Volume 114 — Federal Reporter

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

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

<p>1. Receiver — Compensation—Review by Appellate Courts.</p> <p>Appellate courts will not interfere with the discretion of the courts below in fixing the compensation of receivers and their counsel unless it has been abused.</p> <p>2. Same — Amount op Compensation.</p> <p>Twelve thousand dollars was a reasonable compensation for two years’ service as receiver of a Kansas railroad, only 60 miles in length, the volume of whose business was small, and the road itself operated during most of the receivership by a lessee, who was entitled to all the earnings, where the receiver resided in Massachusetts, and was only in Kansas on a few occasions, and where his services were confined to issuing receiver’s certificates and negotiating them when he could find a purchaser.</p> <p>8. Same — Allowance por Hotel Bills.</p> <p>A claim of $2,952 for hotel bills, claimed to have been paid by the receiver while in New York on receivership business, was properly disallowed, as an unnecessary outlay.</p> <p>4. Same — Rent of Offices.</p> <p>The receiver ought not to have rented an office in New York without the express sanction and approval of the court.</p>

<p>L Corporations — Liability of Directors — Negligence in Performance of Duty.</p> <p>Directors of an Insolvent manufacturing corporation cannot be held Individually liable to creditors either on the ground of negligence in the discharge of their duty or under the statute of Illinois because they declared and paid a dividend to stockholders when the company was insolvent, and permitted the creation of indebtedness exceeding its capital stock, where it is not satisfactorily shown that in the exercise of ordinary diligence they should have known that the company was insolvent when the dividend was declared, or that the indebtedness was being created; and the evidence is insufficient to charge them with notice of such facts where it shows that the president, who was the active manager of the business, deliberately wrecked the company, and de- ' frauded both stockholders and creditors by embezzling the proceeds of goods sold and substituting fictitious notes, purporting to have been given by customers therefor, and by falsifying the books, which failed to show indebtedness for materials purchased on credit, but, on the contrary, showed the company to be solvent, and the business prosperous, and it does not appear that the directors had any reason to suspect the president's integrity until after the dividend had been declared and the indebtedness created.1</p> <p>¾. Same — Validity op Mortgage — Preference op Directors and Stockholders.</p> <p>A mortgage given by a corporation to secure bonds issued to pay its indebtedness to two banks, In which directors and stockholders of the corporation were large stockholders, at a time when the corporation was in fact insolvent, and shortly before It suspended business, A eld, under the evidence, to have been given in good faith, while the corporation was a going concern, and in the expectation that its business would be continued, and to be valid, the directors and stockholders who were secured thereby being Ignorant of the company’s insolvent condition.</p> <p>Grosscup, Circuit Judge, dissenting.</p>

The bill was originally filed by appellants, citizens of Illinois against ap-pellee, a corporation, organized under the laws of the State of Indiana, in the Circuit Court of Cook County, in the State of Illinois, and was by ap-pellee removed to the Circuit Court of the United States for the Northern District of Illinois, Northern Division, on account of diversity of citizenship. Thereupon, an amended bill was filed.

<p>Customs Administration — Sufficiency of Protest — Effect of Error.</p> <p>Under the procedure inaugurated by the customs administrative act of 1890, by which the decision of a collector is reviewed by a special tribunal, there is no necessity for exacting such nice precision in the protest of an importer, or such accurate knowledge of the law by him, as to debar him from relief from an erroneous classification and. excessive assessment by the collector because he fails to designate correctly the provision under which the classification should have been made.</p>

<p>Customs Districts — Compensation of Collector — Change in Statute.</p> <p>Act Aug. 28, 1890 (26 Stat. 363, c. 814), “to reorganize and establish the customs collection district of Puget Sound,” not only by its title, but also by its provisions, shows the intention of congress to make a complete revision of the law relating to the organization of such district; and section 3, fixing the compensation of the collector at a salary of $3,500 per annum, supersedes and repeals Rev. St. § 2670, on the same subject, including the provision permitting the collector to retain fees to the amount of $2,000 in addition to his salary.</p>

<p>Taxation — Railroad Props rtv — Ohio Statutes.</p> <p>The statutes of Ohio relating to the taxation of railroad property (Rev. St. 1890, §§ 2770-2776) provide for the valuation of the property of a railroad company by a board consisting of the auditors of the several counties into or through which its road extends. If it extends into one county only, the auditor of such county constitutes the board. They also provide two general systems for distributing the valuation between localities for purposes of taxation. The real estate, structures, and stationary personal property are valued separately, and the valuation of each apportioned to its own local taxing district, while the valuation of the rolling stock, main track, roadbed, supplies, moneys, and credits is distributed between such districts in proportion to the mileage in each. A railroad of the State, extending through several counties, terminated at its southern end at low-water mark on the Ohio river. Such road was leased to a company owning a road on the opposite side of the river; the two being connected by a bridge and approaches owned, as shown by the pleadings, by the lessee. The approach on the Ohio" side extended back from low-water mark 1,490 feet, and consisted of a permanent and expensive stone structure, having 43 arches. An additional rate was charged for passengers and freight crossing the bridge. The lessee, in making returns of the property of the lessor for taxation in Ohio, made no separate mention of such approach, but included the main track, roadbed, and right of way to low-water mark, and the same was assessed by the board of auditors, and the valuation duly apportioned according to mileage. Helé, that such valuation did not cover the approach as a “structure,” but that the same was subject to valuation and taxation as such by the auditor of the county in which it was situated, as the property of the lessee.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>The plaintiff in error was indicted by the grand jury for unlawfully inclosing public land in the state of Washington, by erecting and maintaining a post and wire fence around certain land owned and leased by him, thereby preventing and obstructing any and all persons from peacefully entering upon or establishing a settlement or residence upon certain tracts of public land, and preventing and obstructing passage and transit over and through said public land. The indictment contained six counts, but only the charges contained in the first, second, and fifth counts were submitted to the jury. These counts charged as follows:</p> <p>“That one Robert Potts * * * did unlawfully, as owner, make, erect, construct, and maintain an inclosure of the following described public land of the United States, containing not less than 160 acres, to wit, the N. W. ⅛ of section 2, township 19 north, of range 38 east of the Willamette meridian, and the S. W. ½ of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian; said inclosure so made, erected, constructed, and maintained, consisting of and being a post and wire fence, and he, the said Robert Potts, so making and constructing said inclosure, then and there having no claim or color of title to any of said land, made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office, to wit, the United States land office at Spokane, in said state and district, under the general land laws of the United States, — contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.</p> <p>‘•That one Robert Potts * * * did unlawfully, as part owner and agent, make, erect, construct, and maintain an inclosure of the following described public land of the United States, containing not less than one hundred and sixty acres, to wit, the N. W. ¼ of section 2, township 19 north, range 38 east of the Willamette meridian, and the S. W. ¾ of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian; said inclosure so made, erected, constructed, and maintained consisting of and being a post and wire fence, and he, the said Robert Potts, so making and constructing said inclosure, then and there having no claim or color of title to any of said land, made or acquired in good faith, or an asserted right thereto, by or under claim, made in good faith with the view to entry thereof at the proper land office, to wit, the United States land office at Spokane, in said state and district, under the general land laws of the United States at the time such inelosure was so made, — contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.”</p> <p>“That one Robert Potts * * * did unlawfully, by and with a post and wire fence, prevent and obstruct from passage and transit over and through certain of the public lands, containing not less than one hundred and sixty acres, to wit, the N. W. ¼ of section 2, township 19 north, of range 38 east of the Willamette meridian, and the S. W. ⅛ of section 26, township 20 north, range 38 east of the Willamette meridian, and section 34, township 20 north, range 38 east of the Willamette meridian, — contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.”</p> <p>The jury found the defendant guilty as charged in these three counts, and the court imposed a sentence of one day’s imprisonment in the county jail and a fine of $100, and costs of action. Writ of error was thereupon sued out to this court.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This was an action on a policy of accident insurance. The insured was Robert P. Frierson. The loss, in case of death, was payable to the mother of the insured, who is the defendant in error. There was a stipulation waiving a jury and submitting the case to the court. The court rendered judgment for the plaintiff upon a special finding of facts, made a part of the record.</p> <p>The company presented a number of defenses, which, so far as now material, were as follows: First. That the contract was void in consequence of a false statement in the application, in which the applicant stated, “I have not in contemplation any special journey nor hazardous undertaking, except as herein stated,” whereas the applicant at the time contemplated a journey to the gold fields of Alaska for the purpose of prospecting for mines, and in fact did go to Alaska during the life of the policy, and was there drowned while prosecuting the journey to the gold fields in contemplation when he applied for insurance. Second. That the deceased at the time of his death was in violation of a condition of the policy which exempts the company from liability for injury sustained when the insured is engaged in “adventures into wild and uninhabited or uncivilized regions.” Third. That the insured was placed in the preferred class as a lawyer. That he changed his occupation by going to Alaska as a “prospecting miner,” and thereby rendered applicable the fourth condition of the policy, which is in these words: “If the insured is injured in any occupation or exposure classed by this company higher than the premium paid for this policy covers, the sum insured and weekly indemnity shall be only such amounts as said premium will purchase at the rate fixed for such increased hazard.” Fourth. The policy insures the principal sum of §5,000, but provides for the payment of double that sum if the injuries from which death ensued “are sustained while riding as a passenger in any passenger conveyance using steam, cable, or electricity as a motive power.” The company denied double liability under this clause, upon the ground that he was not at the time of his death a passenger in a passenger conveyance, within the meaning of this clause. The court below held upon the law and facts that the company was es-topped from making the three defenses first mentioned, and that the deceased was a passenger, within the meaning of the policy at the time of his death. There was, therefore, a judgment for double the principal sum insured, with interest from the date of the refusal of the company to pay. The application upon which the policy issued was made upon a printed form. All the written parts, except the signature, were filled in by the local agent of the company at Shelbyville, Tenn. The insured, Robert P. Frierson, was a lawyer living at Shelbyville.</p> <p>The facts found by the court below in relation to the application for and issuance of this policy, as found by the court below, are as follows:</p> <p>“(1) Robert P.. Frierson, the insured, was a lawyer. On September 2&, 1897, he applied to a soliciting agent' of defendant at Shelbyville, Tennessee, for a policy of accident insurance, stating that he intended going in a few days to Seattle, Washington, where he would remain about six months, preparing and arranging for a speculative and prospecting trip into Alaska or the Klondike, prospecting for gold. He inquired of the agent whether defendant company would issue a policy to cover such a trip as he expected to take at the end of about six months. The agent, who had no authority to issue policies, replied that he did not know, but suggested that the way to ascertain was to send to the defendant company two applications, one for a six-months policy and the other for a twelve-months policy, and that he (the agent) would accompany them by a -letter fully explaining the facts as to the proposed trip, and that the company could then determine for itself whether it would take the proposed risk, and, if not, could issue the policy for six months to cover the time assured would be in Seattle. Insured assented to this plan. The two applications were accordingly prepared and inclosed by the agent in a letter to Myron L. Long, manager of defendant company, at Cincinnati, to whom he forwarded all applications taken by him, fully explaining all the facts with respect to the stay in Seattle, and the proposed speculative and prospecting trip to Alaska or the Klondike, and that a policy for twelve months was wanted only in the event it would cover the risk of the latter trip.</p> <p>“(2) Upon receipt of this letter, and with a full knowledge of the facts that unless the insurance would cover the risk of a speculative or prospecting trip to the Klondike, a policy for only six months was desired, the manager of defendant company, at Cincinnati, Ohio, dating it September 29, 1897, mailed the policy to the agent at Shelbyville, and about October 13, 1897, forwarded the application to the home office of defendant company at Hartford, Connecticut. Upon receipt of the policy the agent mailed it to the insured, who had then gone to Seattle, and collected the premium of twenty-five dollars ($25.00), which had been left by the insured at Shelby-ville for that purpose.</p> <p>“(3) On October 9, 1897, the manager at Cincinnati wrote the agent at Shelbyville, as follows: T regret the ordering up of the policy of Robert P. Frierson. We have written him a policy for $5,000, dated September 29th, for five months. You can advise him that policy is in full force and effect, and will be mailed you immediately upon receipt of return of the other policy. X tried my best to favor you in this matter, and regret my inability to do so.’ Insured was then in Seattle, and the agent did not in any way communicate with him, the beneficiary, or any one connected with either of them, the fact that the policy had been ordered up. Subsequently, and in due course of business, the agent remitted the full premium for twelve months to the manager at Cincinnati, who received it without objection, and remitted it to the chief office at Hartford, where it was received and retained. No further effort was made to cancel the policy.”</p> <p>In respect to the questions as to whether the assured was engaged in “adventures into wild and uninhabited or uncivilized regions,” or was a “passenger in any passenger conveyance using steam, etc.,” at the time of his injury, there was no specific finding of fact. The "facts bearing upon both these questions, as found by the court below, constitute the sixth finding of fact, and is as follows: “Insured remained in Seattle until May 31, 1898, preparing for the proposed trip. He and a number of other young men organized a party for the purpose of ascending the Kuskokwim river in Alaska, and prospecting the interior of Alaska or the Klondike for gold. They arranged with the Columbia Navigation Company, a common carrier, engaged in the carriage of passengers by water from Seattle to Alaska, for transportation. The relation of the party to the company is found to be as stated by Richard Chilcott, president of that company, and R. P. Camdon, stockholder and officer in the company, which the court here restates and adopts in the language of the witness. Chilcott says: ‘Q. What compensation was the Columbia Navigation Company to receive for transporting the party from Seattle to Kuskokwim Bay and thence up the Kuskokwim river? A. It was to receive one-half of what the party realized in two years.’ Cross-examination: ‘Q. Who furnished the general stores for this party? A. I did, or the Columbia Navigation Company. When I use the personal pronoun, I am merely speaking of my company. Q. The twelve or more men yon sent up there were to operate the boat and do all the other work? A. Yes. Q. They were crew and everything else? A. Yes.’ Recross-examination: ‘Q. Captain, were the members of the Jessie party at expense themselves in making this expedition? A. They contributed one thousand dollars each towards their supplies, but they paid no passage money. They were to pay from the proceeds of the expedition. Q. You testified, I believe, that the proceeds were to be divided half and half between your company and the individuals? A. Yes, sir. Q. Did any person on the Jessie pay fare? A. Yes, a man named Anrud. Q. Was he the only passenger from Seattle? A. Yes, with the exception of the party named. Q. This party also manned the boat? A. No. Q. You mean she was manned by others outside of the party? A. No, they were inside the party, but they were men on pay. Q. State, if yon can. the names of the party on pay who manned the boat. A. Kinsler, Hare, Knudsen, and the Jap cook. Q. Who furnished the steamer Jessie for the purpose of transporting the party up the Kuskokwim river? A. The Columbia Navigation Company. Q. State fully, if you know, what instructions were given to this party with respect to communicating with the Columbia Navigation Company after they should reach Alaska. A. Each member was given a pass over all the boats of the company, and, in case any of them at any time crossed over to the Yukon river, they had the right to take the river boats up or down, and it was through, these river boats that they were expected to communicate. Q. What compensation was the Columbia Navigation Company to receive for transporting the party from Seattle to Kuskokwim Bay, and thence up the Kuskokwim river? A. The Columbia Navigation Company was to get half the profits of the expedition. Q. State whether the members of this party were all, or most of them, and particularly if Robert I\ Frierson was a stockholder in the Columbia Navigation Company. A. Nearly all of the party wore stockholders of the Columbia Navigation Company.’ Cross-examination: ‘Q. You have stated that the Columbia Navigation Company was to share profits with this party. Did this party charter the steamer Jessie,, giving as a price one-half of the profits of the expedition? A. No, sir; there was nothing in the way of a charter. Q. Did these fourteen names you gave us constitute the entire party which was to go on the Jessie? A. Yes, sir, with the exception that they know that they would have to put on a pilot. Q. Then, if I understand you, the party of fourteen which left Seattle were to go up Kuskokwim river on the steamer Jessie, and the consideration moving to the navigation company was half of the profits of the expedition? A. Yes, sir; half to the navigation company and half to them. Q. At what time was the Columbia Navigation Company entitled to call for their half of the profits of the expedition? A. At any time. Q. Within the two years or later? A. Well, there was no agreement made as to that, but the understanding was they were to have our half interest in any profits. Q. That is to say, the Columbia Navigation Company assisted this party of fourteen to ascend the river a thousand miles or more to look after gold, and they were to give the Columbia Navigation Company one-half the gold which they found in consideration of the supplying the boat and provisions for the period of two years, and the other half of the gold found was to be divided equally between the party? A. That is right so far as it applies to the gold; but the party expected to find a town site, and, of course, they would simply be deeded their one-half interest.’ For the purpose of this expedition the company built a river steamer known as the Jessie. She was stocked With provisions sufficient to last two years, and was to remain with the party, and he used as the base of supplies while they were prospecting. The Jessie and the party who were to ascend the Kuskokwim river were transported on the Lackme, an ocean steamer belonging to the Columbia Navigation Company, from Seattle to a point near Kuskokwim Bay. On June 27 or 28, 1898, the Jessie was launched off Kuskokwim Bay, and started on her journey, manned by the crew, who were in the pay of the company; that is, the Columbia Navigation Company. In addition to assured and his party, whose passage was to be paid for by a share in the profits of the expedition, she carried one passenger, who paid a regular fare, and another, who paid the fare for himself and wife and child by his services as guide and pilot The Kuskokwim river had not been previously navigated by steamboats. The region traversed by it is sparsely inhabited by Indians of a low degree of civilization, together with a few white missionaries at one point about two miles from its mouth, and traders."</p> <p>Further facts essential to the determination of the questions arising upon the errors assigned will appear in the opinion.</p>

<p>1. Statute of Frauds — Avoiding Contract — Becovery of Benefits.</p> <p>Defendants, stockholders in a corporation, receive no benefits under a contract by which plaintiffs, also stockholders therein, advance money to the corporation, but not to relieve defendants from pecuniary liability, and defendants agreed to vote their stock so as to keep plaintiffs in control; so that defendants, protected by the statute of frauds from liability for breach of the contract, are not liable for such money.</p> <p>2. Action on Contract — Recovery on Implied Assumpsit.</p> <p>Plaintiff, in an action to recover on a contract, cannot recover on on implied assumpsit, defendant having set up the statute of frauds as against the contract.</p>

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

The suit was instituted in 1893, in personam, against the owner, an English corporation, of the steamer Sorrento, to recover damages for breach of contract to carry live cattle to England. The breach consisted in seven days’ detention of said steamer beyond the agreed date of sailing.

