and revise in matter of law certain proceedings in bankruptcy of the district court of the United States of the Southern district of Georgia.

<p>1. Appeal — Admissions—Evidence.</p> <p>Plaintiff’s request to charge that the jury should not disallow all his bill because there are defects in the woodwork, but should deduct from that bill on this account what it would cost, under the evidence, to put the woodwork in as good condition as it should have been under the contract, having been affirmed, is sufficient basis for the statement of the court in its charge that plaintiff admits there are defects in the woodwork, and has given evidence that they could be remedied at a cost of not over §500, so as to make it an admission.</p> <p>2. Same.</p> <p>A party, by adopting and making part of its brief on appeal the statement of the court, in its opinion refusing new trial, wherein it was alleged that the evidence showed the woodwork could be put in condition for §500, admits there was evidence of defects.</p> <p>8. Entire Contract.</p> <p>A contract to decorate walls of room, do the woodwork therein, and furnish it for §5,200 is an entire contract.</p> <p>4. Contracts — Substantial Performances — Question fob Jurt.</p> <p>Whether there has been a substantial performance of a contract (o decorate walls of a room, do the woodwork therein, and furnish it for §5.200, so as to allow recovery thereon, is a question for the jury; there being- evidence of defects in the woodwork which it would take §500 to remedy.</p> <p>5. Same — Instruction.</p> <p>Instruction to jury, in action on entire contract for decorating room, doing woodwork, and furnishing it, that the defective woodwork would not preclude a recovery, if the contract was “otherwise” substantially performed, takes from the jury the question of substantial performance of the entire contract.</p>

<p>In Bankruptcy. The.following is the opinion of Referee Seaman Miller: t</p> <p>This is a motion on behalf of the trustee to compel the bankrupt to pay over certain money and merchandise which the bankrupt failed to specify in his schedules as belonging to him. The bankrupt herein has been engaged as a cloak merchant in this city for the last six years. A portion of that time he was in partnership with his brother, but since 1897 be was in such business on his own account; having started with about ten thousand dollars capital. A few months prior to being adjudicated a bankrupt, he occupied the fifth loft at No. 97 Wooster street, which was reached by an elevator and a stairway. In that loft the bankrupt admits that he had on the 5th day of September, 1899, in the neighborhood of ten thousand dollars’ worth of stock. The bankrupt now claims that on the following day his store was entered and all his merchandise was stolen, except between two and three thousand dollars’ worth of stock; but his statement to the police at the time was that practically nothing had been taken, and his boast to his creditors was that he was in great luck, — that, while his store had been broken open, he had come opportunely upon the scene before anything had been taken. The conclusion is irresistible that the alleged robbery never occurred, and that the stock which the bankrupt now claims was stolen is still under his control, or the avails thereof are still in his possession. With the balance of stock on hand the bankrupt continued to do business until the 29th day of December, 1899, when, according to his own story, he literally deserted the store, and left the contents thereof to the mercy of any persons who chose to take them. There are other grounds upon which this motion is based, but the evidence is not clear as to them. As the liabilities set forth in the schedules herein amount to hut $6,833.30, an order may be entered compelling the bankrupt to pay over to the trustee herein the sum of $7,000. «</p>

Application in involuntary bankruptcy proceedings' against the II. J. Arrington Company to confirm a composition offered by tlie bankrupt. To the report of the referee recommending the confirmation of the composition, the Greenesville Bank excepts. Composition confirmed.

<p>1. Corporation — Domicile—Infringement of Patent — Circuit Court — Jurisdiction.</p> <p>A corporation not incorporated in Colorado is not an “inhabitant” of the district of Colorado, within Act Cong. March 3, 1897, declaring that in suits for the infringement of patents the circuit courts of the United States shall have jurisdiction in the district in which the defendant is an inhabitant, etc.</p> <p>S. Same — Service—Applicability of State Statute.</p> <p>The act of the state of Colorado relative to service of process is not applicable to a suit against a corporation brought in a federal court in the district of Colorado, where the corporation is not an inhabitant of such district; and in such ease service must be had according to the acts of congress.</p> <p>8. Same — Complaint—Averment of Corporate Domicile.</p> <p>Act Cong. March 3, 1897, provides that in suits for infringement of patents the circuit courts shall have jurisdiction in the district where defendant Is an Inhabitant, or where the infringement is committed and defendant had an established place of business, and that in the latter case service may be made on the agent conducting the business. Meld, that in a suit against a corporation, in order to authorize service on an agent, the complaint must show the place of incorporation, so as to show that defendant is not an inhabitant of the district.</p> <p>4 Same.</p> <p>An averm.ent that defendant is incorporated in a certain other state named is sufficient to show that it is not an inhabitant of Colorado.</p> <p>8. Save — What Constitutes Established Place of Business.</p> <p>A railroad company .which maintains an office in the district of Colorado, but whose agent there has authority to solicit business only, and who makes no contracts for the carriage of freight or passengers, has no “regular and established place of business” in the district, within Act Cong. March S, 1897, declaring that in suits for infringements of patents the circuit courts shall have jurisdiction in any district whore the infringement is committed and defendant has a “regular and established place of business.”1</p>

<p>Carriers — Injury to Person Riding on Pass — Assumption of Risk.</p> <p>One riding on a pass, given without consideration, and after assent to conditions that he should assume all risk of accident and that the carrier should not be liable, cannot recover of it for injuries from negligence of its servants; and it is immaterial that the giving of the pass was a' breach of the federal statutes in reference to interstate traffic.1</p>

<p>Seamen — Right to Wages — Set-Off of Damages Caused by Neglect of Duty.</p> <p>The master, mate, engineer, and fireman in sole charge of a tug, who, through gross and culpable neglect of their duty, permitted her to become grounded, by which she sustained damage, are liable to the owner for such damage, which may be set off against their claim for wages.</p>

<p>Motion to Reiñand to State Court.</p>

<p>}. Shipping — Demurrage.</p> <p>Ordinarily demurrage is the agreed additional payment by the charterer for the allowed detention of the vessel beyond the iieriod specified in the charter party. 1</p> <p>2, Samn — Charter Party — Cancellation—Demurrage—Liability of Charterer.</p> <p>A charter party stipulated that the vessel should have 10 days in which to load, with a specified demurrage thereafter; it being agreed that the charterer should not be liable t'or demurrage If he was prevented from loading by strikes, unless loading liad begun, and that in ease of a strike the owner might cancel the charter. The vessel remained 18 days without loading, when its captain informed the charterer that a strike was imminent, and that the vessel was lying at the charterer's expense, and asked what concessions the charterer would inalce. The next day the captain wired tiie charterer for instructions and xiropositions, and the latter canceled the charter. MeW>, that the cancellation of the charter relieved the charterer from all liability for demurrage.</p>

<p>I. Summons — Sufficiency—Date.</p> <p>In an action on an account beginning August, 3901, and continuing until January, 1902, a summons bearing date “the 8th day of February, nineteen hundred and-, and the one hundred and twenty-sixth year of the independence of the United States,” is not insufficient as requirlng defendant to answer on a day anterior to the cause of action stated, it being clear that a word has been omitted, and the year of independence showing that the year intended is 1902.</p> <p>2. Same — Amendment.</p> <p>Such summons, even if insufficient, having the complaint attached to it, would be amendable, within Rev. St. § 948, authorizing amendments in process returnable to circuit or district courts where no prejudice or injury will result.</p>

<p>Appeal by the United States from a decision of the board of United States general appraisers which sustained the protest of the importers as to the merchandise in question.</p>

<p>Collision — Ste insures in Fog — Failure to Stop and Reverse.</p> <p>Evidence considered in a cause for collision between the steamships Tellus and Belgian King in the Pacific Ocean, at night, in a dense fog, and the Belgian King held to have been solely in fault for failing to stop and reverse on becoming aware that she was in close proximity to another vessel, as the Tellus was shown to have done.</p>

<p>Trade-Marks — Infringement—Preliminary Injunction.</p> <p>Complainant, as the successor of the “Wm. Rogers Mfg. Co.,” was-engaged in manufacturing, silver-plated ware, with a right to the use-Of the trade-mark “Wm- Rogers Mfg. Co.” Defendants organized a corporation under the name of the “Wm. G. Rogers Company,” using the-trade-mark “Wm. G. Rogers.” Wm. G. Rogers, its president, was a bank clerk, had never been engaged in manufacturing silver-plated goods, his-only previous experience being limited .to .efforts to establish a business of selling ware stamped “Wm. G. Rogers,” which had been, crippled by/various legal proceedings instituted by complainant. He had only 5 of the 100 shares of stock: Two other stockholders, holding between them-85 shares, had at one time manufactured silver-plated ware for the genuine “Wm. Rogers Mfg. Go.” and for other concerns, and organized the new corporation for the purpose of continuing such manufacture. Held to conclusively show want of good faith on defendants’ part, and that plaintiff was entitled to a preliminary injunction restraining them from making or selling ware stamped with the mark “Wm. G. Rogers.”</p>