<p>Contracts for Future Delivery — Void if Quantity Indeterminable.</p> <p>A contract for the future delivery of personal property is void for want of consideration and mutuality If the quantity to he delivered is conditioned by the will, wish, or want of one of the parties, hut it may be sustained if the quantity is ascertainable otherwise with reasonable certain ty.</p> <p>£. Same — Valid if Mutual and Quantity Specified.</p> <p>An accepted offer to furnish or deliver such articles of personal property as shall be needed, required, or consumed by the established business of the acceptor during a limited time is binding, and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles required by his business during this time from the party who makes the offer.</p> <p>3. Same — Void for Want of Mutuality if Quantity is not Specified,</p> <p>But an accepted offer to sell or deliver articles at specified prices during a limited time in such amounts or quantities as the acceptor may want or desire in his business, or without any statement of the amount or quantity, is without consideration and void, because the acceptor Is not bound to want, desire, or take any.</p> <p>4. Void Contracts for Future Delivery Valid for Goods Actually De LIVERED, BUT VOID AS TO THOSE NOT DELIVERED.</p> <p>Accepted orders for goods under such void contracts constitute sales of the goods thus ordered, on the terms of the contracts; but they do not validate the agreements as to articles which the one refuses to purchase or the other refuses to sell or deliver under the void contracts, because neither party is bound to take or deliver any amount or quantity of these articles thereunder.</p> <p>5. Contracts — Intentior of Parties cannot Prevail Over Terms of.</p> <p>The intention of parties cannot be imported into a contract where its terms are plain and unambiguous, and they do not express it.</p> <p>6. Verified Account Prevails Over Unverified Answer-</p> <p>A verified account must be taken as true, against a denial and an offset pleaded in an unverified answer under Gen. St. Kan. 1897, c. 95, § 108.</p> <p>(Syllabus by the Court.)</p>

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

<p>3. Bankruptcy — Payments on Account Current no Peeiterenois Wiiekh Subsequent Credits Exceed Them.</p> <p>The receipt by a creditor of payments upon an account current in the usual course of business, which are followed by new credits for property delivered to the debtor which becomes a part of his estate, for which the creditor is not paid, and which equals or exceeds in amount and value the payments, does not constitute a preference, under section (iOa, and does not require the creditor to surrender such payments as a condition of the allowance of his claim, under section 57g, of the bankrupt act of 1898.</p> <p>2. Same — Creditor’s Claim on Account Current not Divisible,</p> <p>The claim of a creditor for a balance due upon an account current with the bankrupt is one single claim, and, in determining its allowance and the existence of alleged preferences arising out of the acts it evidences, it must be so considered. It may not be divided iuto its items or into separate claims for that purpose.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>Appeal — Constitutional Question — Jurisdiction.</p> <p>Under Judiciary Act March 3, 1891, § 6, providing that appeal may he taken from the district or circuit courts directly to the supreme court, in any case'that involves the construction of the constitution of the United States, the appellate jurisdiction of the supreme court is exclusive, where the record shows, from plaintiff’s own statement, that the suit really and substantially involves a controversy as to a right depending on the construction or application of such constitution, and the jurisdiction of the circuit court is invoked on that ground alone.1</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>Appeal from decree of the circuit court for the district of Connecticut (105 Fed. 965), which dismissed a bill in equity for the infringement of letters patent 629,391, granted to the complainant July 25, 1899, foi a new stocking supporter.</p>

<p>Removal of Vessel fkom Wharf — Liability for Injury.</p> <p>A company at whose wharf a vessel is unloading cargo for it is liable for injury to her, through its superintendent, acting within the sphere of his authority, removing her, without knowledge of her owner, who was in command of her, to a place which her owner had told him was unsafe.</p>

<p>1. Master's and Servant's Duty in Operation of Railroad — Negligence.</p> <p>The duty of so operating a safely constructed and equipped'railroad, subject to the rules and general supervision of the master, as to keep it reasonably safe for those employed upon it is not a positive duty of the master, but a primary duty of the servant</p> <p>& Carriers — Liability to Passengers of Railway Company Operating over Another Railroad. .</p> <p>A railroad company operating its trains over the railroad of another corporation by permission is liable to its passengers for the negligence of the servants of the licensing corporation.</p> <p>3. Master and Servant — Liability to Servants of Railway Company Operating over Another Railroad.</p> <p>A railway company running its trains over another road by permission is liable to its employés for the negligence of the servants of the licensing corporation in the discharge of the absolute duties of the master.</p> <p>4. Same.</p> <p>But such a railway company is not liable to its servants for the negligence of the employés of the licensing corporation in the discharge of their duties as servants.</p> <p>5. Same — Respondeat Sdpertor — Power of Control Test of Application.</p> <p>The power of the alleged master or principal to command or direct the alleged servant or agent is the test of the liability of the former for the acts of the latter, under the maxim respondeat superior. If the master or principal has no power to command or direct the alleged servant or agent, he is not responsible for his acts, because there is no superior to respond.</p> <p>ft. Same — Employe of Railway Company not Fellow Servant of Employe of Depot Company.</p> <p>The G. W. By. Co. was operating a train through the yards of a depot corporation, under the customary contract for the use of the yards and depot jointly with other companies having like contracts, when one of its employés was killed by the alleged negligence of the servants of the depot company in failing to properly turn the switches, which were under the control of the latter company. Eeldi the switchmen of the depot company were not the fellow servants of the employés of the railway company, nor were they the agents or servants of that company, within the meaning of the fellow servant statute of Minnesota (St 1894, $ 2701)1</p> <p>7. Same — Respondeat Superior — Terminal Yards — Contract for Use of Creates no Partnership or Agency.</p> <p>The ordinary contracts between a depot corporation and several railroad companies for the use of a depot and transfer yards do not establish a partnership relation between the companies, nor make the depot corporation the servant or agent of the railroad companies, so that they become. liable for the negligence of its servants, under the maxim re-spondeat superior,</p> <p>Caldwell, Circuit Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>

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

Appeals from the District Court of the United States for the District of Connecticut. This cause comes here upon appeals from decrees of the -district court for the district of Connecticut in favor of libelants, to sustain a lien against proceeds of the vessels for certain repairs.

This is an appeal from a decree sustaining a demurrer to the amended and supplemental bill of complaint in the cause. The plaintiff, Melior, filed bis original bill of complaint in the case May 30, 1898, as surviving partner of the commercial firm of Melior & Fenton, of Liverpool, bis co-partner having died in 1885.

<p>1. Carriers — One Entering Train with Understanding with Conductor not to Pay Fare a Trespasser — Duty op Carrier.</p> <p>One who, knowing that a conductor has no authority to grant free transportation, enters and rides upon his train with the deliberate intention not to pay his fare, under an agreement or under a tacit understanding with the conductor that he shall ride free, commits a fraud upon the railroad company, and is not a passenger, but is a mere trespasser, to whom the only duty of the company is to abstain from willful or reckless injury.</p> <p>2. Same.</p> <p>One who enters and rides upon a car or train which he knows, or by the exercise of reasonable diligence would know, is prohibited from carrying passengers, is a trespasser, and not a passenger, and the only duty of the railroad company toward him is to abstain from wanton or reckless injury to him.</p> <p>8. Same — Alleged Passenger on Freight Train Presumptively a Trespasser.</p> <p>In the absence of any rule or practice permitting freight trains to carry passengers, the presumption is that one riding for his own convenience on a freight train, an engine, a hand ear, or any other carriage of a common carrier not designed for the transportation of passengers, is unlawfully there, and is a trespasser.</p> <p>4. Same — Freight Trains — Passenger—Knowledge op Facts Suggesting Inquiry.</p> <p>One about to board a train who has knowledge of facts which would put a person of ordinary prudence and diligence upon inquiry to ascertain whether or not the train is permitted to carry passengers is charged with a knowledge of all the facts which a reasonably diligent inquiry would discover.</p> <p>5. Negligence — No Such Degree as “Gross.”</p> <p>It is not error to refuse to instruct the jury that a defendant is guilty of gross negligence as distinguished from ordinary negligence on the one hand, and willful or reckless negligence on the other, because there is no such legal degree of negligence as “gross” negligence. The word “gross” in this connection is a mere epithet used to characterize one of the two legal classes of negligence mentioned.</p> <p>6. Bill of Exceptions — Statements in, Conclusive unless Excepted to Wren Bill is Settled.</p> <p>The statement of facts in a bill of exceptions is conclusive in an appellate court unless it is excepted to and the exceptions are recorded in the bill when it is settled.</p> <p>(Syllabus by the Court.)</p>

About 10 o’clock at night on Sunday, the 1st day of April, 1000, a fire broke out in the barn of one Best, in the town of Newport, in the state of Arkansas, which spread to a quantity of cotton near by, owned by the Lesser Cotton Company, and insured against fire by 14 insurance companies. The cotton was burned.

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>This action was brought by J. Foster & Co., the plaintiffs in error, in the United States court for the Northern district of the Indian Territory, at Muskogee. against James J. McAlester and others, the defendants in error, to recover the value of a stock of general merchandise. The plaintiffs acquired their right to the goods under a chattel mortgage thereon executed by John G. Terrell, Elmer Terrell, and J. C. Terrell, composing the firm of E. Terrell & Co., retail merchants doing business at Wagoner, in the Indian Territory, to secure the payment of a note executed by the mortgagors to the mortgagees for the sum of $3,071.50. and for another purpose not necessary to be mentioned. The mortgage was duly executed and acknowledged on the 2Sth day of January, 1895, and duly recorded ou the next day. In pursuance of a stipulation contained in the mortgage, the mortgagees, through their agent, took immediate possession of the mortgaged property, and, in conjunction with the mortgagors, proceeded to sell the goods in tbe usual course of business, applying tbe proceeds of the sale daily to the mortgage debt. In tbe month of March following the execution of the mortgage, Tootle, Wheeler & Motter and Tennent-Stribling Shoe Company severally brought their actions against E. Terrell & Co., and sued out writs of attachment, which were placed in the hands of the defendant McAlester, as United States marshal for the Indian Territory, who, with the other defendants, his deputies, levied the writs on tlic slock of goods covered by th'e plaintiffs’ mortgage, took them out of the plaintiffs’ possession, and sold them. In their answer the defendants alleged they had good right to seize the goods on the writs of attachment, because they say, in substance, that the plaintiffs’ mortgage was fraudulent and void for the following reasons: That John 6. Terrell was during the year 1893 engaged in the mercantile business in tbe town of Waldron, in Scott county, and in the town of Mansfield, In Sebastian county, Ark., and that on the 11th day of February, 1893, he executed a chattel mortgage to the plaintiffs on his stocks of goods at each of those places to secure an indebtedness of $4,300; that this mortgage was duly recorded in the counties in Arkansas, where the goods then were; that after-wards, about July 5, 3893, the plaintiffs permitted Terrell to remove both stocks of goods from Arkansas to Wagoner, in the Indian Territory, while the Arkansas mortgage thereon was in full force and effect; that it was understood and agreed that upon the removal of the goods to Wagoner the firm of E. Terrell & Co. was to be formed, consisting of John G. Terrell, Elmer Terrell, and J. C. Terrell, which firm was to be the successor of John G, Terrell, and assume the payment of his debts, including bis indebtedness (o the plaintiffs, and that it was also agreed after the goods were removed from Arkansas to the Indian Territory the firm of E. Terrell & Co. was to give the plaintiff's a chattel mortgage oil the goods whenever they deemed it necessary for their protection, and the same should be demanded; that it was agreed that the indebtedness of Terrell & Go. to the plaintiffs should be kept concealed from the attaching creditors and other creditors of Terrell & Co. for the purpose of enabling Terrell & Co. to purchase goods on credit, in order that the plaintiffs might secure the benefit of such purchase, by demanding the mortgage; that, in furtherance of this alleged fraudulent scheme, E. Terrell & Co. made in writing, and mailed to the attaching creditors, false and fraudulent statements of their financial condition; and that the plaintiffs made to Tootle, Wheeler & Motter, one of the attaching creditors, a false and fraudulent statement of the financial condition, promptness, and ability to meet their obligations, of E. Terrell & Co.</p>

States for the Southern District of New York. Writ of error to review a judgment rendered by the circuit court for the Southern district of New York upon a verdict against the Delaware, Lacka-wanna & Western Railroad Company for the sum of §10,000 in favor of the plaintiff in an action to recover damages for personal injuries sustained by him at a grade crossing known as “Hope Crossing,” on the line of the defendant’s railroad in New Jersey, on the evening of November 22,…

<p>Master and Servant — Action for Injury of Servant — Contributory Negligence.</p> <p>In an action by a servant against the master to recover for an injury, ■where the negligence of the master is established, evidence of contributory negligence must be undisputed and conclusive to warrant the court in directing a verdict for defendant.</p>

This is a suit against the city of Columbus, a municipal corporation of the county of Colorado, state of Texas, to recover on municipal bonds issued by said corporation in the year 1883 for the purpose of erecting waterworks. The issue was $25,000 in coupon bonds, of $500 each, bearing interest at 8 per cent, per annum, payable semiannually; one-half falling due in 15 years; the other half, in 25 years.

In Error and Cross Error to the Circuit Court of the United States for the Eastern District of Texas. This is an action at law by the indorsee against the acceptor of three bills of exchange. It was brought in the court below by the Levy & Cohn Mule Company, a corporation under the laws of Missouri, against Henry Kauffman, a citizen of Texas.

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

This cause was before this court at a former term on an appeal from the following decree: “This cause came on to be heard at this term, and was argued by counsel, and thereupon and upon consideration thereof it was ordered, adjudged, and decreed as follows: That the demurrers of the defendants to complainants’ bill are overruled, to which rulings defendants excepted; and the court having heard the bill and exhibits, and affidavits in support thereof, and counter affidavits…

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

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

<p>Bankruptcy — Exemption—Fraud.</p> <p>A bankrupt, whose business is carried on in the name of her son, as agent, without her having anything to do with it, cannot claim an exemption therefrom allowed by Code Ga., which requires the person claiming It to come into court with clean hands, practically all the indebtedness having been contracted within the five months preceding the petition in bankruptcy, and all the best of the stock having been sold off at auction during the last of said months, leaving old stock, which, with fixtures, is worth less than the amount of the exemption.</p>

<p>In Bankruptcy.</p>

In Equity.' Suit to foreclose mortgage. On motion for appointment of receiver. This case comes before me on motion of complainant for a receiver, and has been argued and submitted on bill and answer, and testimony as shown by the note of submission.

In Equity. On motion for an injunction based on a bill in the nature of a supplemental bill to enforce the removal of defendant as trustee.

<p>Bankruptcy — Examination—Incriminating Evidence.</p> <p>Though a bankrupt may, under Bankr. Act 1898, § 7, subd. 9, be required to submit to examination as to what property he has, what disposition he has made of any property which the court is entitled to administer, to what persons he has paid money or delivered property, and where they are, and though such section provides that no testimony given by him shall be offered against him in any criminal proceeding, he will not be required to develop the whereabouts of papers which might be used against him in a criminal proceeding.</p>

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

In Admiralty. Libel in rem to recover damages for collision. This is a libel to recover damages caused by a collision between the steamship Richmond and the Georgie Ciarle, a three-masted schooner.

In Admiralty. Libel in rem to recover damages for collision. This is a libel by the owner of the C. C. Mcllvaine to recover damages sustained in a collision with the Alabama on the evening of the 16th of January, 1900, in the harbor of Norfolk, Va.

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Jurisdiction of Court of Bankruptcy — Property Claimed by Third Persons.</p> <p>The filing of a petition in involuntary bankruptcy does not of itself vest the court of bankruptcy with jurisdiction over all property then in the possession of the bankrupt, whether owned by him or not, to the exclusion of the jurisdiction of a state court to try the title to such property.</p> <p>2. Same — Enjoining Suit in State Court — Priority of Jurisdiction.</p> <p>On the day following the filing of a petition in involuntary bankruptcy against a debtor, and before any action had been taken by the court, a corporation commenced an action in replevin in a state court to recover property of which it claimed to be the owner, but which was in the possession of the bankrupt, and such property was taken under the writ of replevin. Subsequently the court of bankruptcy appointed a receiver, made an adjudication, and appointed a trustee. Meld,, that it did not acquire jurisdiction over the property which had been taken on the writ of replevin, and which was never in its possession, and was not authorized to enjoin the further prosecution of the action in the state court, and compel the plaintiff therein to submit its claims to its own jurisdiction.</p>

<p>1. Costs — Few Bill — Court Records — Expense op Cartage.</p> <p>Expenses paid ior cartage of court dockets, flies, and minute books cannot be allowed to the clerk, but the item should be presented to the attorney general by the marshal for allow» nee by him, under the head of “Miscellaneous Expenses,” in the department of justice.</p> <p>⅜ Same — Charge por Copy op Indictment.</p> <p>A charge for a copy of an indictment furnished by the clerk to accused at his request, hut not shown to have been furnished to a United States marshal, or under order of the court, cannot he allowed.</p> <p>8. Sam» — Docket and Final Record Fee.</p> <p>Where an accused was indicted in a federal court in Texas, and was apprehended in Connecticut, and brought before the clerk as United States commissioner, hut the question of his removal was referred to the district judge, who admitted accused to bail, and thereafter ordered his removal, the clerk was entitled to charge docket, final record, and transcript fees.</p> <p>4. Same — Copy Fees.</p> <p>A clerk of a federal court is entitled to charge In his fee bill In a criminal case for copies of papers furnished to United States attorneys at their request, but he cannot charge for copies of an order excusing jurors, and for a copy of estimated costs furnished to a collector of internal revenue.</p> <p>5. Same — Copies of Subpoenas — Warrants of Arrest — Complaints.</p> <p>Since proceedings in criminal cases before United States commissioners are required to conform to the state practice, and in Connecticut the clerk of the state court is entitled to charge for copies of subpoenas, warrants of arrest, and complaints, a United States commissioner is entitled to charge for such items in his fee bill.</p> <p>8. Same — Charge for Furnishing List of Witnesses.</p> <p>A charge for furnishing a list of witnesses cannot be allowed a United States commissioner, the requirement being fulfilled by sending a copy of the subpoena with the officer’s return.</p> <p>7. Samf, — Copy of Mittimus.</p> <p>Where the record of the proceedings in a criminal case shows that a mittimus was issued, a copy wras unnecessary, and the United States commissioner was not entitled to charge1 therefor,</p> <p>8. Same — Copies of Recognizances.</p> <p>Since Rev. St. § 1014, requires that the original recognizances in criminal cases he sent up,’ a commissioner is not entitled to charge in his fee bill for copies thereof.</p> <p>9. Same — Copt op Mittimus.</p> <p>A clerk of a federal court is entitled to charge for a certified copy of a mittimus left with a jailer.</p> <p>10. Same — Unexplained Chapóes.</p> <p>Where items of a clerk’s fee bill are suspended by the department “for explanation,” the court will not interfere to enforce allowance thereof until final determination by the department.</p> <p>11. Same — Certificates.</p> <p>Since the clerk is required to make duplicate copies of orders to pay jurors, which he is required to keep in his office for public inspection, and such duplicates should be authenticated by the clerk’s certificate, the clerk is entitled to charge for such certificates in his fee bill.</p> <p>12. Same — Copies op Interrogatories.</p> <p>A clerk is not entitled to charge in his fee bill for making copies of interrogatories in depositions in a criminal ease.</p> <p>18. Same — Filing Depositions and Exiiibits — Continuances.</p> <p>A clerk is entitled to charge for filing and marking depositions and ' exhibits in a criminal case and for continuances, and this though the date of each term at which such continuances were taken was not stated.</p> <p>14. Same — Itemized Statement.</p> <p>The clerk is not required to furnish an itemized statement of charges for entering in his minute book a memorandum as to court business transacted, and the hour of adjournment of court, as a condition to his right to the allowance of his fees for such entries.</p> <p>15. Same — Statutes—Presentation of Claim before Suit.</p> <p>Acts June 27 and July 1, 1898 (2 Supp. Rev. St. pp. 813, 8S0), providing that no suit can be maintained by any United States officer to recover fees unless an account therefor has been presented for allowance and acted on in the auditing department, having no retroactive force, a clerk was not precluded from recovering fees in a suit begun before the passage of the act by reason of the fact that through inadvertence, or by reason of a custom to postpone such charges until termination of the cause, some of the charges included in the action had not been presented.</p>