<p>1. Salvage — Allowance.</p> <p>A tug towed a barge lying at a pier out. into the river to save her from danger from burning coal pockets. The barge’s cargo was In no danger, and the impending damage would probably not have exceeded $5,000. There was evidence that the barge could have been saved harmless, without the tug’s interference, though the tug’s services were rendered promptly, and when good judgment warranted them. They involved no peril or suffering to the tug’s crew, and, while it was stated that the tug’s side was blistered, yet the location of the fire, the protection afforded the tug by the intervening barge, and a failure to prove pecuniary damage, made serious injury improbable. Meld, that $300 salvage, apportioned $150 to the tug, $60 to her master, and the balance to the crew in proportion to their wages, was proper. 1</p> <p>2. Same — Costs —Excessive Boko — Effect.</p> <p>On a libel for salvage the requirement of an excessive bond from claimant should not be permitted to relieve him from costs where tile-amount appeared to have been agreed on, and the claimant had had an opportunity to apply to the judge for a reduction.</p>

<p>Accounting — Bill—Sufficiency.</p> <p>A bill which alleges the placing of a certain amount of money in the «hands of defendants as a committee for the purchase of certain property, but does not allege what they have done with the money, nor that they have acquired anything- with it but the title to the property which they were to acquire, nor that they have received anything from the property, is insufficient, as a hill for an accounting, though It alleges that the defendants have refused to account for such money.</p>

In Equity. Suit for foreclosure of railroad mortgage. Proceeding on petition of the receiver against sundry persons for contempt.

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

In Bankruptcy. The following is the report of George S. Bernard, Referee: The undersigned referee respectfully reports to your honor that after tho supreme court of the United States rendered its decision in the case of Pirie v. Trust Co., 182 U. S. 438, 21 Sup. Ct. 996, 45 L. Ed. 1171, touching preferences, and there was no longer reason for deferring the consideration of the matter of controversy between It.

<p>1. Evidence — Documents—Ship’s Log Book.</p> <p>It is doubtful if the mere inspection of a ship’s log hook by th© adverse party against whom it is produced and sought to he used renders it competent evidence for the party who made it.</p> <p>2. Shipping — c onstruction op Chahtbh — Duty of Vessel to Provide against Damage from Usual Method of Loading.</p> <p>The owner chartered a steamship, by a time charter, to he employed in carrying lawful merchandise, for which she was warranted in every way fitted. The owner agreed to maintain her in a thoroughly efficient condition during the service, and it was stipulated that the hire should cease during time lost by reason of her becoming unfit, if exceeding 24 hours. The charterer subchartered her, and she was again subchartered for two voyages to carry cargoes of iron ore from Cuba to an American port. In the loading of the first cargo she received some slight injury, particularly to her hatch coamings and their appurtenances, and in leading the second time more serious injury, which rendered her unseaworthy, and made it necessary to make repairs after her discharge, which occupied five days. The owner brought suit against the charterer to recover charter hire during such five days, and the cost of the repairs, and by petition of respondent the subcharterers were both brought in. It appeared that the ore was loaded in th© usual manner, by means of chutes, and that the, injuries received, beyond those which were to ho expected from the character of the cargo, which was necessarily hard on ships, resulted from the fact that the ship was not constructed in the best manner to receive such cargo, and that the master failed to take such measures as he might have done, and as were customary, to protect the deck and hatchways. Held, that the subcharterers were protected from liability for injuries due to such causes by the subcharters, which warranted the ship to be in every way fitted for that particular service; that the original charterer was also protected, the service being a lawful one, in which he was authorized by the charter to engage the vessel, and the ordinary risks from which were assumed by the owner, and hence it was not liable either for the cost of the repairs, or fot charter hire during the time they were being made.</p>

In Equity. On exceptions to report of special master. This is a suit in equity to procure the foreclosure of a deed of trust executed by the water company to secure the payment of bonds issued by it amounting to $30,000 The deed of trust covers all the tangible property, franchises, and rights of the water company.

<p>1. Reference — Findings of Master — Review.</p> <p>Findings of a master on matters of fact are not to be disturbed unless clearly in conflict with the weight of evidence.</p> <p>8. Life Policy — Cancellation'—Material Misrepresentations.</p> <p>Where a life policy provides that it shall be void if any of the statements in the application are untrue, and the applicant expressly warrants that all his statements are true, hut the application contains material misrepresentations as to his health and as to the pendency of applications for insurance with other companies, etc., which misled the company, and induced the issuance of the policy, and which are apparently intended for that purpose, the company is entitled to have the policy canceled on bringing suit within the proper time, especially where, even If the misrepresentations are not Intentional, the policy, when delivered, plainly discloses the untruthfulness of the representations.</p> <p>8. Same — Knowledge of Medical Examiner — Effect.</p> <p>The fact that the physician who makes the medical examination has knowledge of the untruthfulness of the representations will not affect the company’s right to the cancellation of the policy, he not having any power to enter into a contract of insurance or to make a waiver.</p> <p>4, Same — Incontestable Clause — Effect.</p> <p>A provision in a life policy that it is incontestable after two years cannot affect a suit by the company to obtain its cancellation, brought within three months from its date, the company’s rights depending on the facts as existing at the filing of the bill.</p>

<p>On Final Hearing.</p>

In Admiralty. Suit in rem to recover damages for collision. This is a libel filed by Lewis Luckenbaeh, owner of the barge Frank Pendleton, against the steam hark Severn, and a cross-libel filed by the owners of the Severn against the Frank Pendleton, to recover damages arising from a collision which occurred on the night of the 16th of August, 1900, between 8:15 and 8:30 p. m., near the mouth of James river, about abreast of Newport News; said barge and bark being,…

<p>Equity Pleading — Failure to Answer Interrogatories — Statement of Reasons in Answer.</p> <p>Statements in an answer in excuse of the failure of defendant to answer interrogatories contained in the bill, framed under equity rule 44, should be as specific in setting out the grounds for such refusal as would be required in a demurrer for the same purpose.</p>

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

<p>Mortgage Foreclosure — Right of Complainant to Discontinue after Decree.</p> <p>'.V! .u-e a federal court has entered a decree of foreclosure and salo in a suit to foreclose a corporation mortgage, atid such decree remains unreversed, another judge of the same court wiil not entertain a motion by complainant trustee to discontinue the suit, against the objection of bondholders who are interested in such decree.</p>

<p>Parties — Action against Stockholders — Ohio Statute.</p> <p>An action cannot be maintained to enforce the statutory liability of stockholders under Rev. St. Ohio, § 92(50, as amended in 1894, which expressly provides for an action jointly against all the stockholders, Including those who are out of the jurisdiction, or for other cause cannot be served, where the complaint shows that there are stockholders who are not made parties.</p>

<p>Petition by Paulina Schmidt Gayde for Writ of Habeas Corpus.</p>

<p>Patents — Infringement—Unuairing Machines.</p> <p>Tbe Sutton patent, No. 383,258, for a machine for removing the hairs from fur skins, claim 8, held infringed on a motion for a preliminary injunction, on the ground that the mechanism of' defendant’s machine, while operating in a somewhat different manner, was the substantial equivalent of that described in the claim, performing the same functions in substantially the same manner, and producing no better or different results.</p>

<p>Patents — Infringement—Peed Mechanism for Screw-Cutting Lathes.</p> <p>Tbe Norton patent, No. 470,001, for an improved feed for screw-cutting engine latbes, construed, and held limited to the particular combination shown in the claims, and, as so limited, not infringed.</p>

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>Where a patent which was invoked as a defense in a suit for infringement of another patent was considered by the supreme court, and its validity clearly and unequivocally sustained, such decision affords sufficient ground for the granting of a preliminary injunction against its infringement.</p> <p>2. Same — Infringement—Air Brake Valve.</p> <p>The Boyden patent, No. 4S1.134, for a valve for air brakes, claim 2, held infringed on a motion for a preliminary injunction.</p>

Sur Rule for New Trial on Verdict for Plaintiff. Action on bond given by Frank S. Zane to the Citizens’ Trust & Surety Company, in the sum of $0,400, on which the National Surety Company of New York was surety, conditioned that the said Zane should fully complete, free and clear of mechanics’ liens, a certain building operation, wherein he had undertaken to build 64 houses on land conveyed to him by one John Meighan.

<p>i. Patents — Infringement—Construction ov Chaims.</p> <p>A construction of tbe claims of a patent is not permissible vouch holds as an Infringement a device which omits one of the elements of the combination, even if the remaining members accomplish a somewhat similar result.</p> <p>3. Same — Bath Water Heaters.</p> <p>The Beaumont patent, No. 555,033, for an improvement in hot water bath fixtures, is not entitled to a broad construction of its claims or to a wide range of equivalents, in view of the prior art, and cannot be so construed as to cover every device having such an arrangement of valves that steam cannot be turned on without also turning on a stream of water to be heated. Claims 1, 2, and 6 construed, and held not infringed.</p>

<p>1. Maritime Liens — Creation by' State Statute — Enforcement in Court of Admiralty.</p> <p>Tho provisions of Act Pa. March 24, 1851 (P. L. 230), requiring vessels to take pilots when arriving at or leaving tho port of Philadelphia, subjecting them to penalties for a failure to do so, to be recovered for the benefit of “the Society for the Belief of Distressed and Decayed Pilots, Their Widows and Children,” and making all sums due for pilot-age and the penalties so imposed a lien upon the vessel chargeable therewith, relate to a subject which is maritime in its nature, and therefore the liens thereby created are valid, and may be enforced in the admiralty courts of the United States, as authorized by the act.1</p> <p>8. Admiralty Jurisdiction — Suit for Statutory Penalty — Enforcement of Maritime Lien.</p> <p>■Rev. St. § 503, cl. 8, which confers upon the district courts of tho United States jurisdiction “of all civil causes of admiralty and maritime jurisdiction,” gives such courts jurisdiction of a suit to enforce a maritime lien created by a state statute for pilotage fees, or for a penalty imposed by such statute for the failure to take a pilot as therein required.</p>

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

<p>On Petition for an Order Restraining Complainant, and for Other Relief.</p>

This case was brought by Arbuckle Bros, to restrain Joseph E. Blackburn, dairy and food commissioner of Ohio, from prosecuting the vendors of Ariosa, an article sold by the complainants to many dealers in Ohio, because of alleged violation of pure-food laws of the state.

<p>1. Patents — Infringement—Doctrine of Equivalents.</p> <p>A patentee is not to be denied protection commensurate with the scope of his actual and distinctly described invention by wholly excluding him from the benefit of the doctrine of equivalents, even as against one who has made only sncli changes as are palpably colorable and of such character as to show that they were studied evasions of the particular devices described in the patent.</p> <p>& Same — Ham Boiling Wrappers.</p> <p>The Merrill & Lepper patent, No. 624,839, for a wrapper for hams, claim 3, which claims a wrapper “and lacing devices on the back thereof,” is infringed by a wrapper which is in all respects identical with the patented article, except that the fastenings are straps and buckles, instead of a lacing cord engaged with hooks, studs, or eyelets.</p>

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

This is an action of ejectment. The court below rendered a judgment for the plaintiff on a demurrer to the answer of the defendant. The writ of error challenges this judgment. The property in controversy is an irregular tract of land adjoining the Cook lode mining claim on the north, and it has a length of 357 feet on one side and 283 feet on the other, and a width of 25 feet on one end and 101 feet on the other, measured upon the diagonal lines which form its ends.

This is an appeal from an order of the circuit court, which denied the petition of Peter O. Deming for a writ of habeas corpus upon this state of facts: Deming was, on March 29, 1900, a captain in the subsistence department in the volunteer army of the United States.

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

<p>Í. Patents — Combination of Old Elements.</p> <p>A new combination of old elements, whereby an old result is attained in a more facile, economical, and efficient way, may be protected by a patent.</p> <p>2. Same — Invention—Immediate and General Use Evidence of.</p> <p>Whore the question of novelty is fairly open for consideration under the law, the fact that a patented device or combination has displaced others which had previously been used to perform its function, and has gone into immediate and general use, is pregnant and persuasive evidence that it involves invention.</p> <p>8. Same — Letters Patent No. 330,067 Valid.</p> <p>Letters patent No. 330,067, dated November 10, 1885, to John A. Seely, for an improvement in grouping spring jacks and annunciators for multiple switchboards, are not void for want of novelty in the device, or of invention in its production, and they are infringed by tbe divisional system of the Kinloch Telephone Company.</p> <p>4. Same — Independent Inventions Patentable where Advance in Art Gradual.</p> <p>Where the advance toward the desideratum is gradual, and several inventors form different combinations which accomplish the desired result with varying degrees of operative success, each is entitled to his own combination, so long as it differs from those of his competitors and does not include theirs.</p> <p>(Syllabus by tbe Court.)</p>

<p>Corporations — Suit by Receiver to Enforce Personal Liability of Stockholders — Set-Off.</p> <p>By well-settled rules, the Individual liability of a stockholder in a Minnesota corporation is not to the corporation, but to its creditors; and hence, in a suit against such stockholder to enforce such liability, the defendant cannot set off an indebtedness due from the corporation to him.</p>

<p>At Law. On plaintiff’s demurrer to fourth, fifth, and sixth pleas.</p>

<p>5. Admiralty — Wrongful Arrest of Vessel — Damages.</p> <p>While ordinarily the arrest of a vessel in a cause of damage by due process is an inconvenience to which the owner is required to submit, without remedy, upon his success in the action, beyond the recovery of costs, yet when the libelant proceeds without an honest belief that he is using a rightful remedy, and his action is in the nature of a malicious prosecution, he should be held to pay any damages sustained by the owner through his wrongful act.</p> <p>2. Same.</p> <p>The charterer of a ship for two voyages, the hire to be paid by thé month, on the completion of the vessel’s discharge after the second voyage, and before her actual redelivery, caused her arrest on a libel filed against her asserting a claim against the owner. At the time the charterer was concededly indebted to the owner for hire under the charter in a sum exceeding that claimed in his libel. Held, that the arrest was made in bad faith, and by an abuse of the process of the court, and that the charterer would be held to the payment of hire under the charter to the time when the vessel was released from such arrest</p> <p>8. Same — Suit on Charter — Pleadings and Issues.</p> <p>A libel by a shipowner against a charterer to recover charter hire gives the admiralty court jurisdiction over the entire contract, and it will inquire into all its breaches, and award all the damages suffered thereby, although such breaches, were not all specifically alleged in the libel, but some occurred after it was filed. A libel to recover charter hire for a month in advance, where the charterer redelivered the vessel within the month, sufficiently raises the issue as to when such redelivery was made.</p> <p>4. Shipping — Charter—Cargo Space.</p> <p>Evidence held insufficient to sustain the claim of a charterer to damages because of an alleged warranty or representation that the cargo space of the ship was greater than it in fact was, no complaint or claim on that account having been made at the time of loading, nor until after the completion of the two voyages for which the ship was chartered.</p> <p>6. Same — Commission on Advances by Charterer.</p> <p>A charterer is entitled to the stipulated ' commissions on advances made for the disbursements of the vessel upon entering on the charter, although she then had coal in her bunkers of equal or greater value, which the charterer was bound to take and pay for, where the advances were actually required and made before an adjustment could be made of the amount due for coal.</p>

<p>t. Constitutional Law — Obligation of Contracts.</p> <p>St. Mass. 1893, c. 471, authorized a city to build its own waterworks, alter submission to a Tote of the people, notwithstanding the previous grant of a franchise to plain tiff. After a vote of the city to supply itself with water without buying the works of plaintiff, St. Mass. 1884, c„ 471, was passed, obliging the city to purchase plaintiffs waterworks before proceeding to supply itself with water, if plaintiff within a certain time notified the mayor of the city of its desire to sell. Held, that such latter act is not a violation of Const. U. S. art. 1, § 10, prohibiting an act impairing the obligation of contracts, because of the contract for water existing between the plaintiff and the city, as it simply gave plaintiff the option of selling- its property on the terms mentioned.</p> <p>$, Same.</p> <p>Evidence that the commissioners, in valuing plaintiffs property under the act of 1894, did not in fact value the water contract which plaintiff had with defendant, could not affect the terms of the act, so as to render it unconstitutional.</p>

<p>Corporations — Trustees—Failure to File Report — Action—Limitations.</p> <p>Where an action was commenced in Connecticut in 1897 against the trustees of a Montana corporation to recover of them individually debts owing by the corporation in 1893, because of the failure of such trustees to file the report which they were required by statute to file in that year, the action was barred either under Code Civ. Proc. Mont.- § 515, providing that an action upon a statute for a penalty or forfeiture given to an individual must be brought within two years, or Gen. St. Conn. § 1379, providing that no suit for any forfeiture upon any penal statute shall be brought after one year from tbe commission of tbe offense.</p>

<p>In Admiralty. Action to recover charter hire and damages.</p>

<p>In Admiralty. Action against tug for loss of tow.</p>

Indictment for Conspiracy. The parties arraigned before the court are under indictment with Michael A. Connolly and Oberlin M. Carter for the offense of an alleged conspiracy to defraud the United Btates of America of large sums of money appropriated by congress for certain river and harbor improvements within the Southern district of Georgia.