<p>In Bankruptcy.</p>

<p>1. Corporations — Suit by Stockholder — Annulment of Executed Contracts.</p> <p>Where the management of a number of street railroad lines was consolidated in a single company by means of leases executed by the several companies owning the same, with the approval of a majority of their stockholders, and the lessee has gone into possession and is operating such lines, and has issued and sold a large amount of stock and bonds for the purpose of carrying out its plans, a court will not annul one of the leases, and compel the restoration of the property to the lessor, at suit of a single stockholder therein, unless a legal wrong and injury have clearly been done to him, or the corporation of which he is a stockholder.</p> <p>2. Same — Jurisdiction—Pleading.</p> <p>While a stockholder in a corporation may, under certain circumstances, maintain a suit in his own right against the directors to restrain them from doing an illegal or ultra vires act, yet where such act has been consummated, and by virtue thereof some third person has acquired rights, as against such person the rights of the stockholder are derivative, and not primary, and depend upon the failure and refusal of the corporation to enforce such rights in its own behalf; and he can only maintain a suit to annul the action taken in right of his corporation, and where the suit is in a federal court, by bringing himself within the requirement of equity rule 94, by showing in his bill that he has made proper efforts, without success, to secure such action as he desires on the part of the managing directors of the corporation, or, if necessary, by the stockholders, or by alleging such facts as will excuse a literal compliance with the rule, by making it appear that such efforts would have been futile.</p> <p>8. Same.</p> <p>A suit in a federal court by a minority stockholder against his corporation and another to annul a lease of the property of the corporation to its codefendant, which has been executed by the directors with the approval of a majority of the stockholders, given at a meeting duly called for the purpose, is one in which the stockholder sues in the right of the corporation, whether the invalidity of the lease is asserted on the ground of fraud of the directors, or because it was ultra vires; and, to authorize the court to entertain such suit, the bill must ^contain the jurisdictional averments required by equity rule 94.</p> <p>4. Pleading — Amendment—Supplying Jurisdictional Averments.</p> <p>Jurisdiction must affirmatively appear at every stage of a case, and the court is without authority to permit amendments to supply essential jurisdictional averments in the bill.</p> <p>& Corporations — Suit by Stockholder.</p> <p>The provision of equity rule 04, which requires a bill filed by a stockholder, founded on a right which may properly be asserted by the corporation, to “set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and if necessary of the shareholders, and the cause of his failure to obtain such action,” merely prescribes a rule of pleading; but the efforts of plaintiff so required to be alleged are jurisdictional unless it is both alleged and proved that they would have been futile, and where the question comes up on final hearing the evidence must be resorted to for the purpose of ascertaining whether the allegations relied upon to excuse the failure of plaintiff to apply to the directors or stockholders to bring the suit are true in point of fact.</p> <p>6. Same.</p> <p>Plaintiffs in a suit in a federal court alleged that they became the owners, as executors, of stock in one of two corporations which wore made defendants; that while such owners the directors of such corporation leased all ol' its property to its codefendant; that such lease was the result of fraud and conspiracy of the directors, was ultra vires, and was highly detrimental to the interests of the stockholders generally; that plaintiffs had, in a friendly manner, applied to the defendant corporations and to the directors to desist from such acts, but without effect; and the bill prayed that the lease be annulled. There was no allegation that plaintiffs had applied to the directors or stockholders to bring the suit, but it was alleged that the. directors who made the lease controlled the majority of the stock. The proofs showed that the latter allegation was untrue; that the lease was confirmed by a large majority of the stockholders at a meeting duly called for the purpose, and that during the 18 months which elapsed between the making of the lease and the bringing of the suit there had been a number of stockholders’ meetings, and a new board of directors had been, elected, only 5 of whom, out of 15, were directors at the time the lease was made. Held, that the allegations of the bill were not sufficient to excuse the failure to allege the jurisdictional fact required by equity rule 94, that plaintiffs had made efforts to secure from the directors, or, failing in that, from the stockholders, the action they desired, and the cause of their failure, nor the proofs sufficient to entitle plaintiffs to maintain the suit had such allegations been made.</p> <p>7. Same — Grounds for Annulling Contract — Fraud op Directors.</p> <p>The directors of a street railroad company, who owned about one-tliird of its stock, with the approval of a majority of the stockholders leased its property for a long term of years to another company, pursuant to a plan to unite the lines of the lessor and a competing company, together with those of the lessee, under a single management. In this plan a majority of the directors of the lessor company were interested, and after its consummation they became stockholders, and some of them directors, in the lessee company; paying for the stock, however, the same as other subscribers. The lessor company had a floating debt, besides its bonded debt, and no available funds, and had never paid a dividend. As a result of the lease, its debts were assumed by the lessee, and it was placed on a dividend-paying basis, which caused the market price of its stock to advance nearly 50 per cent. Helé, that there was nothing in such facts to establish fraud and conspiracy on the part of the directors which would authorize a court of equity to annul the lease at suit of a minority stockholder, commenced 18 months after its execution, and after the lessee had been in control and operation of the consolidated lines, and had marketed its stock and bonds with reference to the same.</p> <p>8. Same — Power to Lease Property — Traction Companies under New Jersey Statute.</p> <p>Act N. J. March 14, 1898 (Gen. Pub. Laws 1893, c. 172), authorizing the organization and providing for the regulation of traction companies, In section 16, authorizes any corporation created thereunder to iease the property and franchises of any other corporation owning or operating any street railway, subject to conditions therein prescribed. Held!, that it also conferred power on one of two corporations organized thereunder to lease its property to the other,</p> <p>9. Same — Mode of Exercising Power.</p> <p>Power given to a corporation by its charter, or by the general act under which it is incorporated, to lease its property and franchises, enters into the agreement between its stockholders; and, where no particular mode of exercising such power is prescribed, it may be exercised in the same manner as other general powers of the corporation,— by the vote of a majority of the stockholders, or by the board of directors.</p> <p>10. Same — Rights of Minority Stockholder.</p> <p>Where a corporation is authorized by the law under which it is created to lease all of its property and franchises, the making of such a lease does not deprive a dissenting stockholder of his property without due process of law, since the exercise of such power by a majority was one of the implied conditions under which he became a stockholder.</p> <p>11. Same — New Jersey Statute.</p> <p>Act N. J. March 14, 1803 (Gen. Pub. Laws 1893, c. 172), after authorizing traction companies organized thereunder to lease the property and franchises of any other street railway company, provides, in section 17, that any stockholder in a company which shall so lease its property who objects to such action may institute a proceeding in court, in which his damages shall be appraised, and also the value of his stock, and that the lessor company shall either purchase his stock at the appraised value, or pay the damages assessed. Heidi, that such provision is not invalid as against a stockholder in a corporation organized under the act, who took his stock subject to such condition, as authorizing a condemnation of his property under the power of eminent domain for private use, but that it is valid, as providing an additional remedy for his benefit, of which he may avail himself, or not, at his option.</p>

<p>Bankruptcy — Preferences—Payment on Note Heed by Indorsee.</p> <p>A payment made by an insolvent within four months prior to his bankruptcy to a bank, to apply on a note given by him to a solvent creditor, who had indorsed the same and sold it to the bank, constitutes a preference to such creditor, which must be surrendered, under Bankr. Act 1898, § 57g, before he can prove his claim against the bankrupt estate.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from a decision of the United States circuit court for the Southern district of New York (109 Fed. 564), affirming a decision of the board of United States general appraisers,, which sustained the action of the collector and overruled the protests of the appellants.</p>

<p>Customs Duties — Figubkd Cotton Cloth.</p> <p>Tariff Act 1897, par. 813, imposing an additional duty on “cotton doth in which other than the ordinary warp and filling threads have been introduced in the process of weaving to form a figure,” applies to cotton goods, known as “Madras” or “damask” goods, which are “ornamental, with spots or figures woven in by independent filling threads introduced for that purpose”; the threads not being an integral part of the fabric, and tbe portions not needed to make the figure being cut off after the weaving process is concluded.</p>

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

<p>Patents — Anticipation—'Tubular Balt, Mills.</p> <p>The Davidsen patent, No. 648,115. for improvements In tubular ball mills for pulverization of various materials, is void for anticipation by the British patent to Redfern.</p>

This is an appeal prosecuted from a decree passed by the United.

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

¡States for the Southern District of Iowa. This was an action on two policies of insurance for ?2,500 and $5,000, respectively, executed by the Mutual Life Insurance Company of New York, the plaintiff in error, insuring the life of one Edward S. Kelly.

<p>1. Master and Servant — Injury to Servant — Duty of Inspection.</p> <p>In an action by a lineman against a telegraph company to recover for an injury sustained by plaintiff by reason of the breaking of a pole upon which he was working, which was decayed below the surface of the ground, it was not error of which defendant can complain to submit to the jury the question whether, by the custom and practice in that kind of work, the duty of inspecting the pole rested upon the foreman or the plaintiff, and to make defendant’s liability dependent upon whether the duty was that of the foreman, where the evidence as to the custom was conflicting, but it was shown that a proper inspection would have disclosed the defect.</p> <p>3. Same — Place to Work: — Responsibility of Master.</p> <p>The duty of inspecting a telegraph pole before a lineman climbs it to work thereon, if not that of the lineman himself, is the positive duty of the master which is responsible for the failure to have such inspection made, notwithstanding it has engaged another, however competent, to perform the duty.</p>

The following is the opinion of the circuit court, delivered by DOCKE, District Judge: Not only must the findings of tlie master in this ease be considered prima facie correct, but a careful consideration of the master's report, the exceptions thereto, the testimony upon which the same is based, and the arguments of counsel in this case, both orally and by brief, compels me to reach the same conclnsion that he has reached.

The bill in this case was filed in the circuit court by the Southern Building & Loan Association against Joseph P. Carey and Emma A. Carey, his wife, seeking the foreclosure of two trust deeds executed by said Carey and wife in favor of the appellant, one for $1,T00, and the other for $1,000, secured on certain premises belonging to Emma A. Carey.

The Bank of Mammoth Springs was an Arkansas corporation, located at Mammoth Springs, in that state. On the 9th day of June, 1891, G. C. Buford, the defendant .in error and defendant below, was elected president of the bank, and continued to be such until the 9th day of June, 1896. A statute of Arkansas under which the bank was organized, and which was in force during the period mentioned, contains the following provisions: “Sec. 1337.

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

<p>h Contracts — Fraudulent Representations — Right of Reliance.</p> <p>A party making a contract to dredge a harbor, and being some distance from the harbor at the time, is entitled to rely on the representations of the other party, who has done a portion of the work and had access to the chart showing soundings, as to the thickness of the rock to be removed, and is not required to investigate the facts himself, and, such representations being relied upon and being false and known to the party making them to be so, is not bound by the contract.</p> <p>2. Same — Matters of Opinion.</p> <p>Representations made after soundings had been taken in the harbor for the purpose of ascertaining the character of the work, and a chart thereof made with which the party making the representations was familiar and the other party not, were not mere expressions of opinion, but were matters of fact, which could be relied on, though not accompanied with specific statements as to actual measurements having been made.</p>

On the 23d day of September, .1898, the Wichita Railway, Light & Power Company entered into a contract with the city of Wichita by which it agreed to furnish the city with 150 arc lights of the standard of 2,000 candle power, and to have the same “in operation by April 1st, 1899.” The contract contained the following provisions: “And it is further agreed that in the even4' , that the said first party shall fail to furnish and put in operation for the use of the said city the…

On the 2d day of July, 1887, Redhead and wife made a- deed to E. K. Butler, the plaintiff in error and plaintiff below, which reads as follows: “Know all men by these presents: That Wesley Bedhead and Annie S. Bedhead, his, wife, of Polk county and state of Iowa, in consideration of the sum oí thirty-five hundred dollars ($8,500) in hand paid by B. K. Butler, .of Cooit county and state of Illinois, do hereby sell and convey unto the said E. K. Butler, all the coal and the…

This writ of error challenges the judgment and sentence of the plaintUS in error upon an indictment found in the district court for the Eastern district of Missouri on November 9, 1800. The indictment contained two counts. The first charged the embezzlement of $23(5.06 of the money-order funds of the United States, under section 4046 of the Revised Statutes, and the second charged the embezzlement of $16.96, under Act March 3, 1875 (18 Stat, 479, e. 144).

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

<p>1. Shipping — Contract op Affreightment — Termination by Abandonment op Ship.</p> <p>The involuntary abandonment of a vessel by her master and crew under stress of weather, without any actual intention to renounce the contract of affreightment between the ship and cargo owners, does not terminate such contract, but on the bringing of the ship into port by salvors in a condition to resume her voyage without unreasonable delay the master is entitled within a reasonable time to reclaim the vessel and cargo, and on indemnity to the salvors to take the cargo to the stipulated port of destination.</p> <p>2. Same — Interbuption op Voyage by Cargo Owner — Damages RECOVERABLE.</p> <p>Where a vessel, abandoned at sea under circumstances which rendered such abandonment excusable, so that it did not operate to terminate the contract of affreightment, is brought into port by salvors, but by the action of the cargo owners the resumption of the voyage is prevented. the shipowner is entitled to be compensated for his loss of freight on principles of equity; but under such principles his damages cannot go beyond compensation, and he is not entitled to recover the gross freight he would have earned under the contract, but only the estimated net freight, and from that should be deducted the net amount the ship earned, or should reasonably have earned, during the time It would have taken her to complete the voyage.</p> <p>8. Admiralty — Objections to Computation by Commissioner — Waiver.</p> <p>Practice on a hearing before a commissioner in admiralty is analogous to that before a master in chancery, and objections to computations made by the commissioner should be taken by exception to his report, and, if not so taken, or at least urged on the hearing before the court on such report, they will be treated as waived, and will not be considered when raised for the first time by assignments of error in the appellate court.</p> <p>4.' Same — Practice—Consolidation of Causes.</p> <p>Where several proceedings have been instituted in a district and a circuit court, growing out of a disaster at sea, against the ship and cargo, to recover for salvage services, by the cargo owner to obtain possession of the cargo, and also by the master to subject the cargo to the payment of freight and general average, it Is within the power of the circuit court thus having acquired jurisdiction of the subject-matter and the parties to consolidate the several suits, and determine and adjust the rights of all parties.</p> <p>8. Shipping — Adjustment between Vessel and Cargo — Valuation of Cargo.</p> <p>Where the cargo of a vessel has been sold by order of the court in a port to which it was brought by salvors, in proceedings regularly instituted by the owners to recover possession, the proceeds of the sale may properly be taken as its value for the purpose of making adjustment between the several parties in interest, although the proceeding by the cargo owners was unwarranted, and the cargo was sold for less than Its actual value.</p>

<p>1. Malicious Prosecution — Probable Cause — Malice—Burden of Proof.</p> <p>In an action for malicious prosecution, plaintiff has the burden of showing both that defendant did not have probable cause and that it acted with malice.</p> <p>2. Same — “Probable Causis’’ — Definition.</p> <p>“Probable cause” means reasonable cause to believe that plaintiff was guilty, based on facts and circumstances sufficient in themselves to induce'such belief in an ordinary person.</p> <p>8.Same — Effect of Malice Alone.</p> <p>If defendant had probable cause, it would make no difference that it acted with malice.</p> <p>4. Same — Presumption of Malice.</p> <p>Malice may be inferred from the absence of probable cause.</p> <p>5. Same — Commitment of Plaintiff before Magistrate — Effect.</p> <p>A judgment of a magistrate, finding that there was probable cause for believing plaintiff guilty, and binding him over to await the action of the grand jury, constitutes prima facie evidence of probable cause.</p> <p>6. Same — Ignoring of Bill of Grand Jury — Effect.</p> <p>The ignoring by the grand jury of the bill against plaintiff constitutes prima facie evidence of want of probable cause.</p> <p>7. Same — Question for Jury.</p> <p>The question as to which of the two prima facie cases has the greater weight is for the jury.</p> <p>8. Same — Advice of Prosecuting Attorney — Effect.</p> <p>If defendant’s agents and attorney before making the complaint against plaintiff made a full and fair disclosure of all the facts in their possession, and which they could reasonably obtain, to the prosecuting attorney, and were advised by him that a crime had been committed, and that there was probable cause to believe defendant guilty, and if the prosecuting attorney himself drew the complaint, plaintiff would have probable cause, and would not be liable for malicious prosecution.</p> <p>9. Same — Prosecution Under Inapplicable Statute.</p> <p>• The fact that the statute under which plaintiff was presented did not afford an authority for his punishment would not alone render defendant liable for malicious prosecution.</p> <p>10. Same — Measure of Damages.</p> <p>In estimating the damages caused by a malicious prosecution, the Jury may consider loss of time and expenditure of money by accused in his defense, and any injury to his reputation, character, standing, or feelings directly occasioned by the other party’s wrong.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Preferences—Surrender.</p> <p>A bankrupt on January 2d gave a check to a creditor on the A. Bank, dated January 20th, and became insolvent on the latter date. On that day the creditor deposited the check with the N. Bank, which on the following day received the money through the clearing house, and the amount was charged by the A. Bank against the bankrupt’s account. Heidi, that the creditor had received a preference, though the payment was made to him through the medium of the N. Bank, and not directly, and that it would have to be surrendered before he could prove other claims.</p>

In Bankruptcy. On review of order of referee requiring the bankrupts to turn over to the trustee certain sums of money found to be in their possession or under their control, and on a rule to show cause why they should not be adjudged in contempt for failure to obey such order.