<p>Patents — -Suit j?ob Ineringement — I-iiKunaiNAnr Injunction.</p> <p>Where infringement is clearly shown, so as to entitle complainant to a preliminary injunction, and the infringing article is manufactured abroad and imported into this country, complainant has the right to the issuance of the Injunction, and to use or publish it for legitimate purposes, notwithstanding the promise of defendant not to purchase or use any more of the articles.</p>

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

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

<p>L Salvage — Compensation—Rescue of Stranded Ship.</p> <p>Salvage services performed by a wrecking tug and barge equipped expressly for the service, and having a crew of 30 men, by which a steamship stranded in a dangerous position on the coast was promptly and skillfully rescued without injury to herself or cargo, held to entitle the salvors to an award of 5 per cent, on the amount salved, the value of ship and cargo being $153,000 and pending freight about $4,000.1</p> <p>2. Same — Suit in Rem to Recover for Services — Collateral Issues between Ship and Cargo.</p> <p>In a suit by a salvor against a ship and cargo to recover for salvage services the court cannot determine issues which may incidentally or collaterally arise between the parties libeled. The ship cannot be required in such suit to answer to a claim of the cargo owners of negligent navigation as affecting the question of liability between ship and cargo, having been brought into court for a different purpose, and service of process on her proctor on behalf of the cargo is ineffective to raise such an issue.</p>

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

<p>L Federal Courts — Following State Decisions — Construction of Statutes.</p> <p>A decision of the supreme court of a state construing a valid statute, and holding invalid bonds of a county which had been previously issued thereunder and placed in the market and had been sold to bona fide purchasers, where none of the bondholders were parties to the action, is not binding on a federal court in an action subsequently brought by bondholders against the county, hut it is the duty of such court to determine the question independently.1</p> <p>9. Counties — Power to Aid Raji.roads — North Carolina Statute,</p> <p>Code N. 0. 1883, g 1996, first enacted in 1869, and re-enacted in the Code in 1883, provides that “the boards of commissioners of the several counties shall have power to subscribe stock to any railroad company or companies when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest” The succeeding sections require the submission of the question of the proposed subscription to the voters of the comity. The constitution of 1868 (article 5, § 4) expressly provides that the state shall give aid to railroads only when authorized by a direct vote of the people, or “to aid in the comple-tion of such railroads as may be unfinished at the time of the adoption of this constitution, or in which the state has a direct pecuniary interest.” MeW, that in view of the difference in the language of the two provisions, as well as of the plain and ordinary meaning of the words of the statute relating to counties, it could not be construed as limited in application to cases where railroads had been commenced and were unfinished at the time the constitution was adopted, and in which the counties, as such, had a direct pecuniary interest, but that it conferred power on counties to subscribe for stock, iu the manner prescribed, in any railroad company which had been duly incorporated to build a projected road in which the citizens of the county, as a body, have a general interest because of the supposed benefits to be derived from it</p> <p>3. Same — Validity of Bonds — Effect of Recitals.</p> <p>Where a county issued negotiable bonds, as authorized by such statute, in payment for stock subscribed in a railroad company which built Its road into the county as agreed, and the county received and continued to hold the stock, taxed the road, and for a number of years paid the interest on the bonds, it is estopped by recitals therein that they were issued by authority of such statute, as against a bona fide holder for value, to deny that the subscription was necessary to aid In the completion of the road, or that the citizens of the county had an interest therein, both of which were facts precedent to the right to exercise the power conferred by the statute.</p> <p>Goff, Circuit Judge, dissenting.</p>

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

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

<p>1. Appeal — Questions Rbviewable — Allowance of Costs tn Equity.</p> <p>The awarding of costs in equity is discretionary with the court, and no appeal lies from its action in the matter.</p> <p>3. Same — Appealable Orders — Finality of Decree.</p> <p>A decree dismissing a bill, upon which an injunction pendente lite has been issued, conditioned on tbs giving of a bond by complainant, is final and appealable, notwithstanding it orders a reference to a master to ascertain what, if any, damages have been sustained by defendant by reason of the injunction, since such order does not relate to a matter within the pleadings, hut is made simply in execution of the decree.</p> <p>8. Injunctions — Ancillary Suits — Dismissal. A suit for an injunction against waste, ancillary to an action in ejectment by complainant against defendant, is properly dismissed on the entry of judgment for defendant in the law action.</p> <p>4 Same — Damages for Breach of Bond — Power of Court to Allow. Whether or not a court of equity, which has, In the exercise of its discretion, required a bond to be given as a condition to the issuance of an injunction, has jurisdiction to assess damages for the breach of such bond on dissolving the injunction, it has power to decide whether damages shall be allowed; and a reference to ascertain what, if any, damages have been sustained by defendant, is within its discretion.</p>

This case comes up by appeal from the circuit court of the United States for the district of West Virginia. The appeal is from an order granting and continuing a temporary injunction. The facts essential to a discussion of the questions involved in this appeal are these: Emile Berliner was the inventor, patentee, and owner of si certain sound-producing machine, to which he gave the name of Gramophone.

<p>1. Equity — Dismissal of Bill by Appellate Court — Effect of Prior Amendment.</p> <p>After the granting of a preliminary injunction by a circuit court, complainant, by leave of court, filed an amended and supplemental bill. Defendant afterwards appealed from the order granting the injunction, but the record on appeal did not show the amended bill, nor was it called to the attention of the circuit court of appeals. That court on the hearing, ordered the dismissal of the bill. Held, that on the filing of the amended and supplemental bill such bill, together with the original bill, constituted one pleading and one record, and that the order of the appellate court, having been made upon a defective record, did not operate to dismiss the bill as amended.</p> <p>2. Appeal — Review—Allowing Amendment of Pleadings.</p> <p>The granting of leave to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not be reviewed in an appellate court unless there has been a gross abuse of this discretion.</p> <p>8. Equity — Grounds of Jurisdiction — Sufficiency of Bill.</p> <p>A hill in equity, which alleges that the parties entered into a contract, the performance of which was to extend over a term of years, and that defendant, which is a corporation, has conspired with others to take such action as will render it impossible to perform the contract on its part, and will also render it insolvent, for the purpose of defeating the rights of complainant, states grounds for equitable relief, and is not demurrable.</p> <p>4. Same — Retention of Jurisdiction Acquired — Enjoining Action at Law.</p> <p>A court of equity which has rightfully takeu jurisdiction of a controversy and has all the parties before it will retain such jurisdiction to grant full relief, and may enjoin the institution and prosecution of an action at law by one of the parties in any other court involving the matters in controversy before it.</p> <p>5. Appeal — Appealable Orders — Refusing to Dissolve Injunction.</p> <p>Under Act Gong. June 6, 1900 (31 Stat. 600), an interlocutory order of a federal court refusing to dissolve an injunction is not appealable.</p>

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

<p>Patents — Infringement—Armature Coils or Winding.</p> <p>The Eickemeyer patent, No. 377,993, for a coil or winding for dynamo-electric machines, describes, in claims 1 and 2, all of the patentee’s invention, which consists of an armature coil for drum armatures, having a certain structural form, and a mode of operation by virtue of such form, the essential feature of which is that one side, or substantially one-half of the coil, is of lesser external dimensions than the internal dimensions of the other half, so that the short side of one coil may be passed into or through the long sides of other coils. Claim 4, which is for a winding composed of detachable counterpart colls, while broad in Its terms, can only be sustained, in view of the prior art, when limited to the novel form of such coils described in the preceding claims. Claims 1, 2, and 4 considered, and held not infringed.</p>