<p>In Admiralty. Suit in rem against a British ship by seamen to recover wages. On exceptions to libel.</p>

<p>Bankruptcy — Corporations—Dissolutior by State Court — Effect.</p> <p>The sole stockholder of a Maryland corporation filed a bill in a state court alleging its insolvency, and praying the court, under Code Md. art. 23, and amendments, to declare the dissolution of the corporation and appoint receivers. The corporation answered, admitting the allegations of the bill, and the court on the same day entered its decree granting the relief prayed. Thereafter creditors filed a petition asking to have the corporation adjudged bankrupt. Held, that a motion to quash the petition in bankruptcy on the ground that the state court had full jurisdiction when it entered its decree dissolving the corporation, and that, therefore, the corporation had no existence when the petition was filed, should be denied, the action in the state court being in the nature of an insolvency proceeding, and the bankrupt act superseding state insolvency laws.</p>

<p>1. Patents — Designs—Invention.</p> <p>Tbe fundamental question in determining the validity of a design patent is whether the inventive .faculty has been exercised to produce something which is original and pleasing to the eye.</p> <p>2. Same — Identity of Designs.</p> <p>In design patents, the test of identity on questions of anticipation and infringement is the eye of the ordinary observer; and in determining such question the court may avail itself of such common knowledge as is possessed by the general public.</p> <p>8. Same — Novelty—Design for Bell.</p> <p>The Scranton design patent, No. 33,142, for a design for a bell, is void for lack of patentable novelty. Also held not infringed.</p>

<p>Bale — Action for Price — Failure to Maintain Defense — Withdrawal of Counterclaim — Effect.</p> <p>In an action against tbe United States to recover the contract price of lighthouse lanterns' constructed for it by plaintiff, defendant set up in defense an amount claimed to have been paid to third persons, who had a contract to build one of the' lighthouses, for damages caused to them by plaintiff’s delay in furnishing the lanterns for that particular lighthouse, and introduced in evidence a voucher for the amount paid, but no proof to show the justness of the claim, or how and in what manner the third persons were damaged. The court thereupon suggested that the evidence so offered would be insufficient to prove the defense, and counsel for the government withdrew its counterclaim and pleas setting up the same. Helé, that plaintiff was entitled to judgment for the amount claimed.</p>

<p>Bankruptcy — Who May Become Voluntary Bankrupts — Debts.</p> <p>The word, “debts,” as used in Bankr. Act 1898, § 4, providing that “any person who owes debts, except a corporation, shall be entitled to the benefit of this act as a voluntary bankrupt,” must be construed in accordance with the definition given in section 1, subd. 11, as limited to a “debt, demand, or claim provable in bankruptcy,” and an unliquidated claim for damages for a personal tort Is not such a debt Where the only debt scheduled by a voluntary bankrupt was a judgment rendered against him by a state court, and it is shown that such judgment was for a personal tort, and that an appeal therefrom had been taken and was pending at the time of the filing of the petition, the effect of which, under the laws of the state, was to supersede the judgment, the adjudication will be set aside and the proceedings dismissed.1</p>

<p>ADMIRALTY ■ -Pin ÜIÍTTT OP LlKNS.</p> <p>An admiralty lien for towage is inferior to a statutory lien for repairs, the towage having been performed more than six months before, without effort to collect therefor till after, the repairs.</p>

<p>1. Creditors — Remedies against Sureties — Limitations.</p> <p>Though ordinarily creditors will be allowed to proceed against property conveyed by their debtor to secure his sureties, such action must be taken on their part within the statutory period of 10 years, or will be barred.</p> <p>8. Same — Ignorance of Situation — Effect.</p> <p>The mere fact that the debtor concealed his fraudulent conduct, and that the creditors knew nothing of the situation until a short time before bringing the action, is insufficient to take the case out of the statute of limitations, where diligence on the part of the creditors to discover the situation would have enabled them to secure the property in payment of their debts.</p> <p>8. Same — Laches.</p> <p>Regardless of the statute of limitations, laches on the part of the creditors in delaying their action 10 years or more may defeat the right.</p>

<p>In Bankruptcy.</p>

<p>Involuntary Bankruptcy — Amount op Claims — Jurisdiction.</p> <p>Payments made by a bankrupt to certain of the petitioning creditors, reducing the aggregate amount of the petitioning creditors’ claims below the statutory limit, does not defeat the jurisdiction of the bankruptcy court, where subsequently enough other creditors come in to raise the amount above the jurisdictional limit</p>

<p>1. Judgments in Criminal Cases — Enforcement.</p> <p>Rev. St. § 916, providing that the party recovering a judgment in any common-law cause in a federal circuit or district court shall be entitled to similar remedies on the same as are provided in like causes by the law of the state, does not apply to judgments in criminal cases.</p> <p>2. Same — Construction of Statute.</p> <p>Rev. St. § 1041, providing that judgments in criminal and penal cases as to the fine or penalty may be enforced by execution against the property of the defendant in like manner' as judgments in civil cases are enforced, means only that the government in enforcing judgments for fines and penalties is not restricted to mere imprisonment of the defendant, but may proceed also by execution against his property.</p> <p>8. Same — Homestead Exemption — Assertion against Fine.</p> <p>Rev. St. 1042, provides that a poor convict, who has been imprisoned because of the nonpayment of a fine, may be released on making oath that he has no property (exceeding $20 in value), except such as is by the state law exempt from being taken on “civil precept for debt.” There is no United States statute expressly making a homestead in Virginia subject to fines imposed by the government. Meldt that, though the homestead laws of Virginia apply only to contract debts, and the exemption cannot be claimed against a fine due to the state, or even against a judgment for tort obtained by a private individual, the exemption may be asserted against a fine due to the United States government</p>

At Law. Action to recover damages for alleged malicious prosecution of a civil action, in which the pleadings contained slanderous accusations, injurious to the present plaintiff. Demurrer to complaint overruled.

In Equity. Robert Moore, ah alien, filed the bill in this case on November 14, 1901, praying for the appointment of a receiver for the New Orleans Waterworks. Company, a corporation organized under the laws of the state of Louisiana. Frank T. Howard was appointed receiver of said corporation on said date, and duly qualified as such receiver.

<p>1. CONSTITUTIONAL Law— IMPAIRING OBLIGATION OF CONTRACT — ORDINANOF Regulating Price of Gas.</p> <p>Under the Illinois constitution of 1870, and the general incorporation act adopted in conformity therewith, there is a reserved power in the state to regulate from time to time, within reasonable limits, the rates to be charged by gas companies incorporated under such act, in the absence of explicit contracts created by ordinance fixing such rates. Act June 5, 1897, authorizes gas companies doing business in the same city or town to consolidate into a single corporation, which shall be one of the merging companies, but provides that the consolidated corporation shall be subject to the legal obligations resting upon each of the constituent companies, none of them being, in the contemplation of the act, extinguished. Complainant, a Chicago gas company, was incorporated In 1855 by special act, which, as subsequently amended, gave the city the right to regulate its charges, but provided that it should not have authority to compel the company to furnish gas at a less rate than $3 per thousand feet. Subsequently complainant acquired by consolidation, under Act 1897, the lines of other companies organized after 1870, and later brought suit in a federal court against the city to enjoin the enforcement against it of an ordinance limiting the charge to be made for gas by any corporation or person furnishing the same to 75 cents per thousand feet, the bill alleging that as applied to complainant such ordinance was unconstitutional as impairing the obligation of the contract made by its charter, as denying it the equal protection of the laws, and as depriving it of its property without due process of law. Helé that, in the absence of allegations showing that the rate fixed by the ordinance was unreasonable, complainant was not entitled to the relief demanded on either of such grounds; that the limitation upon the power of the city to fix rates contained in its original charter did not extend to the lines it acquired, without the consent of the city, by the absorption of other companies; but that it took such lines, under the provisions of the consolidation act, subject to all rights which the city or the state possessed as against the original companies.</p> <p>3. Federal Courts — Jurisdiction—Construction of State Laws.</p> <p>Whether an ordinance is within the powers delegated to a city by the laws of the state is a question the decision of which belongs primarily to the courts of the state, and a federal court will not determine it, in a suit between citizens of the same state in which its jurisdiction is invoked for the decision of a federal question, unless necessarily involved in such decision.</p>

In Equity. Suit for foreclosure of a mortgage. On petition of intervention of Gideon D. Hampton.

<p>1. Equity — Jurisdiction—Adequacy of Legal Remedy — Discretion of Court.</p> <p>The application of the rule that equity jurisdiction cannot be invoked where there is an adequate remedy at law depends on the circumstances of the particular case, and rests In the sound discretion of the court, where there are any circumstances which show that the legal remedy may not be perfect and complete.</p> <p>2. Cancellation of Insurance Policy — Fraud-Concealment of Illness.</p> <p>Insured applied for a life policy, bis application reciting that the insurance should not take effect “until the first premium shall have been paid during my continuance in good health.” On January 6th thereafter. Insured became suddenly ill with appendicitis, and the following day his private secretary paid the first premium to the agents, and received the policy from them, concealing the fact of insured’s illness. On January 8th insured died. It appeared that the insurance company and insured’s executors were citizens of different states, and also that the policy as issued did not call for the payment of a stipulated sum of money, but for the delivery of 240 bonds, of ⅜1,000 each, payable 35 years from date, with interest coupons annually. Helé, that the company’s remedy by way of defense to an action at law was inadequate under the facts, and that it could sue in equity for the cancellation of the policy.</p>

Voluntary Bankruptcy. Heard upon an application by the Capital Brewing Company, a creditor, to vacate an order discharging the bankrupt from his debts, the creditor alleging in its petition that it was not listed in the schedule of creditors annexed to the petition filed by the bankrupt, and did not have notice or knowledge of the proceedings, until after the time allowed for making proof of debts had elapsed, and charging that the bankrupt has been guilty of fraud in…

<p>BANKRUPTCY — PhOVABIjK CWlMS — BkqUISITK AMOUNT.</p> <p>An ice company agreed to deliver ico to the petitioning creditors in bankruptcy for specified terms, and at a specified price, and afterwards broke the agreement. The current damages sustained by petitioners up to the time of the filing of their petition did not aggregate $500, but the ruling market price of ice was such that new contracts could not he made for the terms covered by the old contracts without such loss to petitioners as would in the aggregate exceed that sum. Heidi, that the loss for the entire term was provable, and hot merely the current damages, and therefore petitioners were creditors for an amount sufficient to give the court jurisdiction.</p>

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

<p>Injury to Stevedore — Liability of Ship — Crew Working for Another THAN THE SHIP.</p> <p>A sliip is not liable for injury to a stevedore in unloading the ship, through negligence of the winchmen, though they were members of the ship’s crew, they at the time being under a special contract of hire, either for the consignee or the head stevedore.</p>

<p>Bankruptcy — Corporations Subject Thereto — Carriers—Tradin'a or Mercantile Pursuits.</p> <p>A carrier corporation is not engaged in trading or mercantile pursuits, so as to bring it witliin Bankr. La,w 1898, subjecting thereto corporations ‘"engaged principally in manufacturing, trading, printing, publishing or mercantile pursuits.”1</p>

<p>At Law. Action on a policy of life insurance. On demurrer to answer.</p>

<p>Patents -Interlocutory Decebe fob Inmukgement — Motion fob Modification.</p> <p>An interlocutory decree haying been entered, sustaining' the validity of a patent and directing the defendant to account, a motion to modify the decree, so as to obtain a decision whether a special article made by the defendant infringes, will be refused where that question was not raised by the pleading or made the subject of proof. It is not the province of the court to advise a defendant what he can or what he cannot do, under such a decree, to avoid being charged with contempt, nor to determine in advance on motion questions which may subsequently arise before the master in the accounting.</p>

<p>1. Collision — Ovebtaking Vessel — Duty to Give Signals.</p> <p>It is the duty of an overtaking vessel to see to it that she does not come so near the overtaken vessel as to cause danger of collision; and, if she does come within the line of danger, it is her duty to warn the other vessel by signals, whether she intends to pass or not.</p> <p>3. Same.</p> <p>A steamship which overtook, ran down, and sank a small tug in the Schuylkill river in the daytime, and without giving any signal of her approach, was in fault, and is liable for the damages, in the absence of evidence clearly showing that the collision was caused by some fault of the tug.</p>

<p>In Admiralty. Suit to recover on a contract for towage services.</p>

<p>Building and Loan Associations — Contract with Borrowing Stockholder— Validity.</p> <p>By a contract between a building and loan association and a stockholder the latter sold, assigned, and transferred the 110 shares of stock owned by her, of the par value of $100 each, and which she obtained at the same time, to the association, absolutely, in consideration of its advancement to her of $5,500, “by way of anticipation of the value at their maturity” of the 110 shares. It was further provided that $5,500,. being the par value of 55 shares, was given to the association as a premium. The bond required the borrower to repay the loan within 7 years, together with interest, and the full amount of the premium, provided the stock had at the time matured and become worth par, and, if not, so much of the premium as had then been earned, or, in. default of such payment, to keep up the dues 011 the 110 shares until they matured, in addition to the payment of interest. Held1, that the transaction was merely one of loan, the borrower retaining no interest as a stockholder in any case, and that, since the association would receive, in case the stock was paid out until it reached par value, as contemplated, double the amount loaned, besides interest thereon, the contract was unconscionable, and would not be enforced by a court of equity by a foreclosure of the mortgage given to secure it, for the-sum claimed to be due thereunder, amounting to $2,600, after the borrower had paid to the association a sum exceeding the amount borrowed,, with interest.</p>

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

<p>Mining Claims — Conclusiveness op Patent — Conflict of Surface Lines. Issuance of a patent, after due notice, for a mining claim, conclusively determines its priority, as to the surface and the incident extralateral rights, over claims whose surface lines conflict therewith.1</p>

<p>1. Agency — Contract—Liability of Principal to Subagents.</p> <p>A principal cannot be made liable to a subagent appointed by his general agent, where such principal in the contract with his general agent has expressly stipulated that such general agent is to be responsible to the principal for the acts and conduct of his subagents, and that in no case and under no circumstances shall the principal be liable for commissions or compensation to such subagents.</p> <p>2. Same — Construction of Contract.</p> <p>By a contract between an insurance company and its general agent, appointed for certain territory, the latter was authorized to appoint or employ all subagents reasonably necessary for the proper transaction of the business contemplated by the contract, “and for the fulfillment of his agreements hereunder.” It further provided that the general agent should be directly accountable to the company for all moneys, premiums, etc., belonging to the company, and liable in respect to all acts, doings, and agreements of the subagents, and should pay all salaries, commissions, or compensation earned by them, “and said company shall under no circumstances nor in any manner be liable for the same or any part thereof.” Held, that a contract made by the general agent in his own name, appointing a subagent for a definite term, who was required to give bond, and to account to him alone, did not create a contract of agency between the subagent and the company which could be enforced against the latter after the general agent had been removed in accordance with the terms of his own contract.</p> <p>8. Pleading — Effect ob7 Admissions.</p> <p>An admission in an affidavit of defense made by an officer of defendant corporation that plaintiff was appointed a subagent of defendant by its general agent, who had authority to make such appointment, is not inconsistent with the defense that under the contract between defendant and Us general agent the authority of the latter was limited to the appointment of subagents subordinate to his own agency, and that the subagency was terminated by the termination of the general agency.</p>

<p>Drafts — Conditional Acceptance — Accompanying Forgicd Bills of Lading.</p> <p>A draft directed the drawee to pay, and to charge the same to account of certain flax seed, forged duplicate bills of lading for wlitcli were attached to the draft. The acceptance was, “Accepted * * * against indorsed bills of lading” for the flax seed. Before arrival of the steamship on which was the flax seed, according to the bills of lading, and without knowledge that it was not there, or that the bills of lading wen; forged, the acceptor paid the draft. Heldi, that acceptance was conditioned on delivery of genuine bills of lading, and that this condition was not waived by payment without knowledge of the facts; so that, in the absence of special equities, the acceptor could recover the money paid.</p>

On Application for Writ of Prohibition. The relator presents the following: “To the Honorable United States Circuit Court of Appeals for the Fifth Circuit: The petition of Louis P. Daquet, a citizen, of the state of Louisiana and a resident of the city of New Orleans, respectfully shows: That he is an attorney at law, duly admitted to practice in the courts of the United States, and that he lias recently had occasion in his professional capacity ¡0 appear in the United…

• This was an action on coupons cut from bonds of Perkins county, Neb. The county defended on various grounds, which are noticed in the opinion.

<p>L Bankruptcy — Payments on Account Current — Preferences.</p> <p>The receipt by a creditor of payments upon an account current in the usual course of business, which are followed by new credits for property delivered to the debtor, which becomes a part of his estate, for which the creditor is not paid, and which equals or exceeds in amount and value the payments, does not constitute a preference, under section 00a, and does not require the creditor to surrender such payments, as a condition of the allowance of his claim, under section 57g of the bankrupt act of 1898.</p> <p>2. Same— Creditor's Claim on Account Current not Divisible.</p> <p>The claim of a creditor for a balance due upon an account current with the bankrupt is one single claim, and in determining its allowance, and the existence of alleged preferences arising out of the acts it evidences, it must bo so considered. It may not be divided into its items or into separate claims for that purpose.</p> <p>8. Sake — ¡Surrender of Preferences — 2Tew Credits.</p> <p>A creditor who comes within the provisions of section 60c of the bankrupt act may set off, the amount of his new credits therein mentioned against the amount he would otherwise he required by section 57g to surrender before proving his claim, although he did not have reasonable cause to believe that the transfer of the property to him was intended as a preference, and although the property so transferred is not recoverable by the trustee under section 60b.</p> <p>(Syllabus by the Court.)</p>

<p>1. Marshaling Assets — Junior Incumbrancer — Resort to Fund not Covered by Superior Lien.</p> <p>One who has a lien upon a single fund or property may compel another, who has a superior lien upon the same fund or property and upon another fund or property, to first resort to the fund or property which is not douhly incumbered for the satisfaction of his claim.</p> <p>2. Same — Demand by a Junior Incumbrancer.</p> <p>A demand or notice by the holder of an inferior lion on one fund or property upon the holder of the superior lien thereon that he preserve and first exhaust his lien upon other funds or property covered thereby, made or given before his lien upon such funds or property is relinquished or lost, is indispensable to the enforcement of the right of the holder of an inferior lien upon property doubly incumbered to compel the holder of the superior lien to preserve or first exhaust that lien upon property covered by it alone.</p> <p>(Syllabus by the Court)</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In the early morning of October 30, 3900, while it was yet dark, a road engine of the Choctaw, Oklahoma & Gulf Railroad Company collided with a horse which was caught in a trestle as the engine was backing, tender foremost, from Brinkley to Hulbert, and injured Will Holloway, the defendant in error. There was no light on the forward end of the tender, and no employe there to warn of danger. There was no brake on the engine, although there was a brake upon the tender. Holloway was a fireman working on the engine. He was aware of the darkness of the night, of the absence of a light and of an employs upon the end of the tender, but he insisted that he did not know that there was no brake upon the engine. He sued the company for negligence, in that it failed to supply the engine with a proper brake; alleged that the accident would not have occurred if such a brake had been provided, and that through its absence he was caught between tbe tender and the engine when the air was applied to the brake upon too tender, and seriously injured. The court instructed the jury that if there was no brake upon the engine, and Holloway did not know, and would » not by the exercise of reasonable diligence and prudence have known, that the engine was supplied with a brake, and if toe absence of the brake caused the accident, toe company was liable, and they might return a verdict against it, but that, if there was a failure of proof of either of these facts, their verdict must be for the defendant. This instruction, and the refusal of the court to instruct the jury to return a verdict, for the defendant, are the principal errors assigned by the company, although many others are specified.</p>

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

On May 26, 1890, John Fitzgerald & Bro. were engaged In constructing a railroad from Custer City to Deadwood, in South Dakota. They constructed a portion of this railroad by means of workmen whom they employed and fed themselves, and other portions by the use of subcontractors,' who agreed with them to construct certain portions of the railroad for certain prices.

<p>Petition of Harry C. Spinks for Intervention as Defendant.</p>

<p>Bankruptcy — Discharge—Concealment of Assets.</p> <p>The intentional omission by a bankrupt to schedule or bring to the attention of his trustee his interest in real estate of the value of $10,000, which a short time prior to his bankruptcy he conveyed in trust, the income to be paid to another during life, and the property then to be held for his own benefit, constitutes ground for refusing him a discharge, and he is not relieved from the consequences of such concealment' by the fact that he was advised by his attorney that his deed devested him of all interest in the property.</p>

<p>Patents — Prior Invention — Evidence to Sustain Plea.</p> <p>A plea to a bill for infringement of the Stikeman patent, No. 541,395, for improvements in library shelving-, alleging prior invention by another, IwW not supported by the evidence, which was directed entirely to showing prior invention of the bracket described in claim 1, which is but one element of the combination covered by claims 2 and 3.</p>

<p>In Bankruptcy. On review of action of referee disallowing exemptions claimed by bankrupts.</p>

<p>1. Corporations — Status or Stockholders — Right to Vote.</p> <p>Stockholders of a corporation, unlike directors, are not trustees for the other stockholders, but each represents Ms own interest only in stockholders’ meetings, and may vote on any measure, even though he has a personal interest therein separate from, or adverse to, that of other stockholders.</p> <p>2. Same.</p> <p>A corporation which, as permitted by the laws of the state, owns the common stock of a second corporation, is not deprived of the right to vote such stock in favor of dissolution, because, as a consideration for its stock, it guarantied the payment of dividends on the preferred stock of the second corporation so long as the latter should exist.</p> <p>8. Same — Dissolution—Power of Court to Enjoin.</p> <p>The general corporation act of New Jersey provides that any corporation may be dissolved whenever deemed advisable by the board of directors, provided two-thirds in interest of all the stockholders shall consent thereto at a meeting called for the purpose. Held), that a court of equity had no power to review the decision of the board of directors of such a corporation as to the advisability of dissolution or to enjoin such dissolution at the suit of a minority stockholder.</p>

<p>Proceeding by the United States for Forfeiture of Goods for Nonpayment of Duty.</p>

In Equity. Suits for infringement of letters patent No. 464,029, issued to Knowles c% Tatham December i, 1891, for a device for grinding the flats employed in carding engines. On final hearing.

In Equity. Suits for infringement of patents. See 106 Fed. 78. On exceptions by defendants to master’s report, stating account for damages.

In Equity. Suit for infringement of patents. On bill of complaint and plea. The amended bill is in the ordinary form for the infringement of four letters patent for improvements in marking and stamping apparatus designed for use in the post offices of the United States, in canceling stamps and postmarking mail matter.

<p>Partition — Eights of Purchaser at Salk — Eesoiskion for Defect of Title.</p> <p>Where real estate was sold in a partition suit between collateral heirs of the last owner, subject to tbe condition that a deposit should be made by the purchaser, which should be forfeited in case he failed to comply witli his bid, the successful bidder cannot refuse to complete the purchase. and recover Ms deposit, on the ground that the title is unmarketable, because the evidence did not exclude the possibility of the existence of other heirs not before the' court, when such evidence had been found sufficient by the master and the court, and was clearly so unless the recollection of the witnesses was at fault, and their testimony was unimpeaehed.</p>

<p>1. Subrogation — Holders of Invalid Bonds.</p> <p>Where a county undertakes to fund its outstanding indebtedness into bonds, and on issuing such bonds, payable to bearer, takes up, cancels, and destroys the warrants evidencing such indebtedness, and the bonds are bought in the open market, and are afterwards repudiated by the county, and are held by the court to be void, for want of power at the time in the county to issue them, the purchaser of the bonds for a valuable consideration, on offering to .surrender them to the county, is entitled to be subrogated to the rights of the original warrant holders, and to recover from the county the amount of the warrants. Irvine v. Commissioners (C. C.) 75 Fed. 765, followed.</p> <p>2. Statute of Limitations — Invalid Bonds — Action on Original Consider- ' atton.</p> <p>The statute of limitations does not begin to run against such suit until denial by the county of its obligation on such bonds; and the action of the county commissioners of such county in adopting a resolution recognizing the obligation of the county on the warrants, and directing the funding of the debt into bonds, is tantamount to a new acknowledgment, and stopped the running of the statute of limitations.</p> <p>8. Action on County Bonds — Burden of Proof.</p> <p>Where the defendant county undertakes to defeat recovery on such warrants on the ground that they were fraudulently issued or were a nudum pactum, the burden of proof rests upon the county to establish such facts. It is not sufficient to defeat a recovery that the evidence should show, in a general way, that the county commissioners were recklessly extravagant, or that they issued warrants for questionable purposes, or even in greater amounts than were honestly owing by the county; but the proof must go further, and identify the particular warrants in suit with such illegal transactions.</p> <p>4. Same — Evidence.</p> <p>Where the defendant county offers In evidence its county record for the purpose of identifying the warrants in suit, with the numbers entered in such record, and it appears on the face thereof that there, have been erasures and substitutions of certain numbers, and additions of other numbers on the outside of the marginal lines of the record, to make out the correspondence of such numbers with those of the warrants in suit, and such tampering with the record is unexplained by the official custodian of such record, and other entries in such record, to eke out the essential identity, are carried forward, out of consecutive order, many hundred pages, to the latter part of the record, not signed by the proper officers of the county as by statute required, such part of the record should be excluded.</p> <p>5. Same — County Warrants.</p> <p>What purports to be a “stub book” of the county, introduced by the defendant for the purpose of identifying by the stubs some of the warrants in suit (such book not being required by the statute to be kept by the county, and it appearing that such book had for a considerable time been in the possession of a person other than the "official custodian of the county records and flies, and by him carried about over the country, and not identified by the proper officer of the county as of the records or files of his ofiice), is incompetent evidence on behalf of the county.</p> <p>6. Same — Defenses.</p> <p>The defense to such warrants that they had been issued in excess of the statutory limitations of the amount of debts for current expenses of the county for the given year, based upon the assessed valuation of the taxable property of the county, is not maintainable as a complete defense to all the warrants in suit, in the face of the agreed statement of facts that in the county, newly organized, there had been no assessment of the property for purposes of taxation anterior to the issue of the warrants. Helé, further, that inasmuch as the law contemplates that in the administration of a territory, like a township, preliminary to its organization into a county, special, extraordinary expenses, distinguished from “current expenses” in the conduct of an organized county, are legally permissible, it devolves upon the defendant county to show affirmatively what particular warrant in suit, was issued on account of such current expenses, and what particular warrant is in excess of the statutory limitation.</p> <p>7. Evidence- -Official Certificates.</p> <p>A certificate made by a person designated as an “enumerator” appointed by the governor of the state to report to him the minimum number of inhabitants and the taxable property in the county, for the information of the governor preparatory to the issue of a proclamation by him designating the given territory as an organized county, is inadmissible in evidence to show the assessed valuation of the taxable property of the county in this suit.</p> <p>8. Same.</p> <p>Equally incompetent for such purpose is a compilation of the taxable property of the county found in the published reports of the state auditor; likewise a certificate of the clerk of the county, found in the state auditor’s office, giving the valuation of property in the county,' claimed to have been furnished when said bonds of the county were presented to the state auditor for registration; there being no statute of the state then in force authorizing such registration or certificate, and no evidence that the original warrant holders or bondholders, or purchasers of the bonds, presented such certificate to the state auditor, or had any knowledge thereof. There can be no presumption that such certificate was presented by either of such persons, in the absence of a statute requiring its presentation.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from and in Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>The appeal in this case is taken from an order dismissing the bill of intervention of the appellant, the First National Bank of Seattle, in a suit, begun by the City Trust, Safe Deposit & Surety Company of Philadelphia against Frank H. Paul, as comptroller of the city of Seattle, to compel the issuance of city warrants to the complainant in the hill for work done upon a contract for a city improvement, which contract had been made between McCauley & Delaney, contractors, and the city of Seattle, and which, upon the abandonment thereof by said contractors, had been completed by the complainant, who was their surety. The intervener denied the right of the surety company to the warrants, and asserteC its own right thereto upon the ground that the contractors had, in consideration of moneys to be advanced by the intervener, assigned to it certain moneys to be earned by them under said contract. The facts of the case, as alleged in the two hills, are these: On or about August 2, 1800, McCauley & Delaney entered into a paving contract with the city of Seattle. They applied to the First National Bank of Seattle for a loan of money to enable them to carry out their contract, and accompanied their application with a promise to provide a reliable surety company bond to the city, and to assign to the bank all moneys, bonds, and warrants that should become due from the city under the contract for the months of August, September, October, and November, 1900. Upon those conditions the bank promised to loan and advance the necessary money. The contract for the street improvement provided that on or before the 20i.h day of each month bonds or warrants should be issued for TO per cent, oí' the contract price of the estimated amount of the work returned by the city engineer as having -been performed during the preceding month. The remaining SO per cent, was to be retained to secure the payment of laborers and material men until SO days after the completion of tlie work. The City Trust, Safe Deposit & Surety Company of Philadelphia became the surety on the bond which was entered into with the city for its own use and for the use of all persons who should perform work or labor in the execution of the contract. On August 2, 1900, the contractors, in writing, assigned to the bank the proceeds of the contract for tlie months of August, September, October, and November. The consideration of the assignment was the sum of $2,000, then advanced, and other moneys thereafter to be advanced, including the money to be paid to procure a surety company’s bond. The bank subsequently, as the work progressed, advanced $5.000, making a total of $7,000, which was intended to be secured by the assignment, no part of which has been repaid. The bank, upon obtaining the assignment, served upon the comptroller, and caused to be filed in his office, a written notice that it held the assignment, and that it would present an order for the warrants to he issued in payment of the amount so assigned and so to become due. The notice was written on an official blank furnished by tlie comptroller for the use of banks and others who advanced money under like circumstances. The city engineer subsequently estimated that the work done on the contract for the months mentioned in the assignment amounted to $12,-G19..14. But in the meantime, early in October, the contractors discontinued the work, and shortly thereafter tlie city called upon the surety company to complete the same, to which it assented. Before it assumed tlie contract of its principals, it had notice of the assignment to the bank. At tlie time when the contractors abandonded their contract there had been earned thereunder $3,924.31, as shown by tbe estimates made by the city engineer. The surety company completed the contract, and paid tlie expenses thereof, and all the unpaid bills incurred by the original contractors. The bank, in its bill of intervention, alleged that when tlie contractors abandoned the contract there was due to certain laborers and material men sums of money, tlie amount of which was unknown to the bank, but which sums would have been liens upon no more than 30 per cent, of said sum of $3,924.31 so earned by the contractors according to the terms of the contract. To the bill of intervention the trust company and the comptroller of tlie city of Seattle each demurred for want of equity. The demurrers were sustained, and the hill of intervention was dismissed.</p>