<p>In Bankruptcy.</p>

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

<p>lu Admiralty. Suits for breach of charter party.</p>

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

<p>1. Mortgage — Suit to Redeem from Sale — Res Judicata.</p> <p>Complainant brought suit in a federal court to establish a mechanic’s lien upon the property of a water company for supplies furnished in the construction of its plant, and obtained a decree establishing its lien, and also a judgment against the company. Pending such suit a mortgage upon the plant of the company was foreclosed in a state court, and the property was sold and purchased by the mortgagees, who were not parties to the suit in the federal court Thereafter complainant brought a creditors’ suit in the federal court in aid of its judgment, one of the purposes of which was to obtain a decree of priority of its lien claim over the mortgage, and the title acquired by the mortgagees thereunder. It obtained such decree, huí. on appeal its bill was dismissed by the circuit court of appeals, following a decision that had in the meantime been rendered by the supreme court of the state, holding that, under the state statute, waterworks property was not subject to a mechanic’s lien. Haiti, that such judgment was a conclusive adjudication of the invalidity of complainant’s lien as between it and the mortgagees, and that, having only the status of an unsecured creditor, it could not maintain a suit against such mortgagees and their grantee to redeem from the mortgage sale.</p> <p>% Courts — Jurisdiction of Subject-Matter — Pendency of Suit in Another Court.</p> <p>The pendency of a suit in a federal court to obtain a judgment and a decree establishing a mechanic’s lien, in which the court does not take possession of the property which remains in the defendant, does not affect the jurisdiction of a state court to entertain a suit for the foreclosure of a mortgage on the property; nor does the decree in the lien suit bind the mortgagee, who is not a party thereto, or affect the rights of a purchaser at the foreclosure sale.1</p> <p>8. Lis Pendens — Operation and Effect — Persons Bound by Deiueis.</p> <p>Tiie doctrine of lis pendens affects only intermediate purchasers who voluntarily acquire rights from one of the parties pending the suit. It has no application to a case where, pending a suit to establish a lien upon property,, a mortgage thereon antedating the lien suit is foreclosed in another court, so as to render the decree in the lien suit binding on the purchaser at the foreclosure sale, whose title relates back to the date of the mortgage.</p>

This appeal is iTom a judgment "of the district court, sitting in bankruptcy, in the matter of Soudan Manufacturing Company, bankrupt, on review of findings by the referee, whereby a mortgage lien claimed by Robert N. Stites, appellant, against the plant, machinery, and tools of the bankrupt, is disallowed, and upon additional findings by the court the ruling of the referee that the mortgage “constitutes no valid existing lien on any of the property” of the bankrupt is…

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

The Kisinger-Ison Company, the appellee in this appeal, on February 8, 1897, being the owner of letters patent No. 428,123, issued to David B. Morrison May 20, 1890, and of letters patent No. 491,811, issued to W. S. Kisinger March 7, 1893, — both said patents being for improvements in wire couplings, —exhibited its bill in the court below against the Bradford Belting Company, the appellant herein, complaining of the infringement by the latter company of the rights secured…

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

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

<p>Customs Duties — Classmtoatiox-—Colored Cotton Cloth— Goat Hair Polka Dots.</p> <p>Colored cotton cloth, having polka dots about one-quarter inch in diameter, composed of goat hair and superimposed upon the fabric with a species of glue, and applied by a process of printing, is assessable, under Act 1897, par. 366, as a “fabric made wholly or in part of wool,” and is not dutiable under paragraph 308 as “cotton cloth,” nor under paragraph 322 as a “manufacture of cotton,” nor under paragraph 339 as a “fabric appliquéed composed wholly or in chief value of cotton.”</p>

<p>1. Municipal Corporations — Contracts — Ordinance Granting Franchise to Electric Light Company.</p> <p>Tbe statute of Missouri (Laws 1891, p. 60) wbicb authorizes a city to erect and operate electric light or water works: “Provided, that the council may * * * grant the right to any person or persons or corporation to erect such works * * * upon such terms as may be prescribed by ordinance: provided, further, that such right * * * shall not extend for a longer period than 20 years,” — provides two alternative methods by which a city may secure lights or water for its inhabitants; and where a city has acted under the second method, by passing an ordinance granting' the right to erect a.nd maintain electric light works for 20 years, and fixing the terms, rates of charge, etc., such ordinance, when accepted and acted on by the grantee, ci'eates a valid contract, an implied term of which is that the city will not within the 20 years erect works of its own and enter into competition with the grantee in furnishing lights to private consumers.</p> <p>2. Constitutional Law — Impairment of Obligation of Contract — City Ordinance.</p> <p>An ordinance passed by a city, under assumed authority from the state, providing for the erection of electric light works for the purpose of supplying lights to its inhabitants, in competition with an electric light company, in violation of the implied terms of a contract made by a prior ordinance granting a franchise to such, company for a term of years, is a law impairing the obligation of contracts, within the meaning of the contract clause of the federal constitution.</p>

<p>In Equity. On cross bill of interveners.</p>

In Equity. Suit for infringement of letters patent No. 414,335, issued November 5, 1889, to Charles Henry Webb, as assignee of Lester C. Smith, for an improvement in adding machines. On motion for preliminary injunction.

<p>In Bankruptcy. O11 application for discharge.</p>

In Equity. Suit for infringement of letters patent No. 449,106, issued March 31, 1891, to John J. Carty for improvements in telephone circuits and apparatus. On final hearing.

<p>At Law. Rule for judgment for want of a sufficient affidavit of defense.</p>

<p>1. Best and Secondary Evidence — Rus Jcdicata.</p> <p>Where the evidence shows beyond question that the records of a case have been destroyed by no fault of the defendant, oral testimony may be admitted upon the plea of res judicata.</p> <p>2. Same — Sufficiency.</p> <p>The same testimony that would justify the re-establishment of a lost record should be accepted to support such plea.</p>

<p>Upon Demurrer and Motion to Ouasb the Indictment.</p>

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

<p>Customs Duties — Woolen'Bands.</p> <p>Woolen bands intended for the use of veterinary surgeons, to be applied to lame legs, are properly assessed under Act 1897, par. 366, as manufactures of wool, and not under paragraph 447, which provides for “harness, saddles and saddlery.”</p>

<p>Customs Duties — Lemon Peel.</p> <p>Where lemons cut in two and thrown into casks of brine are imported, and when the merchandise reaches this country the pulp has left half of the lemon, and the fruit has been destroyed, it is properly classified under Act 1897, par. 207, as lemon peel, preserved, and not under paragraph 559 of the free list of the same act, as fruits in brine.</p>

<p>Customs Duties — Classification—Preparation of Tallow.</p> <p>A preparation of tallow used, not as an assistant or a mordant, but simply for softening cotton cloth, is classifiable under Act 1897, § 6, as an “article manufactured, in whole or in part, not provided for in this act,” and not under paragraph 32, as an “alizarin assistant, not specially provided for in this act.”</p>

<p>1, Res .Tudicata — Appointment and Powers of Receiver.</p> <p>Where, in a suit by creditors against an insolvent corporation and its stockholders, a judgment is rendered against a stockholder who is a party and has been duly served with process, and a receiver is appointed with power to bring an action in his own name on such judgment in the courts of any other jurisdiction, as authorized by a statute of the state, the right of the receiver to sue on such judgment, as against the judgment defendant, is res judicata.</p> <p>2. Corporations — Statutory Liability of Stockholders — Enforcement Ex-trate rritoria lly.</p> <p>Upon the principle of comity a federal court will recognize the right of a receiver appointed by a court of another state or jurisdiction, for the purpose of enforcing the liability of a stockholder for the benefit of the creditors of an insolvent corporation, to maintain an action therein in his own name against such stockholder to effectuate the purpose of his appointment, where such appointment was made and authority to sue given pursuant to the statute which created the liability, and by a court of competent jurisdiction, and where such action will not violate the local policy or interfere with the rights of resident creditors.</p>

Appeals from the District Court of the United States for the .Eastern District of New York. This cause comes here upon appeal from a decree of the district court, Eastern district of New York (108 Fed. 552), holding the tug and the barge both liable for damages sustained by the schooner Florence Shay in consequence of a collision with the barge while in tow of the tug about 3 a. m. of August 22, 1900, in Hamilton Roads.