<p>Appeal from the District Court of the Ünited States for the Southern District of New York.</p> <p>In Admiralty. Suit for collision.</p> <p>The following is the opinion of the district court, by BROWN, District Judge:</p> <p>At about 5:30 p. m. of October 1, 1898, as the three-masted coal barge Samuel E. Spring was going up tbe Lower Bay in tow of the tug Sea King, with the tide about two hours’ flood, she came in collision below the Narrows with the steams]up Buffalo outward hound, some 100 or 200 yards above black buoy No. 9, and was sunk in three or four minutes afterwards. The above libel was filed to recover for the loss of the barge and her cargo.</p> <p>The Spring was the hindmost of two similar barges each about 135 feet long, forming a tandem tow in all about 1,200 feet long. Each barge was on a hawser, which at the Scotland lightship had been shortened to about 70 fathoms. The tug and tow came up through the Swash Channel, rounded within 50 or 100 feet of the bell buoy, as their witnesses say, at the exit of that channel, and took a course, according to her master, of N. x E. ½ E., going through the water at the rate of about 4 to 5 knots. When about one-quarter of a mile above the bell buoy, with the tow directly astern, a signal of one whistle was exchanged between the Sea King and the Buffalo, which was seen coming down about three-fourths of a mile or a mile distant, and a very little on the tug’s port hand at the rate of about nine knots. Soon after, according to the Sea King’s testimony, her wheel was gradually ported until at the time the Buffalo was abreast of her, her heading was N. E. ½ N., and the Buffalo passed her at the distance of 200 or 300 feet. The first barge, the Carleton, passed the Buffalo only a little nearer; but the Buffalo’s stem struck the port quarter of the second barge abreast of the mizzen rigging at an angle of about two or three points, breaking in that part of her side and causing her, as above stated, to sink almost immediately. Each side contends that the vessels would have cleared except for a sheer which each insists was given by the other at about the time when the Buffalo was abreast of the Carleton. The witnesses for the tug testify that the Buifalo at that time gave a rank sheer to the eastward; and several witnesses from the Buffalo say that the Spring, by a hard a-port wheel, swung her stern across the Buffalo’s stem.</p> <p>The greatest draft of the tug and tow was 19⅛ feet. They had sufficient water in any part of the buoyed channel, which was there about 2,000 feet wide. The Buffalo was an iron steamer 400 feet long, and drew '27.1 feet. She came down the usual course of deep draft vessels, in the westerly half of the buoyed channel, a little to the east of the line of the Ghapel Hill range prolonged, which is much to the west of mid channel. When she signaled the Sea King, she was overtaking and a little lapping the stern of the still larger steamer Pretoria, drawing 31½ feet and about 200 feet to the westward of her and going through the water at the rate of about eight knots on a parallel course with the Buifalo. The latter, previously going about nine knots at half speed, after signaling, slowed, but still gained on the Pretoria until her bows came abreast of the Pretoria’s bridge. She stopped her engines before coming abreast of the Sea King, and when abreast of the first barge reversed, but too late to avoid the Spring.</p> <p>As respects the sheer described to each vessel, I am quite satisfied that no such sheer was the proper cause of the collision on either side. There is not the least probability that any sheer to the eastward was made by the Buffalo. It is testified to by the three witnesses on the Sea King alone, who were not in a position for most correct observation on this point; no such sheer was seen by the two witnesses on the Spring, who were in the best position to see it, if made; nor by the pilot of the Pretoria, who was nearest to her at the time; it is denied by all of the Buffalo’s officers; there was no possible motive for such a sheer; and as the Buffalo was reversing at that time and was a right-handed propeller, any change of her heading must have been to the westward rather than to the eastward.</p> <p>As respects the sheer of the Spring’s stern to the westward, her two witnesses admit that her helm was put hard a-port at about the time the Buifalo was abreast of the Carleton, the barge ahead; but this would not have been material had not the barge and the steamer already come into very dangerous proximity. The tug and the Carleton were headed at that time at least two points off to the eastward of the channel course and were therefore pulling the Spring off in that direction, though that effort was soon relaxed, as hereafter explained. The port wheel in directing the stern of the Spring more to port would doubtless tend to throw her stern towards the Buffalo, while her bow would run to starboard; but the Spring’s witnesses say that this set of the stern to port would be offset by the forward motion in turning off two points to the eastward; no other experts testify directly to the contrary; and although I have not sufficient data for making any exact theoretical computation not knowing the rate of rotation of a loaded barge in tow on a hawser under a port wheel, such analogies as I know forbid the conclusion that there would result any material net westward swing of the stern from a port wheel under such circumstances as here exist. The tow’s heading two points to the eastward would itself and independently of any port helm carry her stern more than fifty feet to the eastward with every advance of a length; and this rate would be increased after the heading of the stem was brought more to the eastward by the port helm. This rate of drawing off is greater, I think, than any probable swing towards the Buffalo; so that although I cannot find positively on this point, I think the port wheel by the barge was probably a proper maneuver, in no way contributing to the collision.</p> <p>All the witnesses, moreover, agree that the Carleton was from 150 to 200 feet distant when she passed abreast of the Buffalo, and no swing to that extent could possibly have been caused by a port wheel in advancing only about 100 yards. I have no doubt, therefore, that at least the Carleton’s hawser, like the Carleton herself, was tailing two or three points towards the westward of the Buffalo’s heading, as, indeed, most of the witnesses testify; so that, whether the Spring had already swung in line or not, the Buffalo’s heading, when abreast of the Carleton, was very nearly directly upon the’ Spring. This is the positive testimony of the Spring’s two wit-aesses, and Is the reason they give for their hard a-port wheel. This testimony is further confirmed by one or two passages in the testimony of McDonald, the Buffalo’s pilot.</p> <p>“Q. When you gave the order to stop and hard a-port where was the barge Spring? A. She was about ahead of me then.</p> <p>“Q. What do you mean by ahead of you? A. I could see both sides of the Spring, her stern on one side and her bows on the other; that is, just overlapping.</p> <p>“Q. Was the Spring ahead of your course? A. Yes; her bow was.”</p> <p>Other passages in this witness’ testimony are inconsistent with this situation; and there are so'many inconsistencies in his testimony that I cannot rely much upon it.</p> <p>The master of the Buffalo says that the Spring, before her “sheer,” was heading about on a parallel line with the Buffalo’s heading; but he does not say how much, if any, to the eastward of his course the Spring was at that time. The Buffalo’s witnesses in general say that the Spring, prior to her sheer, had not ported to go off to the eastward, as the tug and Oarleton had done. The pilot says:</p> <p>“Q. Did they keep going to port? A. They kept going to port; that is, the first barge and the towboat; not the second one.</p> <p>“Q. The second one did not go? A. No, he did not go to port.”</p> <p>Upon this testimony of the master and pilot of the Buffalo, the situation would be such that while the Spring was heading more nearly up the channel course than the Garleton and tug were heading, her hawser would be leading about 2 — 3 points to the eastward of the Buffalo’s course to the stern of the Garleton. This lead of the hawser would necessarily result from the Garleton’s previous turn eastward, following the tug; and if the Garleton was but 170 feet distant from the Buffalo when abreast of her, the Spring’s stem, 70 fathoms behind the Garleton, would be directly ahead of the Buffalo and her stern overlapping, as the pilot states. The Buffalo was heading, ho wever, like the Pretoria (S. x W.) at one-quarter of a point to the eastward of the exact range course, which, according to the chart is S. x W. ⅛ W. Her heading may have been in fact a little more than one-quarter of a point to the eastward as immediately after collision it was noticed to be S. ¾ W., i. e., half a point more to the southward, notwithstanding her prior reversing and westward sheer. Some easterly heading from the exact range course was necessary, in order to counteract the westerly set of the-tide. This easterly heading, whatever it was, would increase the angle of the crossing courses, and the consequent rate of approach of the barge and steamer, even if the situation were that contended for by the steamer, as above stated; although, as 1 have said, the opposing witnesses testify that the Spring was tailing directly astern of the Garleton and the tug at the time when she ported.</p> <p>The situation, on either contention, therefore, was in my opinion such as needs no sheer by either vessel to account for the collision. There was a westward set of the tide, which, not being sufficiently counteracted by the Sea King, had gradually set the tug and tow to the westward from the time they left the Swash Channel, two-thirds of a mile below, until the Spring had sagged over to the line of the Buffalo’s course (the latter being necessarily headed a little to the eastward), and the Buffalo did not fully stop before the Sea King had pulled the barge away.</p> <p>1. The Sea King Is in my judgment primarily to blame for this result; because she did not keep her tow in the easterly half of the channel, as required by rule 25. The place of collision in the channel is indeed controverted; but the weight of evidence on that point seems to me clearly against the Sea King. The place of the wreck was exactly marked by triangulation, under the direction of the lighthouse hoard, as having Norton’s Point light bearing N. E. ¾¾ the Elm Tree beacon, N. W. ⅛ N.; and Old Orchard Shoal light W, x S. | S. These bearings were sworn to by Capt. Matthews, who took them. I have carefully compared them with the chart ‘and find that they show the wreck to have been very nearly as marked on the Buffalo’s Exhibit A, viz., about'400 feet east of the line connecting black buoy No. 9 with the bell buoy next above, on the west bank. The government chart with a star added upon it, marking the place of the wreck, is not verified by any-witness; and as there are no other data for placing the star than the triangulation above stated, the star can only be regarded as designed to conform to that. On trial, however, I find that the two northerly bearings from the star are erroneous by from one-eiglith to three-sixteenths of a point, making the star too much to the eastward by about 400 feet. The libelant’s witness Beebe, moreover, places the wreck only 150 feet easterly from the line of the Chapel Hill range course; whereas the star is from 500 to 600 feet easterly of it. That range course prolonged runs about 350 feet east of the black buoys on the westerly side of the channel; so that Beebe’s location of the wreck agrees very nearly with the results of the triangulation, making it only 400 to 500 feet easterly from the line of the black buoys on the westerly side of the channel. In that position vessels of 29 feet draft could go west of it in the flood tide, as Beebe states.</p> <p>The collision itself must have been but very little to the eastward of the wreck. The witnesses who speak of it say the Spring sank very near the place of collision, and within three or four minutes afterwards. It was directly astern of the Buffalo, as she drew to the southward. The Spring at collision was heading nearly N. E. and was going about 4 or 5 knots. Her stern was doubtless turned somewhat to the southward by the collision; but she could not at first have got headed much to the westward, inasmuch as she passed for 400 feet along the easterly side of the Buffalo, which must have been fully stopped before the Spring reached her stern; and when sunk the wreck headed only 1⅜ points west of north. An allowance of a change of 200 feet to the westward between the place of collision and the place of the wreck, would be considerably more than anything in the testimony would warrant; so that I cannot place the collision over 700 feet at most (agreeing with Wall’s estimate) from the line of the black buoys on the westerly side of the channel. The whole width of the 24 feet channel from the westerly to the easterly line is about 2,000 feet. The Spring was, therefore, at least 250 or 300 feet to the westward of the extreme limit of her rightful water under rule 25.</p> <p>There were no circumstances to excuse the Sea King from keeping the tow on the right-hand side of mid channel. The greatest draft of the tug and tow was 19½ feet. They had about 1,000 feet in width in the easterly half of the buoyed channel way of 24 feet depth, and a considerable additional space of available water to the eastward of over 19 feet. There were no other vessels in the way. The only explanation that can be surmised of the Sea King’s course is, as above observed, that sufficient account was not taken of the westward set of the tide, proper observation employed, nor timely means to avert, the westward drift. Her witnesses say that they rounded the red bell buoy at the upper end of the Swash Channel within 50 or 100 feet of it; and if so, their westward drift was all the more noticeable in getting 1,000 feet to the westward and beyond mid channel in going about two-thirds of a mile beyond that buoy. The course which the master says he took on rounding the buoy was N. i E. % E. This was but a quarter of a p,oint east of the direct course up the channel. That was perhaps enough for a tow or vessel going 8 or 10 knots through the water, but not enough for one going but 4 to 5 knots.</p> <p>Tne master says that on signaling, he ported two points; but the wheels-man on cross-examination says that porting was not commenced until the Buffalo was within one-fourth of a mile, and was so gradually done that the tug was not headed two points to the eastward until the Buffalo was abreast of the tug; and that after she had passed the tug, he hauled again to his former course, though the master, who at that time was aft, denies this. However it occurred, this sagging to the westward was th'e fault of the Sea King, as she had ample means to prevent .it.</p> <p>2. At the porting of the Spring the Buffalo was no doubt moving at the rate of 3 or 4 knots; both were within 200 or 300 feet of the point of collision, which must have occurred within one-half minute after. The Buffalo appeared to be heading straight for the Spring. The situation had become critical; and if porting was an error, which I doubt for the reasons above stated," it was not a legal fault. The blame is in bringing about that situu-tlon. Nor do I see how porting earlier, which must have caused similar changes of position in the Spring, whatever these changes were, could have made any material difference to the Buffalo. X hold the Spring, therefore, not to blame.</p> <p>3. The chief embarrassment in the case X find, as usual, as respects the alleged fault of the other vessel. All agree that fault in vessel A. does not justify vessel B. though she has the right of way, in running into A. when B. might avoid her by reasonable prudence and skill. The difficulty is in the application of this principle. Here the Buffalo was in her proper part of the channel. She had the right of way there, and she had the right to expect that the Sea King would keep her tow in her own half of the water. The Spring was in effect negligently allowed to drift under the Buffalo’s bows, while the Buffalo did not in fact stop, as she might doubtless have done, in time to avoid the Spring, which had sagged in her way. It is a question of the Buffalo’s notice of danger; and of what she had a reasonable right to expect that the Sea King could and would do to keep the Spring away. If there was no reasonable ground of apprehension, or if she had the right to expect that the Sea King would draw the tow away, up to the time when collision could no longer be avoided by the Buffalo, then she is not to blame. The Mary Powell, 34 O. C. A. 421, 92 Fed. 408.</p> <p>There is no doubt that the Buffalo had notice of whatever danger there was, up to the time she came abreast of the tug. The tow had been plainly sagging to the westward. Instead of keeping its distance and gradually broadening off as it approached, the tow, as the Buffalo’s pilot says, “kept all the time closing in on us, until the Spring was about ahead.” The Buffalo had added to the danger by running up partly abreast of the Pretoria, so that she could not turn to the right or left except for a few feet. The Buffalo had, however, previously slowed for one or two minutes, turned towards the Pretoria as near as was safe, and then stopped her engines, so that the Pretoria was slowly drawing past her. The Sea King, a tug of ample power, was seen to be turning more to the eastward, and would naturally soon pull the Spring out of the way. In that situation it was the Buffalo’s duty to give the Sea King, reasonable time to do so by reversing as soon as it was apparently necessary. Contrary to my first impressions, I must find upon the evidence that the Buffalo did so.</p> <p>All agree that the tug and first barge passed the Buffalo at a reasonable and safe distance, estimated variously at from 200 to 400 feet, giving rise to no apprehension whatever. All also agree that the distance of the first barge on passing was about the same as that of the tug, or only a little nearer. From the latter fact, which is nowhere disputed, it necessarily follows, that while the Buffalo was moving from abreast of the tug to abreast of the first barge, tlie latter was pulled over to the eastward nearly as much as her previous tailing to the westward; and as the Buffalo was moving forwards, this could only have been done through a more easterly sheer of the tug about that time, which agrees with the wheelsman’s testimony; so that the line of the whole tug and tow was probably somewhat convex on the side of tlio Buffalo. The evidence on this point is not as explicit or consistent as could have been desired.</p> <p>But if the tug in the interval between her and the first barge almost wholly overcame that barge’s westerly tailing towards the Buffalo by her hauling to the eastward, so that the first barge was 150 or 200 feet distant on passing, the Buffalo had a right to expect that the same easterly pull would be continued by the tug, and that the Spring, which was astern of the Carleton by a similar interval, would pass at nearly the same distance as the Carleton. The time available for hauling the Spring off to the eastward was greater, since the Buffalo’s forward motion, with her engines stopped, was constantly diminishing; and this additional time was in fact considerably further increased by the Buffalo’s reversal when abreast of the Carleton, in consequence, it is said, of seeing the Spring port her wheel. Why the Spring was not hauled away as the Carleton had been, is explained by the wheels-man of the tug, who testifies that while the master was aft he starboarded, and resumed the former course of N. x E. ½ E. after passing the Buffalo and before collision, without tbe master’s knowledge.</p> <p>. “Q. How long did you carry the wheel aport, until you came back to the old course? A. Till she [the Buffalo] had just passed us. Her stem was abreast of us, thereabouts; then we starboarded, and put her on her course again * * * her old course, N. x E. ½ E. * * * The captain was aft then. He did not tell me. I knew enough for that myself. We were just about on that course at the time the collision occurred * * * steadied before collision.”</p> <p>Thus the tug's pull to the eastward was prematurely stopped, and the Spring’s stern, which was “overlapping” to the starboard side of the Buffalo when 500 feet away, was not hauled clear, as it doubtless would have been had the tug’s course two points to the eastward been continued as it ought to have been. The Buffalo could not have foreseen or anticipated this last false maneuver of the tug, and the Buffalo in no way induced this false maneuver. But for that, the Buffalo’s measures would have been sufficient to avoid the Spring, and the whole blame must, therefore, rest upon the Sea King.</p> <p>Decree accordingly.</p>

<p>1. Railroads — Removal of Trespassers — Personal Injuries.</p> <p>Plaintiff boarded a caboose on defendant’s freight train to make inquiries from the conductor concerning his wife, having expected her on that train, and while he was still in the caboose, and waiting for the conductor, the train started. When the conductor came, he demanded that plaintiff pay his fare or get off, but refused to stop the train. Plaintiff stepped out onto the platform, and the conductor locked the door, leaving him outside, and he was thrown from the train by the sudden lurching of the caboose, after having attempted to re-enter. Relé wrongful conduct on the part of the conductor, for which the company was liable if it was the proximate cause of the injury.</p> <p>2. Same — Proximate Cause of Injury — Question for Jury.</p> <p>The question whether the wrongful conduct of the conductor was the proximate cause of the injury was for the jury.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>Master and Servant — Negligence of Fellow Servant — Laws of Mexico.</p> <p>The common-law doctrine as to the nonliability of employers to an employé for the negligence' of a fellow servant is not in force in the republic of Mexico; and under the laws of that country a railroad company is liable for all faults or accidents which may occur through the negligence, imprudence, or want of capacity of its employes, whether the person injured be an employs or a stranger.</p>

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

<p>Application by Josie Celestine for a writ of habeas corpus. On return challenging the jurisdiction of the court.</p>

<p>Damagrs — Bueacií: 01? Contract — Stipulate» Damages in Coal Leas®.</p> <p>A coal lease provided that the lessee should mine not less than a stated number of tons per year during the term, and should pay royalty on such number of tons, whether mined or not. Held, that such provision was one for liquidated damages in case of nonperformance by the lessee in whole or in part, and not for a penalty, and that, where he abandoned the lease before the end of the term without good cause, he was liable for damages in the sum so stipulated, without regard to the value to the lessor of the coal remaining in place.</p>

<p>1. Taxation — Assessment—Corporations— Valuation of Capital Stock— Method of Ascertainment.</p> <p>The value of the capital stock of a corporation and its franchise for the purpose of taxation is determined by ascertaining the true net earnings, which is the gross earnings reduced by the annual expenditures, increased debts, and the current depreciation in its tangible property, and by capitalizing such net earnings at the ratio of 6 per cent., and equalized to the assessment of the other property of the state.</p> <p>2. Same — State Board of Equalization — Assessment of Capital Stock— Equalization.</p> <p>Const. Hi. art. 9, § 1, which provides that the value of the taxable property shall be ascertained by persons elected or appointed as directed by law, p,nd which confers upon tlio general assembly the power to tax corporations owning or using franchises, with the limita tion that the tax shall be uniform as to tbe class on which it operates; and Hurd's Rev. St. 1899, c. 120, §§ S, 4, which require that real property shall be valued at Its fair cash value, and that personalty, except as otherwise provided, shall be valued at its fair cash value, and which direct that the state board of equalization shall determine the fair cash value of the capital stock of Corporations, — establish uniformity in taxation, and make the state board of equalization the original body to assess corporate capital stock, as well as the body which must equalize the assessment of all property, including such capital stock.</p> <p>8. Same — Reassessment for 1800 — Result of Fictitious Judgment — Wrong Method — Rights of Parties Assessed.</p> <p>The Illinois state board of equalization, pursuant to the mandate of the state courts, reassessed the capital stock of certain corporations and their franchises for the year 1C00. Such reassessments were from BO to 47 per cent, higher than the assessments for 1901. The board endeavored to approximate the aggregate indebtedness of the corporations and their capital stock as measured by the stock market quotations for April 1, 1900. The reassessments, if made upon the basis of a capitalization of the net earnings by 0 per cent., would approximate the assessments for the year 3901. Helé, that the reassessments did not express the result of the board’s independent quasi judicial judgment, but were in fact fictitious, involving mistake, fraud, or coercion, threatening to deprive the corporations of their property without due process of law and of the equal protection of the law, entitling such corporations to equitable relief.</p> <p>4. Same — Equitable Relief — Injunction.</p> <p>Equity will enjoin the collection of the taxes levied on such assessments, for the constitutional guaranties that one shall not be deprived of his property without due process of law, and shall be entitled to the equal protection of the laws, does not merely authorize a suit for the recovery of the payment of the illegal taxes.</p> <p>& Same — Condition of Granting Injunction — Payment of Taxes Levied on a Proper Assessment.</p> <p>Since the issuance of an injunction is a matter of discretion and right, the court will require that the corporations shall pay the taxes for the year 1900 on the basis of their net earnings capitalized at a ratio of 0 per cent and equalized by the reduction of 30 per cent., and then divided by 5, as a condition precedent for the granting of the injunction restraining the collection of the taxes levied on the state board’s reassessments for the year 1900.</p>

<p>In Equity. Suit to subject assets of the estate of a deceased stockholder of an insolvent Minnesota corporation, in the hands of a legatee, to an assessment made against such stockholder under the statute of Minnesota.</p>

<p>At Law. Action to charge defendant with liability as a disbursing officer of the army.</p>

<p>In Equity. On final hearing on bill, answer, and replication.</p>

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

In Bankruptcy. On certificate of referee and exceptions to referee’s decision allowing claim of Ervin, Page & Co., Incorporated.

In Bankruptcy. On application of Jean F. Smith, assignee of the bankrupt under the state insolvency laws, for allowance for compensation, attorney’s fees, and expenses.

<p>In Equity. On motion to abate attachment.</p>

<p>UNFAIR Competition-Use of Trade-Names — "Swift. ”</p> <p>The word “Swift,” adopted and long used by Swift & Co., meat packers, etc., as a name for the various products of the company, has become known to the public as denoting the origin of such products; and the company is entitled to an injunction, on the ground of unfair competition, to restrain a manufacturer of like products from designating them by such name, where there is no apparent reason or appropriateness in such use, but it appears, rather, to have been adopted for the purpose of deceiving purchasers.1</p>

<p>1. Bankküpts — Concealed Assets — Imprisonment.</p> <p>A bankrupt cannot be imprisoned Indefinitely on the ground that he has concealed assets, especially when it is not known certainly that he has the assets which he is called on to surrender, and where he has been kept in jail for something over a month he ought not to be confined longer.</p> <p>2. Same — Exemptions.</p> <p>A bankrupt who has made way with the greater part of his assets, and gotten them out of the jurisdiction, cannot ask to have an exemption set apart to him out of what is in the court’s possession.</p>

In Equity. Suit for infringement of letters patent No. 403,939, for a combined cabinet and cutter’s size ticket, issued to John Kelle’-May 28, 1889. On final hearing.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>The appellant, F. W. Coler, appeals from a decree of the circuit court dismissing his bill of intervention after the court had sustained a demurrer thereto and he had refused to further plead. The appellant was a judgment creditor of the Pacific Northwest Packing Company, a corporation, and by his hill of intervention he sought to annul and set aside a mortgage which had been executed by the corporation to Henry F. Allen, and which was in the progress of foreclosure at the suit of said Allen. The mortgage had been executed on May 11, 1900, to secure the sum of $25.731 and advances to be made by the mortgagee not to exceed $10,000. In the bill brought to foreclose the mortgage it was alleged that after the execution of the mortgage, and in the months of May and June, 1900, the mortgagee had made advances under said agreement to said corporation in excess of said sum of $10,000. The complainant in the foreclosure sought to enforce his mortgage lien to the full amount of the said sum so owing on May 11, 1900, and the subsequent advances. From the pleadings it appears that the mortgagor was engaged in the business of catching and canning salmon, and was possessed of various kinds of property, which it used in connection with its business. All of its property was included in the mortgage to Allen, and in its answer to the bill of complaint in the foreclosure suit it alleged that its indebtedness to the complainant therein arose out of an arrangement which he had with the complainant by virtue of which the latter was to advance and did advance divers sums of money from time to time to the corporation, and was to receive, and did receive, in return the total output of the corporation’s cannery for his> reimbursement. In the foreclosure suit a receiver was appointed, and all the mortgaged property passed into his possession. The appellant in his bill of intervention alleged that by reason of the receivership all the property of his judgment debtor had been placed beyond the reach of execution, and he prayed the court to set aside the mortgage, and permit him to share equally with the mortgagee in the assets of the corporation. He further alleged in his bill that he had “no knowledge or information concerning the averments” of the mortgagee’s bill relating to the consideration of the mortgage or the advances made or to be made thereunder, and he made denial of the legal conclusion that the mortgage was valid. This matter so set forth in the intervener’s bill was clearly insufficient to impeach the mortgage or to raise an issue as to any of the facts pleaded in the mortgagee’s bill. The appellant Impliedly admits that such is the case, for he rests his cause upon Ihe appeal solely upon the ground that he has shown that he is entitled to equitable relief upon his allegation that the corporation was insolvent at all times in the month of May, 1900, and at the time of the giving of the mortgage to the complainant Allen, and that its liabilities grossly exceeded Its assets, and “that at the time of giving the mortgage the defendant the Pacific Northwest Packing Company had reached a point where its debts were greater than its property, where it could not pay in the ordinary course, where its business was no longer profitable, and when it ought to be wound up and its assets distributed.” The allegations of fact in this charge against the validity of the mortgage are that the corporation was insolvent; that it had reached a point where it could not pay in the ordinary course, and where its business was no longer profitable. The remainder of the allegation states the remedy which the pleader averred was appropriate to its condition.</p>

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

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

This action was brought by M. <3. Cromer, the defendant in error, against Stewart Dennee and John S. Hammer, the plaintiffs in error, before the mayor of Ardmore, in the Indian Territory, on a promissory note for 8150.

<p>1. Surety — Liability.</p> <p>A surety’s liability does not ordinarily extend beyond the penal suxn of the bond, — as, for instance, to costs and interest, — unless he has in some way resisted or obstructed the recovery of the claim against him.</p> <p>2. Same — Contractor’s Bond — Claims Acquired by Third Party Contracting to Indemnify Surety.</p> <p>In computing the pro rata to be paid creditors of a defaulting contractor by the surety on his bond (the penalty of the bond being insufli-cient to satisfy the claims in full), claims which have been acquired by a third party, who has contracted to indemnify the surety, should be considered.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of Ohio.</p> <p>This is an appeal from a judgment disallowing a claim filed by the appellant against the estate of a bankrupt firm doing business as George G. Moler' & Son. From the facts certified by the referee to the court below, it appears: (1) That the appellant constructed a store service apparatus in the store of the bankrupts under an agreement by which the bankrupts agreed to use same for a term of five years, and to pay “an annual rental in equal quarter-yearly installments, in advance, upon the first days of March, June, September, and December in each and every year during the term of this lease, or any extension hereof,” at the rate of $20 for each station. There being nine stations constructed, the yearly rental was $180, and the quarterly installment payable in advance was $45. It was further provided that, “if any installment of said rental shall remain unpaid for Uxty days after it becomes due, the entire rental to the end of the lease shall become at once due and payable.” It was further provided that the lessee should not, without the consent of the lessor, make alterations, or remove the apparatus, or use elsewhere than in said store, and that the whole mechanism should continue the sole and exclusive property of the lessor, the lessee “not to sell, assign, or underlet” said system, and that at the end of the lease same should be delivered up to the lessor in good order and condition. The lessor, on its part, agreed, at its own expense, “to supply all parts necessary to keep said Gable cash-carrier system in proper repair, excepting, also, when there is rental on said system overdue and unpaid.” Tlie rental agreement concluded with the provision that the contract was subject to the condition “that in ease of a breach of any of the covenants or agreements to be observed on the part of the lessee, or attached by process of law, by proceedings in bankruptcy, or insolvency, or otherwise, the lessor may, while such default or neglect continues, or at any time after such attaching or taking by process of law, without any notice or demand, enter upon the said store premises, or wherever said system may be, and take possession of said system, or any part thereof, and thereby determine all right and interest the said lessee may have in said system; and may remove the same, forcibly, if necessary, -without let or hindrance from the lessee. In case of removal of the system, the lessor shall not be required to put the store of the lessee in its former condition. No removal of said system made by the lessor during the term of this lease, or any extension hereof, on account of any determination of the lessee’s tenancy, or on account of any default by the lessee, shall constitute a surrender of this lease.” (2) On November 30, 1000, the day before an installment of rent fell due, a petition in involuntary bankruptcy was filed against the lessees; and on December G, 1900, an adjudication of bankruptcy was entered. All installments of rent accruing prior to December 1, 1900, had been duly paid, and no default existed at the date of the filing of the petition in bankruptcy, on November 30, 1900. The installment which became due under the lease on December 1, 1900, was not paid, except in part, as hereinafter shown. The appellant filed a claim for the entire remaining term of tire lease, claiming that ■ the failure to pay the installment accruing December 1, 1900, precipitated the maturity of the entire rental to the end of the lease, in 1905. The claim filed is therefore for $773.50, less a credit of $12 for rent collected by the lessor for a part of the month of December. The referee certified that the lessors had taken possession of the store service apparatus, and had received rent from some one other than the lessees from December 1, 1900, to December 24, 1.900, and had credited same on the account rendered. The referee disallowed the claim upon the ground that it was not a fixed liability, absolutely owing, at the time of the filing of the petition against the bankrupt. The district judge affirmed this judgment, without an opinion.</p>

On the 31st day of July, 18!)9, F. M. Overlees executed and delivered to IT. B. McAllister & Có. his negotiable promissory note for $2.íít¡4.í)8. payable at their office at Kansas City Stock Yards, Kansas City, Kan., 1Ú months after date. For a valuable consideration McAllister & Co. indorsed and delivered the note before its maturity to the Bank of Washington, the defendant in error and plaintiff below.

Boyd & Baker, the appellants, were adjudicated involuntary bankrupts by the United States district court for the Northern district of Mississippi, from which judgment they prosecute this appeal. The petition seeks to charge them with the first and second acts of bankruptcy, as laid down in paragraph a, § 3, Bankr. Act 1898.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the District of Washington, in Bankruptcy.</p>

<p>In Equity. Suit for infringement of letters patent No. 662,656, granted to R. F. R. Pynchon November 27, 1900, for a trousers hanger. On final hearing.</p>

In Equity. Suit for the conjoint infringement of letters patent No. 491,113 for a bottle stopper, issued to Karl Hutter February 7, 1S93, and design patent No. 25,435 for a design for a bottle stopper issued to the same patentee April 28, 1896. On final hearing.

<p>In Equity. On motion to approve special master’s account.</p>

<p>1. Attachment — Dissolution by Appointment of Receiver — Connecticut Statute.</p> <p>The provision of the Connecticut statute (Pub. Acts 1895. p. 491) that attachments shall be dissolved by the appointment of a receiver for a corporation within 60 days is intended to apply only to general receivers of all the property of the corporation situated in the state for the purpose of protecting the creditors of the corporation generally, and the appointment in a suit to foreclose a mortgage given by a corporation of a receiver for the mortgaged property to protect the rights of the mortgagee therein does not have the effect of dissolving a prior attachment under such provisions.</p> <p>2, Receiver in Foreclosure Suit — Construction of Order Appointing.</p> <p>An order appointing a receiver in a suit to foreclose a mortgage, although broad in its terms, and purporting to extend to all the property of the mortgagor which was claimed to be covered thereby, should not be construed to cover property not in fact included in the mortgage, so as to affect rights which were paramount to the mortgage.</p> <p>8. Attachment — Surrender of Property to Receiver under Stipulation— Effect.</p> <p>Where an attaching creditor surrenders the attached property to a receiver appointed in a suit against the debtor, who claims the same under a stipulation that such surrender shall be without prejudice to his legal rights, which is approved by the court, it does not operate to terminate tie attachment, hut the possession of the receiver is his possession, as against all other claimants.</p> <p>4. Same — Failure to Levy Execution.</p> <p>Under the Connecticut statute (Gen. St. 1887, § 922) providing that an attaching creditor shall lose his rights if he fails to take out and levy an execution within 60 days after recovery of judgment unless such issue or levy is prevented or stayed by some legal proceeding, an attachment creditor who, prior to'judgment, has surrendered the attached property to a receiver, under a stipulation and order of court that it should be without prejudice to his rights, and that in case the property should be sold by the receiver his rights should be transferred to the proceeds, does not lose his rights by failing to take out execution on his judgment within 60 days, since the possession of the receiver effectually prevented a levy.</p> <p>6. Same — Surrender of Property to Receiver — Protection of Rights under Stipulation.</p> <p>Where an attachment creditor, to avoid a conflict of authority, surrenders the property to a receiver of a federal court claiming adversely, under an order of court providing that his rights shall not thereby be prejudiced, the court will see that the provision of such order is carried out in good faith, and that he is paid from the property or its proceeds ta case his priority of lien is established.</p>

At Raw. Action under interstate commerce act to recover damages for discrimination in rates. On demurrer to amended petition.

<p>Admiralty — Action for Penalty Under Harter Act — Parties Entitled to Sue — Test Case.</p> <p>An action cannot be maintained to recover the penalty for a violation of Act Cong. Feb. 13, 1S93, known as the “Harter Act,” requiring the owner, master, or agents of any vessel transporting merchandise from or between ports of the United States and foreign ports to issue to shippers bills of lading or shipping documents, by a party put forward by an organization of lumber exporters for the mere purpose of making a test case, and not himself having any interest in the lumber shipped, not even being in the lumber business, where it further appeared that the lumber shipped was properly delivered at the destination, and that no one was injured.</p>

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

<p>Bankruptcy — Costs and Fees.</p> <p>Bankr. Act, § 40, subd. “a,” provides that “referees shall receive as full compensation for their services, * * * a fee of ten dollars, * * * and from estates which have been administered before them” certain commissions. General Orders in Bankruptcy, No. 35, pt. 2, declares that the compensation of referees prescribed by the act shall be in full “for all services performed by them * * * but shall not include expenses * * * necessarily incurred in the performance of their duties.” EeW, that the expenses incurred in the publication of notice of application for discharge, and for stationery, wore chargeable against the bankrupt, but that the referee could not charge for his own services In making copies of the petition for discharge.</p>

<p>In Equity. Suit for reformation of release.</p> <p>The defendant. Squire D. Green, brought an action against the Chicago & Alton Railroad Company in the state court to recover damages for personal injuries. Tile cause was removed into this court, whereupon the complainant, the Chicago & Alton Railway Company, presented its bill in equity, in the nature of a cross action, against said Squire L. Green, alleging that the defendant at the time of the injury was an employs of the Chicago <& Alton Railway Company, and that any cause of action which he had was against the latter company. The bill further alleges that, after said injury, said defendant, — for a valuable consideration to him paid by the complainant shortly after the injury, — in writing, executed a release to said company for any and all liability resulting therefrom; that by the mutual mistake of the parties the said release was executed to the Chicago & Alton Railroad Company, instead of to the complainant, the Chicago & Alton Railway Company, and that, as a further consideration for the execution of said release, the complainant assumed the payment of the services of the physician and surgeon who attended upon the defendant; and that this consideration, through a misapprehension of the parties as to the necessity of incorporating it into the release, was omitted therefrom. The bill prays for a reformation of the said release to make it conform to the facts of the case. The further facts sufficiently appear in the following opinion of the court:</p>

<p>1. Mandamus — Plea in Abatement.</p> <p>The pendency of another mandamus may he pleaded in abatement of a second mandamus proceeding instituted in the same jurisdiction, wherein the parties and the questions involved are the same.1</p> <p>2. Same — Identity of Controversy.</p> <p>Where a final judgment has been rendered in a former proceeding, but an appeal bas been taken, and such judgment suspended by a super-sedeas bond, and the pendency of such appeal is pleaded in abatement to a second mandamus proceeding, upon consideration of such plea the court is not confined to the pleadings in the former proceeding for the purpose of determining what the real issue therein was, but may look to the pleadings, the evidence, and the opinion of the court filed in support of, and as a part of, the judgment appealed from.</p> <p>8. Same — Interstate Commerce.</p> <p>O. instituted mandamus proceedings against the Norfolk & Western Railway Company et al. under an act of congress of March 2, 1889, alleging unjust discrimination against him, and in favor of O., C. & B. in the shipment of coal in interstate trade from the Pocahontas coal field, and procured an alternative writ commanding the railway company to furnish cars for the shipment of a specific cargo of coal. The railway company denied the allegations of the alternative writ, including the charge of unjust discrimination; and, by written stipulation, matters of law and fact were tried by the court. At the trial the railway company showed by the evidence that it had a system of car distribution, and that it furnished cars, under such system, uniformly to all shippers alike. The district judge found, as a matter of fact, that the system existed, and that it had been uniformly applied, and held, as matter of law, that such system was reasonable and lawful, and refused the peremptory, and discharged the alternative, writ of mandamus. The judge so finding filed a written opinion, as a part of the record, in support of his judgment. 0. took a writ of error to the circuit court of appeals, and executed a supersedeas bond. Subsequently, the writ, of error still pending, 0. instituted another mandamus proceeding against the same respondents, alleging the same unjust discrimination, charging the same to be the result of the railway company’s arbitrary and unlawful system of car distribution, and praying that a specific number of cars be furnished to him daily. The railway' company pleaded the pendency of the first proceeding in abatement of the second. Held!, upon an inspection of the record upon a replication of nul tiel record, that the parties and subject-matter involved in the two proceedings were the same, and that the second should be abated.</p> <p>(Syllabus by the Court.)</p>

<p>1. Equity Jurisdiction — Contracts between Street Railroad Company and City.</p> <p>Before a street railroad company can complain, in a court of equity, of the violation by a city of its contract rights, it must show that it has a contract which is free from fraud and enforceable at law, and one which is fair and reasonable in all its parts, and within the power of the city lawfully to enter into. If it is unfair, unreasonable, or against good conscience, a court of equity is justified in refusing to enforce it, and in leaving the complainant to its remedy at law. .</p> <p>2. Street Railroads — Authority to Use Streets — Law op Indiana.</p> <p>Under the law of Indiana, by which the fee of streets in cities is in the abutting lot owners, and exclusive authority, jurisdiction, and power over the streets of a city are vested by statute in the common council, such authority is held in trust for the benefit not alone of the city, but for that of all the people of the state, and extends only to the regulation of the use of streets for ordinary public purposes. The authority to lay tracks and operate a street railroad thereon can only be conferred by statute, in express words, or by language from which such power must be necessarily implied.</p> <p>8. Same — Powers op City Council.</p> <p>By Act Ind. Sept. 7, 1861 (2 Bums’ Rev. St. 1894, § 5450 et seq.), authority was conferred to organize street railroad companies, and to construct and operate street railroads, but it is provided that “nothing in this act contained shall be so construed as to take away from the common councils of' incorporated cities the exclusive powers now exercised over the streets * * * within the corporate limits of such cities; and all street railroad companies * * * shall first obtain the consent of such common councils to the location, survey and construction of any street railroad through or across the public streets of any city, before the construction of the same shall be commenced.” By Act March 3, 1891 (2 Burns’ Rev. St. 1S94, § 5473), horse railroads were authorized to use electricity for motive power; but the same reservation as to the power of city councils was made, and it was provided that companies desiring to change to electricity should first obtain the consent of the common councils, which might give such consent “upon such terms and; conditions as they may see fit to impose.” Held, that neither of such acts conferred on the common council of a city, either expressly or by necessary implication, the power to grant to a street railroad company either an exclusive or a perpetual use of its streets for railway purposes.</p> <p>4. Same — Ultra Vires Guaxt.</p> <p>The common council of a city in Indiana, vested by statute with exclusive authority, jurisdiction, and power over the streets of the city, cannot alienage such power by a grant to a street railroad company in perpetuity of the right to build and operate railroads through such streets as it may from time to time elect to use and occupy.</p> <p>5. Same — Contract Created by Ordinance.</p> <p>Such a grant, even if authorized and valid, amounts merely to an offer, which creates no contract as to a particular street until accepted and acted upon; and until such time the offer may he withdrawn by a repealing ordinance.</p> <p>6. Same-Necessity of Consent of City Council to Use of Street — Indiana Statute.</p> <p>Under the statute of Indiana (2 Burns’ Rev. St. 1894, § 5464) which requires ail street railroad companies to first obtain the consent of the common council “to the location, survey, and construction of any street railroad through or across the public streets of any city,” an ordinance giving general consent to a company to occupy and use any or all of the streets of the city for railway purposes, at its election, does not obviate the necessity of a specific consent to the location, survey, and construction of a road upon any particular street selected; and the company acquires no vested right to the use of such street until such consent has been given.</p>

In Bankruptcy. On review of referee's decision denying the bankrupt’s claim to exemptions. The following is the report of the referee, Clifford M. Walker: B. Boorstin, a merchant of Covington, Ga., was on December 23, 1901, adjudicated bankrupt on his own petition. He scheduled debts aggregating $8,151.96. His assets he schedules as a stock of goods worth $2,000, and open accounts worth $500. The first meeting of creditors was held January 6, 1892, and a trustee elected.

<p>Preliminary Injunction — Grounds—Questions Considered on Application FOR.</p> <p>Where it appears on an application for a preliminary injunction that . doubtful questions, both of fact and law, are involved in the case, the court will not enter upon the merits, but will grant the injunction, if necessary to preserve the status of tlie parties until the final hearing.</p>

<p>FEDERAL Courts — Jurisdiction—Residence of Parties — Waiver of Objections.</p> <p>Act March 3, 1887 (24 Stat. 552), as corrected by Act Aug. 13, 1888 (25 Stat. 433), providing that “no civil suit shall be brought” before either a district or circuit court of the United States “against any person by any original process or proceeding in any other distinct than that whereof he is an inhabitant, but where jurisdiction is founded only on the fact that the action is between citizens of different states suit shall be brought only in the district of the residence of either the plaintiff or defendant,” confers a mere personal privilege or exemption on the defendant, which he waives by a general appearance to the suit.</p>

<p>1. Deportation of Chinese — Findings of Commissioner — Review.</p> <p>A finding of a United States commissioner that a Chinese person is not lawfully in the United States will not be disturbed unless clearly against the weight of evidence.</p> <p>2. Same — Who Entitled to Remain in United States.</p> <p>A person born in the United States, of alien Chinese parents, permanently domiciled here, is a citizen of the United States, and cannot be excluded therefrom or denied the right of entry. 1</p> <p>3. Same — Evidence—Sufficiency.</p> <p>The father of a deported Chinaman testified that he had been in the United States 30 years; was married in San Francisco and had one child, the one in question; that at the age of 12 the boy’s mother returned to Ohina, the boy remaining and accompanying his father to New York, where he lived with his father three years, and then obtained employment with a third party, working for him five years; that shortly thereafter the boy returned to China to visit his mother, staying three years. lie testified that he had received letters from the son while in China, but could not produce any of them. The son testified that he was born in San Francisco; that he visited his mother in China in 1808, remaining until 1901, when he returned, landing in Vancouver, and paying the head tax, and coming into the United States from Canada. No other testimony was offered in his behalf. Held, that the commissioner’s order deporting the son would not be disturbed.</p>

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

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

<p>Appeal from the District Court of the United States for the District of Connecticut.</p> <p>This cause comes here upon appeal from a decree’ of the district court, district of Connecticut (107 Fed. 744), in favor of libelant for $1,947, with interest and costs, out of the proceeds of sale of a dredge and four scows.</p>

. This cause comes here upon a writ of error by the plaintiff below to review a judgment of the circuit court, Eastern district of New York, entered upon direction of a verdict in favor of defendant below. The facts rpyear in the opinion.