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

<p>1. Patents — Construction of Claims — Chemical Product.</p> <p>A claim of a patent for a new chemical product, which is described ■with such clear marks of identification that it can readily be recognized aside from the process by which it is made, is not limited to the product of a particular process because such a process is described in the specification and is the only known process by which it can be produced.</p> <p>8. Same — 'Validity and Infringement — Phenacetine.</p> <p>The Hinsberg patent, No. 400,086, for the chemical product known commercially as “Phenacetine,” largely used in medicine since its production by the patentee, construed, and held not anticipated, valid, and _ infringed.</p>

<p>L Patents — Validity—Design von Lamí.</p> <p>The Hitzelberger design patent, No. 29,939, for a portable lamp bod”, field void on the ground that the patentee was not the originator oí the design shown.</p> <p>2. Same — Invention—Electric Lamp.</p> <p>The Misell patent, No. 61.7,592, for an electric hand lamp, claim 3, covering a combination of devices all well known in the prior art, is void, as failing to show any patentably novel combination or element of construction.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>This cause comes here upon appeal by the owners of the Grand Traverse from a decree of the district court, Northern district of New York, holding both vessels in fault for a collision between the steam propeller Livingstone and the steam propeller Grand Traverse, and dividing the damages. 104 Fed. 918. The Livingstone did not appeal.</p>

These are cross appeals from a decree of the circuit court, Northern district of New York. 108 Fed. 221. Suit was brought by complainant upon reissued letters patent No. 11,031 to Rankin Kennedy, September 24, 1889, and letters patent No. 469,809, to William Stanley, March 1, 1892. The circuit court held the Kennedy patent void, and rhe first and third claims of the Stanley patent to be valid and infringed.

<p>Petition to Review the Order and Judgment of the District Court of the United States for the District of Oregon.</p> <p>On December IS, 1S90, Alexander H. ICerr, the appellee herein, brought an action in the circuit court of the state of Oregon for Coos county against the Beaver Coal Company to recover $4,093.41, with interest and costs, and on the same day caused a writ of attachment to be issued in said action, and under said writ the sheriff seized certain personal property of the defendant in the action. On Hay 19, 19G0, judgment was duly rendered in favor of the plaintiff for $4,233.66 and costs and disbursements, and the judgment entry contained an order directing the sale of the attached property to satisfy said judgment. On June 21, 1900, a petition in involuntary-bankruptcy was filed against the Beaver Coal Company, and on August 3, 1900, it was adjudged a bankrupt. The apx>ellee filed his claim against the estate of the bankrupt, asserting priority against the proceeds of the attached property. It was adjudged to have such priority, and from the decision of the district court so ruling the present appeal is taken.</p>

This is an appeal from a judgment entered in favor of the plaintiff in a cause tried in the circuit court for the Southern district of New York (106 Fed. 679) upon an agreed state of facts, the substantial portions of which are as follows: The defendant is the collector of internal revenue of the United States in this district.

The defendant in error, plaintiff below, hereafter called the plaintiff, brought this action against the plaintiff in error, defendant below, hereafter called the defendant, to recover damages sustained on account of an accident caused by the explosion of nitroglycerine. The defendant was engaged, in manufacturing and exploding nitroglycerine in oil and gas wells.

<p>Chinese — Failure to Obtain Certificate of Residence — Deportation-Jurisdiction.</p> <p>Act Cong. Blay 5, 1892, gives a commissioner jurisdiction to hear the charge against a Chinaman of being in the country without a certificate of residence, though section 6, providing for issuance of such certificates to Chinamen, declares that one not obtaining a certificate within a certain time shall he adjudged to be unlawfully In the country, and shall be arrested and taken before a United States “judge”; the act, after continuing in force, by section 1, all laws prohibiting and regulating the coming in of Chinamen, and declaring, by section 2, that any Chinamen adjudged under any of said laws not entitled to remain in the country shall he deported, providing, by section 3, that any Chinaman arrested under “this act, or the acts hereby extended,” shall be adjudged unlawfully in the country, unless he shall establish his right to remain to the satisfaction of “such justice, judge, or commissioner”; and Act Cong. March 3, 1901 (31 Stat. 1093), providing that the district attorney may designate the commissioner before whom a Chinaman, arrested for being unlawfully in the country or having unlawfully entered, shall be taken for hearing.</p>

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

<p>In Error to the Circuit Court of the United States for the District of Idaho.</p> <p>The United States brought an action against Isaac Van Winkle, the defendant in error, to recover the value of 90,000 feet of lumber, of the manufactored value of $7 per thousand feet, which lumber and logs were alleged to have been wrongfully anct unlawfully cut from the public domain of the United States in the land district of Boise, Idaho. The defendant in error set up the defense that the lands from which said lumber and sawlogs were cut was mineral land of the United States, within the meaning of the act of Congress approved June 3, 1878, entitled “An act authorizing the citizens of Colorado, Nevada and the territories to fell and remove timber on the public domain for mining and domestic purposes,” section 1 of which provides as follows: “That all citizens of the United States and other persons, bona fide residents of the states of Colorado or Nevada or either of the territories of New Mexico, Arizona, Wyoming, Dakota, Idaho or Montana, and all other mineral districts of the United States, shall be and are hei’eby authorized and permitted to fell and remove for building, agricultural, mining or other domestic purposes any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under the existing laws of the United States except for mineral entry, in either of said states, territories or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: provided, toe provisions of this act shall not extend to railroad corporations.” The jury returned a verdict for the plaintiff in error for the sum of 835.</p>

<p>1. Master and Servant — Guarding Machinery — Factory—What Constitutes — Commercial Ice House.</p> <p>A commercial ice house, which is extensively equipped with machinery, and in which numerous operators are employed, is a “factory,” within Laws N. Y. 1897, c. 415, providing that “shafting, set screws and machinery of every description shall be properly guarded” by the owners of factories where machinery is used, and declaring that the term “factory” shall be construed to include also a “mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor.”</p> <p>2. Same — Harmless Error.</p> <p>Error in charging that the factory statute had no application to a commercial ice house was harmless, where the court further charged that it was a rule of common law, irrespective of statute, that machinery must beH safe, and that in the case of a set screw (the instrument by which plaintiff was injured) it might be dangerous or safe according to its situation, and according to the parties called on to work on the machine, and therefore left to the jury to determine as a question of fact whether the screw was dangerous or safe, the state courts having construed the statute as not imposing duties on an employer greater than those imposed by the common law, etc.</p>

The evidence in this ease showed that the plaintiff was in the employ of the defendant as one of four linemen, whose business it was to carry the wire from the ground and fasten it by means of a tie wire to the glass insulators on the poles at a height of from 30 to 35 feet. It was shown that when the main wire was in position it was the duty of an employs, called a “jaekman,” to tighten it on receiving the proper signal from the linemen when they were ready.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Michigan, in Bankruptcy.</p> <p>In the matter of the petition of Adolph Feldheim and Deo M. Butzel to review an order of the district court, 11 Fed. 495.</p> <p>On September 11, 1900, a voluntary petition in bankruptcy was filed in the district court of the United States for the Eastern district of Michigan on behalf of the firm of A. Ives & Sons, which firm was composed of Albert Ives, Sr., Albert Ives, Jr., and Butler Ives. This petition was signed by Albert Ives, Jr., and Butler Ives, and by Albert Ives, Sr., by Mrs. Mary Ives Cowlan, his daughter, by authority of a power of attorney dated September 10, 1900, giving her general power to sign and execute all papers, and particularly the petition in bankruptcy which was filed. This petition asked that the firm and the individual members thereof be adjudicated bankrupts, and they were so adjudicated. One Henry A. Harman was appointed trustee, and on the 27th of October, 1900, he filed a bill in the circuit court for the county of Wayne, Mich., in chancery, setting forth the bankruptcy proceedings, and asking that a transfer of certain negotiable paper and assets placed in the hands of the petitioner Leo M. Butzel, as trustee, to secure a debt of $25,000 to Albert FelcLbeim, the other petitioner here, within four months of the filing of said petition in bankruptcy, be set aside. The subpoena in that suit was served on thése petitioners, who filed an answer. On March 20, 1901, Albert Ives, Sr., died, and Albert Ives, Jr., was appointed administrator of his estate. On June 5, 1901, these petitioners filed a petition in the district court, charging that Albert Ives, Sr., at the time he executed the power of attorney, and at the time of the institution of the proceedings in bankruptcy and the adjudication, was mentally incompetent, and for that reason the proceedings, so far as they pertain to the firm of A. Ives & Sons and to the estate of Albert Ives, Sr., are void, and asking that the adjudication, so far ás it relates to the firm and the estate of Albert Ives, Sr., be set aside, and the appointment of the trustee vacated. The delay in filing , their petition is sought to be excused by the petitioners by saying “that the facts in reference to the matters herein contained have become known to them only recently, and they thereupon- have begun this proceeding.” To this petition the trustee and Albert Ives, Jr., administrator of the estate of Albert Ives, Sr., filed a demurrer, which was sustained by the court, and the petition dismissed. To review that'order this petition has been filed.</p>

<p>1. Federal. Courts — Conformity to State Practice.</p> <p>Rev. St. § 914, requiring the practice in the federal courts to conform as nearly as may he to the state practice, was not designed to abolish in the federal courts the distinction between actions at law and suits in equity.</p> <p>2. Release — Avoidance for Fraud — Conditions Precedent.</p> <p>A party executing a release to a railroad company for a claim for personal injuries cannot avoid it, as obtained by false and fraudulent representations, unless lie first returns or offers to return the money received as tlie consideration for its execution.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of conviction of the circuit court for the Southern district of New York, entered upon the verdict of a jury rendered October 15, 1901, upon an indictment charging defendant with the crime of knowingly having in his possession washed and restored adhesive documentary revenue stamps, and of willingly and knowingly offering the same for sale.</p>

<p>1. Contracts — Mutuality.</p> <p>A contract whereby defendant agreed to sell, and plaintiff agreed to buy, all the oil “they may require for their own use for a period of twelve- months from the date hereof,” was not void for want of mutuality.1</p> <p>S. Same — Certainty.</p> <p>The fact that the quantity of oil to he sold and bought was not definitely determined at the date of the contract, but was to be 'ascertained by extrinsic evidence, was immaterial.</p> <p>8. Same-Construction.</p> <p>The contract obligated defendant to sell only so much oil as plaintiff might require for its own use for the purpose intended within the year, and not as much as it might require within a reasonable period after the expiration of the year.</p> <p>A Refusal of Nisw Trial — Review.</p> <p>The circuit court of appeals cannot review the discretion of the court below In refusing a new trial sought on the ground that the verdict was against the evidence.</p>

<p>Appeal from the' District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal by both respondents from a decree of the district court (93 Fed. 510) holding the defendant railway company solely responsible for the damages resulting from a collision between libelant’s canal boat F. B. Morris and a ferryboat alleged to be owned by the Pennsylvania Annex. The appeal of the last-named respondent was evidently taken through some oversight, inasmuch as the district court dismissed the libel as to it. It was not argued here, and may be disregarded.</p>

<p>Customs Duties — Velvet Cord — Corduroy.</p> <p>A pile fabric, commercially known as “velvet cord,” “ribbed velvet,” or “corded velvet,” is not “corduroy composed of cotton or other vegetable fiber,” within Tariff Act 1897, par. 315, and is not assessable as such.</p>

<p>1. States — Limitation of Powers — Repeal or Amendment of Corporation Laws.</p> <p>The power of a state, reserved by its constitution, to alter, amend, or repeal general laws concerning corporations, is subordinate to, and limited, by, the provisions of the federal constitution inhibiting laws impairing the obligations of contracts, depriving persons of property without due process of law, or denying the equal protection of the laws. Rights acquired and capital invested by a corporation or its stockholders in the lawful exercise' of powers conferred by such laws are within the protection of such constitutional provisions, and cannot be arbitrarily destroyed by subsequent state legislation.</p> <p>2. Irrigation Companies — Regulation of Rates — California Statutes.</p> <p>Act Cal. May 14, 1862 (St 1862, p. 540), amending the general incorporation law of 1853, and providing for the “incorporation of canal companies and the construction of canals,” gives companies incorporated thereunder the right to charge and collect rentals or tolls for water, subject to regulation by county boards, but provides that the rates shall not be reduced by such boards so low as to yield to the stockholders less than a certain per cent, “upon the capital actually invested.” Act March 12, 1885 (St, 1885, p. 95), to regulate and control the sale, rental, and distribution of appropriated water in the state, requires county boards, on petition, to fix rates to be charged by any distributer of water in the county, outside of cities and towns. It provides that the board shall “estimate the value of all property actually used and useful to the appropriation and furnishing of such water,” estimate the reasonable annual expenses of the person or corporation whose franchise is controlled, and adjust the net annual receipts and profits so that they may be not less than 6 nor more than 18 per cent, “upon the value of property actually used and useful.” It further provides that in fixing rates “said board may take into estimation any and all other facts, circumstances, and conditions pertinent thereto, to the end and purpose that such rates shall be equal., reasonable, and just, both to such corporations and to said inhabitants.” Eeldi, that assuming that under the later act the value to be estimated by the board was the actual cash value at the time, thus fixing a different basis for the rates established than that provided by the earlier act, it could not be construed, as applied to a corporation organized under the act of 1862, to authorize the board to ignore the capital “actually invested,” which would result in many cases in impairing, the obligation of the contract created by the company’s charter, as well as depriving it of property without due process of law, but that as to such companies it was the duty of the board, under its power to take into estimation all other pertinent facts, to consider the capital actually invested, at least in the property actually used and Useful, and to fix such rates, within the limits prescribed by the act, as should be reasonable with reference to such investment.</p> <p>B. Corporations — Charter Rights — Effect of Nonuser.</p> <p>A statutory right embraced in the charter of a corporation must be reduced to possession to secure the constitutional protection against alteration or repeal. Where an irrigation company, organized under Act Oal. May 14, 1862 (St. 1862, p. 540), which provided that county boards should not reduce the rates of such companies “so low as to yield to the stockholders less than 1% per cent, per month upon the. capital actually invested,” in fixing its own rates, which it did for 25 years, never made them so high as to yield such per cent to its stockholders, its constitutional rights are not impaired by a subsequent statute authorizing county boards to fix rates below the minimum prescribed in the incorporation act.</p>

<p>Customs Administration — Sufficiency of Protest.</p> <p>Paragraph 439 of the tariff act of 1897 provides that “gloves made wholly or in part of leather * * * shall pay duty at the following rates, * * *• namely.” Then follows paragraph 440, which enumerates several kinds of gloves, among which are Schmasehen gloves, and the rates of duty on each. EclA, that a protest filed by an importer under the customs administrative act of 1890 against the classification of gloves as lambskin, under paragraph 441, on the ground that they should be “assessed under paragraph 439 as Schmasehen gloves,” was sufficient, and distinctly informed the collector of the position of the importer, since paragraphs 439 and 440 must necessarily be construed together, and although Schmasehen gloves are not mentioned in the former the duty is assessed thereunder.</p>

In Equity. Suit for infringement of patents. Sur defendant’s petition for leave to bring forward by supplemental bill, in the nature of a bill of review, a Canadian patent.

In Admiralty. Suit by charterer to recover damages for failure of ship to carry a full cargo, and cross libel for demurrage.

In Equity. Suit for infringement of letters patent No. 393,713, for a ship’s keelson, granted November 27, 1888, to James McIntyre, assignor of one-half to John A. Stetson. On final hearing.

In Equity. On demurrer to bill. The material allegations of the bill are that on July 28, 1890, Joe Davies and wife conveyed the lands in controversy to Harold ■ Smith as trustee to secure the payment of a large sum of money loaned to them on that date by the defendant the Middlesex Banking Company.

<p>In Bankruptcy.</p>

<p>In Admiralty. Libel in rem for damages.</p>

<p>Bankeuptcy — Pkekkekncks—What Constitutes</p> <p>A payment on a note given by an insolvent to close up an existing account with a creditor, made within four months of the filing of his petition in bankruptcy, cannot be treated as a preference with respect to a new debt afterwards created by him with the same creditor, and need not he surrendered by the creditor; nor can it be treated as a set-oil against the new debt, when he seeks to prove the latter in the bankruptcy proceedings.</p>

<p>In Admiralty. Libel in rem against tug to recover damages for injury to tow.</p>

<p>In Bankruptcy. Sur certificate of W. R. Blair, referee, sitting as special master.</p>

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

In Bankruptcy. On question certified by referee. On the 11th day of January, 1902, J. A. Anderson & Co. et al. filed a petition in bankruptcy against Reuben Stegar, A subpoena was issued, but not served.

<p>1. Process — Federar Courts — Service in Other Districts.</p> <p>Except in suits of a local nature to enforce a lion or claim against property within the district, and upon a proper order, or in suits for infringement of a patent, there is no authority of law for the service of process issued by a circuit court of the United States outside of the district</p> <p>2. Federad Courts--Jurisdiction.</p> <p>A suit In equity to set. aside a contract for the sale of a patent involves no federal question, and cannot be maintained in a federal court, where an indispensable party defendant is a citizen of the same state as complainant.</p>

<p>1. Ships — Loading Appliances — Condition—Duty of Owner.</p> <p>It is the duty of a shipowner to keep his ship in such condition that the loading appliances may be reasonably used without being liable to catch on obstructions, and endanger a gangway man handling a whip.</p> <p>2. Same — Defects—Duty to Warn Employes.</p> <p>Where several rungs of a stationary ladder on the ship projected beyond the side of the ladder, so that the loading appliances were liable to catcli on them, and endanger tho gangway man handling the whip, and he had no knowledge of the danger, it was the owner’s duty to gi\ e him notice, so that he could refrain from exposing himself to the peril if he so wished.</p> <p>8. Same — Sufficiency of Evidence.</p> <p>The load on reaching the hold was received by an employé working there, who knew the condition of the ladder and the danger from the projecting rungs. He testified that the load was unslimg a little forward of the ladder, and the sling hooked up and taken by him to the coaming oí' the hatch, out of danger from the ladder, etc., and he gave an unsatisfactory explanation as to why it caught on the rung. Testimony on the part of the claimant showed that the load was unloaded forward of the ladder, and in close proximity to it. Held to show that the load was unslung nearer the ladder than the employe was willing to admit, and that he negligently failed to keep it away from the projecting rungs.</p> <p>4 Same-Damages — Amoua t.</p> <p>An employe injured by reason of a defective ladder on a ship was unconscious for several days. Among other wounds, he suffered a compound fracture of his right leg, necessitating several painful operations, as a result of which his leg was shortened about three inches, and remained stiff. He was permanently disabled for anything but very light work, which he could probably do only when sitting, and such work appeared difficult to obtain. Ho had been a healthy man, 44 years oíd, earning S3 a day, and §5 for night work, and had steady employment. Heldi, that §6,000 damages was reasonable.</p> <p>5. Same — Negligence of Fellow Sebvant.</p> <p>The contributory negligence of a fellow servant was no dofonse.1</p>

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

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

<p>Bankruptcy — Involuntary Petition — Adverse Claimant of Property-Restraint — Power of Court.</p> <p>Where property, claimed to belong to one against whom an Involuntary petition in bankruptcy is filed, is also claimed by a third person, who is about to remove it, the court, on petition of the creditors, will restrain such third person from removing such property or making any change therein.</p>

<p>I. Customs Duties — Classification—Mufflers Composed of Cotton and Silk.</p> <p>Mufflers composed of cotton and silk are not classifiable under Act 1897, par. 314, as “wearing apparel composed of cotton or other vegetable fibre, or of which cotton or other vegetable fibre is the component material of chief value,” — since paragraphs 388 and 312 both relate expressly to “handkerchiefs or mufflers.”</p> <p>S.' Same.</p> <p>Mufflers composed of cotton and silk are dutiable under Act 1897, par. 388, covering “handkerchiefs or mufflers composed wholly or in part of silk,” and not under paragraph 312, covering “handkerchiefs or mufflers composed of cotton,” though the cotton is the component material of, chief value of the mufflers in question.</p>

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

<p>Customs Duties — Classification—Crude Sulphide of Antimony.</p> <p>Crude sulphide of antimony is classifiable under Ac't 1897, par. 476 of the free list, covering “Antimony ore, crude sulphite of,” and is not assessable under section 6, as a “non-enumerated article manufactured in whole or in part,” the word “sulphite” being regarded as a misprint for “sulphide.”</p>

<p>Bankruptcy — Social Club.</p> <p>An incorporated club whose principal object is social intercourse, any business conducted by it being merely incidental, is not “engaged principally in * * * trading,” and is not the subject of involuntary bankruptcy.</p>

<p>Involuntary Bankruptcy — Corporations—Right to File Petition.</p> <p>A corporation, not being entitled to go into voluntary bankruptcy under Bankr. Act, ? 4, and not being subject to involuntary bankruptcy, except on petition of three of its creditors, under section 59, cannot procure one of its creditors to assign part of its claim to third persons in order to create a sufficient number of creditors to join in an involuntary petition, its other creditors not being willing to file such petition.</p>

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

<p>Customs Duties — Classification—Breccia.</p> <p>The question being one of fact, decision of board of general appraisers that an importation was “breccia,” and therefore enterable free of duty under Tariff Act 1897, par. 508, instead of being dutiable under paragraph 114, will not be disturbed, having ample evidence to sustain it.</p>

<p>Customs Duties — EYsh.</p> <p>Assessment oí duties on the contents of cans, under Tariff Act 1887, par. 258, as “fish known as anchovies,” is proper, though the cans are labeled “Appetit-Sild,” the appraiser’s return that the contents is “fish known as anchovies” not being contradicted by evidence, though witnesses state that it has been known and sold as “Appetit-Sild,” and that in Norwegian “sild” is synonymous with “herring.”</p>

<p>Customs Duties — Mohairs.</p> <p>Mohair braids made of the hair of the Angora goat are not woolen goods, within Tariif Act 1894, par. 297, suspending till January 1, 1895, reduction of duties on such goods.</p>

<p>In Bankruptcy.</p>

<p>In Adrrliralty.</p>

<p>Customs Duties — Merchandise Composed of Silk and Wool.</p> <p>Merchandise composed of silk and wool, silk being the component material of chief value, cannot be classified under Tariff Act 1890, par. 414, as a “manufacture of silk or of which silk is the component material of chief value”; being within the proviso of that paragraph declaring-that “all such manufactures of which wool * * * is a component material shall be classified as manufactures of wool.”</p>

<p>Customs Duties — Dulcin—Chemical Compound.</p> <p>Dulciu, being a chemical compound, is dutiable as such under Tariff Act 1897, par. 3, and not as saccharine, under paragraph 211, it being a distinct article, and of a different chemical composition, though similar to saccharine in character and use.</p>

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

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

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

<p>Retail Liquor Dealer — Selling without Paying Tax.</p> <p>One may be convicted of carrying on the business of a retail liquor dealer without payment of the required tax, in violation of Rev. St. U. S. § 3242, as amended, though the article is put up in bottles and labeled as an appetizer, and he did not know its nature when he bought it, it in fact containing a large per cent, of alcohol, and nothing of a curative character, and the circumstances of purchases from him being such as to show that his customers are buying it merely as an Intoxicant.</p>

<p>United States — Building Contract — Construction—Extra Compensation.</p> <p>An original bid was made by plaintiffs for the construction of a court house and post office building for the United States out of stone, brick, and terra cotta for a certain sum, and afterwards an alternative bid for the construction of the same building out of marble for a greater amount. In the specifications for the building originally submitted, provision was made for certain iron beams and girders to go over openings for doors and windows in order to strengthen the building. The specifications for the alternative hid recited that the work must be performed in strict compliance with drawings to be furnished, “including all necessary changes on account of said proposed construction.” Held, that the provision quoted was for the benefit of the government, and that, though the evidence tended to show that iron beams were not usually required in marble buildings, the government had the right to require their use, and was not liable for extra compensation.</p>

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

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

<p>Appeal from 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 Western Division of the Northern District of Ohio.</p>

<p>Appeal from the Circuit Court of the United States for the Central Division of the District of Idaho.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of West Virginia, at Parkersburg.</p>

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

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina, at Asheville.</p>

<p>Appeals from the District Court of tiie United States for the Southern District of New York. These causes come here upon appeals from decrees of the district court, Southern district of New York, dismissing the libels (109 Fed. 487), which were brought to recover for damages sustained by scows while in tow of the steam tag E. Luckenbach in Hampton Roads, about 10 a. m., October 31, 1900.</p>

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

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

<p>Appeals from the District 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 Eastern District of Texas.</p>

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

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

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

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

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

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

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

<p>Cross Appeals from the Circuit Court of the United States for the District of West Virginia, at Clarksburg.</p>

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

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

<p>Appeal from the District 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 Southern District of New York.</p>

<p>Motion to strike demurrer from the files, for decree pro confesso, and to allow demurrer to stand as a pleading.</p>

<p>Appeals by the Importers from Decisions of the Board of United States General Appraisers.</p>

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

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