This is an action to recover from the defendant in error the value of timber cut by it upon the public lands of the United States in Idaho for use in the construction of the railroad of the defendant in error. After the filing of complaint and answer, the ease was submitted to the lower court upon an agreed statement of facts, substantially as follows: The plaintiff in error was the owner and in possession of the lands described in the complaint.

Petition for Revision of' Proceedings of the District Court of the United States for the Southern District of Mississippi. It appears from the record that several creditors of A. B. Wolf, holding claims for an amount sufficient, filed a petition in the district court to have him adjudged a bankrupt.

By an action commenced in the circuit court of the United States for the Northern district of Texas, Mrs. F. S. Smith, for herself and as next friend and guardian of her two minor children, C. F. and B. S. Smith, sued the Texas & Pacific Railway Company for damages on account of the death of F. S. Smith, her deceased husband, and the father of the minor children.

This was an action brought in a state court of Ohio by Mahoney, the defendant in error, against tlie above-named plaintiffs in error, to recover damages for a personal injury sustained by him from the negligence of the above-named receivers while they were operating the railroad of the Central Ohio Railroad Company under an appointment made by the circuit court of tlie United States for the Southern district of Ohio, in a case therein pending, in which the Mercantile Trust…

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

The plaintiff (defendant in error here) was employed as a brakeman by the defendant (plaintiff in error). On the 9th or 10th of February, 1901, while so engaged in the service of the defendant company, the plaintiff, in the performance of his duties, was required to be on top of the defendant’s train, and to go from one car to another.

<p>Bankruptcy — Preferred Debt — Rent—Lease for Eive Tears.</p> <p>A lease for five years provided that, if the tenant became a bankrupt, the rent for the entire term should be taken to be due and payable forthwith. Within a year he was adjudged a bankrupt, while owing three months’ rent. The trustee notified the landlord that the lease would be surrendered at the end of the second month thereafter, but he refused to accept the surrender, and filed a claim for one year’s rent as a preferred ¿claim under the Pennsylvania act of 1836, giving a landlord priority of payment for one year’s rent out of the proceeds of the sale of the tenant’s goods. By an amicable arrangement the premises were occupied by a third person during the seven remaining montos, for which rent was claimed, and the landlord then took possession. Held, that he was properly allowed, as a preferred debt, three months’ rent due when the petition in bankruptcy was filed, and also the rental rate as compensation during toe time the trustee retained the premises, and to receive toe rent which the temporary tenant was to pay, and the balance of the claim was properly rejected.</p>

The appellant filed his bill in the court below alleging that the defendant (appellee), under the laws of the state of Ohio, is a corporation capable of being sued, and is required to construct and keep in repair all necessary bridges within Monroe county, Ohio; that the Canton Bridge Company and defendant entered into four contracts in -writing, by which said bridge company agreed to furnish all the material, except lumber, and construct and complete ready for travel, the…

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

<p>L Bankruptcy — Jurisdiction to Determine Validity of Mortgage — Consent of Mortgagee.</p> <p>A creditor of a bankrupt, who holds chattel mortgages, and who, in response to a petition by other creditors, asking that its mortgages be set aside as illegal preferences, asked and obtained further time to plead, and thereafter answered the petition, asserting the validity of its mortgages, and asking that its claim be allowed and paid from the proceeds of the mortgaged property in the hands of the trustee, thereby consented that its rights might be adjudicated by the court of bankruptcy, and cannot, for the first time, challenge the jurisdiction of such court after the issues have been referred and testimony taken by the referee.</p> <p>2. Same — Liens—Validity of Chattel Mortgages.</p> <p>A bankrupt, before the filing of his petition, was a country merchant, and engaged in the canning of tomatoes, which required during the canning season a large outlay of cash in the purchase of tomatoes and cans. By arrangement with a bank the latter advanced the sums required, taking up the drafts attached to bills of lading for cans, and holding such bills until mortgage bills of sale were executed upon the canned product to secure the advances made, and further advances then made or to be made for the purchase of materials. These mortgages were properly recorded. ‘ Helé, that such mortgage bills of sale created valid •liens, which, under Bankr. Act 1898, § 67d, were not affected by the subsequent bankruptcy of the mortgagor.</p> <p>8. Same.</p> <p>A parol agreement between the mortgagor and mortgagee that the canned products should be delivered by the mortgagor to a commission house, and be sold by it, and the net proceeds paid to the mortgagee, did not affect the validity of the mortgages, or constitute a transfer with the intent and purpose to hinder and delay creditors, within the meaning of Nat. Bankr. Act 1898, § 67e.</p> <p>4. Chattel Mortgages — Validity—Sufficiency of Description.</p> <p>A series of chattel mortgages executed at short intervals, and in effect as a part of' the same transaction to secure advances made by the mortgagee to enable the mortgagor to conduct a canning business, and covering the product of such business, are not invalid, under the law of Maryland, for insufficiency of description, although at the date of the first the goods mortgaged were in part to be yet acquired, where they had all been acquired when the last was executed.</p>

<p>ADMIRALTY — INJURY TO SEAMAN - -SUBSEQUENT NEGLECT— LIABILITY.</p> <p>Libelant, a seaman, liad his arm broken through being struck with a capstan bar by the mate of the vessel, and the master, during the 11 days it was at sea before reaching port, required him to continue work to some extent, threatening to put him in irons unless he did so. The perfect rest necessary to insure a natural reunion of the disunited parts of the hone was thereby prevented, and the injury greatly aggravated. Libelant told the master that his arm was broken, and it became swollen and inflamed immediately, and remained constantly in that condition. Held' that, though there was no fault on the part of the vessel as far as the blow itself was concerned, it was liable for the master’s misconduct in compelling the libelant to continue work after he was injured, instead of permitting him to have the necessary rest.</p>

<p>In Admiralty. Suit to enforce a statutory lien for supplies furnished.</p>

<p>1. ADMIRALTY — COLLISION—VIOLATION OF littLKS OF MAVrOATIOTT — LIABILITY.</p> <p>Act Cong. Aug. 19, 1890 (26 Stat. 320 -327) art. 20, requires that, where a steamboat and sailing vessel are in danger of collision, the steamboat shall keep out of the way. Article 21 prescribes that, where one of two vessels is required to keep out of the other’s way, the other shall hold its course and speed. Article 22 provides that the vessel required to keep out of the way shall, if possible, avoid crossing ahead of the other. Article 23 declares that the vessel required to keep out of the way shall, if necessary, slacken speed, stop, or reverse. A steam ferryboat came practically to a standstill in Norfolk harbor to permit a steamship to pass, and then rang up, and passed full speed under its stern. At that moment a sloop was observed passing down the harbor immediately across the steamer’s bow, and the ferryboat, instead of complying with the rules, whistled for the right of way, without slackening speed or reversing; and a collision resulted, in which libelant’s intestate, a passenger on the sloop, was killed, field, that the ferryboat was at fault and liable.1</p> <p>S. Same — Right to Violate Rules.</p> <p>The ferryboat had no right to call on the sloop to give way or change Its course, there being nothing to indicate peril or difficulty to the former in conforming to the accustomed rules of navigation.</p> <p>8. Same.</p> <p>Even if there had been apprehension of Immediate danger, as contemplated by Act Cong. Aug. 19, 1890 (26 Stat. 327), art. 27, requiring due regard to be had to special circumstances rendering a departure from the rules necessary to avoid danger, the ferryboat should have resorted to all other practical methods of avoiding the collision before violating the statutory requirements.</p> <p>4. Same — Contributory Negligence — Error in Extremis.</p> <p>Even if the sloop, on the signal from the ferryboat, luffed and changed its course for half a minute, and then suddenly again changed its course across the ferryboat’s bow, the ferryboat would still be liable; the sloop’s negligence being error in extremis.</p> <p>5. Same — Necessary Damaoes.</p> <p>Libelant’s intestate was a colored farm laborer, without any special acquirements; having no trade of any kind. He at times worked.in a dairy, making $25 per month, or more. He was 23 years old, of good health, sober and industrious, provided for his family, and left a widow, without children. Held', that $1,200 damages should be awarded.</p>

<p>In Admiralty. Suit for injury of vessel at wharf.</p>

At Law. Action against the United States to recover for extra work done and materials furnished in the construction of a fortification under a contract.

<p>Bankruptcy — Claim op Creditor — Contract por Rebate.</p> <p>The decision of a referee that, under a contract recognized by the previous course of dealing between a creditor and the bankrupt, the latter was entitled to a rebate on his purchases during the year, which should be deducted from the creditor’s claim, affirmed.</p>

<p>Bankruptcy — Discharge—Failure to Keep Books.</p> <p>A «-editor objecting to the discharge of a bankrupt is not bound to prove his specifications beyond a reasonable doubt, and proof that the bankrupt made a written statement within a few months prior to his bankruptcy for the purpose of obtaining credit, in which he did not disclose debts to relatives, which he afterwards claimed to owe, and paid while insolvent, is sufficient to east upon him the burden of explanation, and of showing that the transactions were fully entered on bis books; otherwise the court is justified in denying him a discharge on the ground of his concealment of assets and failure to keep books from which bis true condition could be ascertained.</p>

<p>At Raw. Action for personal injury. On exceptions to report of auditor.</p>

<p>In Bankruptcy. In the matter of claims of the Globe Refinery Company and Fulton Bag & Cotton Mills. On exceptions to findings of referee.</p>

<p>Life Insurance — Construction of Contract — Right of Policy to Share in Dividends.</p> <p>Defendant, a mutual life insurance company, by whose charter all policy holders if in good standing were members, and entitled to share in profits, issued a policy for $10,000, payable on the death of the insured, the entire premium on which was to be paid in 10 annual installments, a part in cash and a part in notes bearing interest, upon which notes all dividends accruing to the policy were to be applied. The policy contained a provision “that said company further promises and agrees that, if default should be made in the payment of any premium, they will pay, as above agreed, as many tenth parts of the original sum insured as there shall have been complete annual premiums paid at the date of such default.” It also further provided that, “if the said premiums or interest upon any note given for premiums shall not be paid on or before the dates above mentioned. ⅜ * * the company shall not be liable for the payment of the whole sum insured, but for such part only as is expressly stipulated above.” The notes required the interest thereon to be paid annually. The insured paid eight complete annual premiums in cash and notes, together with the interest accruing on the notes previously given up to the time of the last premium payment, after which he made no further payments of premium or interest. Helé, that by the payments made the policy, by its terms, became a legal and complete policy for the sum of $8,000, carrying all the benefits which would have accrued to it if the remaining two payments had been made, except as to the amount insured, including the right to share in further dividends, which must be applied to the payment of the interest and principal of the outstanding premium notes; and that, such application not having been made, on the death of the insured the beneficiary was entitled to have it made, and to recover the sum of $8,000, less the amount remaining due on the notes.</p>

<p>On Petition for Order Removing Cause from State Court.</p>

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

<p>1. Eminent Domain — Powers of Telegraph Company — Corporation Dr Facto.</p> <p>Where the proper formal steps have been taken to organize a telegraph corporation under the laws of a state, it becomes snch a corporation de facto; and its right to exercise the power of eminent domain, conferred on such companies by the statutes of the state, cannot he denied by the defendant in a suit instituted for the condemnation of right of way on the ground that It Is only a pretended, and not a real, corporation, that being a question which can only be raised by the state.1</p> <p>2. Same — Use of Railroad Right of Wat.</p> <p>A telegraph company whicli has accepted the conditions imposed by Rev. St. §§ 5263-5269 is entitled to construct its line over the right of way of a railroad which by section 3964 is declared to be a post road of the United States and to have the damages assessed in any court of competent jurisdiction, where such line may be so constructed as not to interfere with the operation of the railroad.</p> <p>3. Same — Montana Statute.</p> <p>Under the statute of Montana (Oode Civ. Proc. p. 3, tit. 7) which confers on certain corporations, among which are telegraph companies, power to exercise the right of eminent domain, subject to the limitation that the court must find that the use sought to be made of the property condemned is a public use, and, if the property has already been appropriated to a public use, that the second is a more necessary public use, it must be held that the use of land for a telegraph line is a public use, and that the appropriation for telegraph purposes of a portion of the right of way of a railroad not occupied for railroad purposes is for a more necessary public use than that of the railroad company.</p> <p>4. Same — Compensation—Measure of Damages.</p> <p>Where the construction of a telegraph line over the right of way of a railroad will not appreciably diminish the value of the use of such right of way for railroad purposes, the telegraph company is required to pay only nominal damages on condemnation of a right of way for its line.</p>

<p>Olive Ott, — Customs Duty.</p> <p>Where witnesses caller! for the government were Italians, who testified that the olive oil imported was fit for food, but was of a poor quality, and that it burned the throat, and that it was bought by the poorer class of Italians, and it had a strong, offensive, and rancid odor, and a witness for the importer testified that it was a nonedible oil, unsafe for human consumption, and that it was not manufactured, imported, or adapted for food consumption, it was freo, under Act 1897, par. (526, as olive oil for manufacturing or mechanical purposes, “fit only for such use,” and not dutiable as olive oil not specially provided for, under paragraph 40 of the act.</p>

In Bankruptcy. The following is the report of the referee upon petition for discharge: I, Henry G. Newton, referee in bankruptcy for the New Haven county district of the district of Connecticut, to whom the above-entitled case was referred under the act of congress-relating to bankruptcy, do hereby certify: That the above-named Harry Holstein, of New Haven, Connecticut, was duly adjudicated a bankrupt herein on August 12, 1901.

<p>1. Collision — Navigation in Poo — Construction of Rules.</p> <p>Under the second clause of article 16 of the international navigation rules, which requires a steam vessel, “hearing apparently forward of her beam the fog signal of a vessel the position of which is not ascertained,” to stop her engines, and then navigate with caution until danger of collision is over, it is the duty of a vessel to stop under such circumstances, in all doubtful cases, until both the position and course of the other is known.1</p> <p>H. Same — Steam Vessels Crossing — Excessive Speed and Failure to Stop in Fog.</p> <p>In a suit for collision between two ocean steamships in a dense fog, while on crossing courses, it appeared that after entering the fog both continued at more than half speed, in violation of the first provision of rule 16, and that, after hearing each other’s fog signals, both proceeded without stopping for some time, in violation of the second clause of such rule; the vessels when they saw each other being within 500 feet, and unable to check their momentum in time to avoid collision. 1Held, that both must be held in fault, and the damages divided.</p>

The following is the opinion of the court below: COLT, Circuit Judge (orally). In this case I thought it would be better to send for counsel and state to them certain conclusions which I have reached, rather than to file a written opinion in the first instance. This suit was brought in the slate court December 8, 1883. It is a suit upon a license contract dated October 4, 1878. Under the license the fees were paid to January 1, 1883.

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

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

<p>1. Maritime Liens — Loss of Passenger’s Baggage — Delivery to Vessel.</p> <p>As regards liens upon a vessel for breach of a contract of affreightment, there is no distinction in principle between a contract for the transportation of a passenger with his. baggage and one for the transportation of merchandise, and, by analogy with the rule in the latter ease, no lien arises for loss of baggage unless at the time of such loss either the' passenger had been received on board, or his baggage had been put into the custody or control of the vessel.</p> <p>2. Same — Admiralty Jurisdiction.</p> <p>By the custom of a steamship company, it received at its pier baggage sent there by passengers intending to take passage on its vessels, and kept the same-until claimed-by the passengers. By the rules of the company, the passenger was required to present a ticket,-and have his baggage checked, before it was received on board a vessel. Libelant sent baggage to the pier, where it was received; and he subsequently purchased a ticket for one of the company’s vessels, which he presented to the baggage master, but his baggage could not be found. Prior to such time the company had no notice to whom the baggage belonged, or when or by what vessel it was to be shipped. Held, that whatever the liability of the company, as carrier or warehouseman, libelant had no lien for the loss of the baggage on the particular vessel for transportation upon which he afterward contracted, but which at the time of the loss had not entered on performance of the contract, which would support an action in rem in a court of admiralty.</p>

<p>Army — Enlistment of Minor — Parents Securing Release.</p> <p>Under Rev. St TI. S. §§ 1110-1118, providing that army recruits must be between 16 and 35 years old; no one under 21 years shall be enlisted without the consent of his parents or guardians; and that no one under 16 years old shall be enlisted, — one between 10 and 21 years oM, enlisting without consent of parents, on representation that he is of age, becomes a soldier, amenable to military jurisdiction for military offenses, and subject to release from service only on application of Ill's parents, who cannot prevent his court-martial for past military offenses.1</p>

<p>1. CONTRIBUTORY NeGLIGENGE — BURDEN OF PROOF — RULE IN FEDERAL COURTS.</p> <p>Where, in an action to recover for negligence resulting in death, the defendant claims contributory negligence, it is the rule of the United States courts, irrespective of the decisions in the courts of the state where the federal courts are held, that the burden is on defendant to show that the deceased was negligent and that his negligence contributed to the injury which resulted in his death.</p> <p>3. Same — When Question of Law.</p> <p>Where, in an action to recover for personal injury, all the material facts touching the negligence of the person injured are undisputed, and admit of no rational inference but that of his negligence, the question of contributory negligence becomes matter of law only, and the court should direct a verdict.</p> <p>8. Same — When Question for the Jury.</p> <p>Where, in an action to recover for personal injury, the negligence of defendant is shown, and there is conflict in the material evidence as to whether the person injured observed ordinary care, or, where there is no such conflict, the facts are such that reasonable men might fairly draw different conclusions from them, the question of contributory negligence is for the jury.</p> <p>4. Railroads — Negligence—Personal Injury — Contributory Negligence— Evidence — Question for Jury.</p> <p>Plaintiff sued to recover for the death of his minor son, caused by the negligence of a railroad company. The accident occurred about dark at a street crossing in a village. The street approaching the crossing was for 100 yards in a cut 4 or 5 feet deep, and the railroad for 300 yards was on a curve, and in a cut 8 or 10 feet deep, with shrubs, a fence, and house between the street and track. The train was running 35 or 40 miles an hour, in violation of Laws Miss. 1896, p. 76, which prohibited a greater speed than 6 miles an hour through a city, town or village. The evidence was conflicting as to whether the whistle was blown or bell rung continuously for 300 yards before reaching the crossing, as required by Ann. Code Miss. § 3547. Deceased, who was driving a team attached to a loaded wagon, in which were two other men, slowed to a walk as he approached the track. One of those men testified that he looked and listened all the way along for a train, and was facing the direction from which it came; that he was the first to see it, and as soon as he saw it he called out, and jumped from the wagon, and just as he struck the ground the engine struck the wagon. There was testimony that one approaching the track could not see a locomotive headlight coming from that direction until he was within 6 feet of the track and the engine was within 150 yards. The negligence of defendant was conceded, but the court directed a verdict for defendant on the ground of contributory negligence of deceased. Held, that the question should have been submitted to the jury.</p> <p>Pardee, Circuit Judge, dissenting.</p>

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

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

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

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

<p>1. Shipping — Limitation of Liability — Value of Stranded Vessel.</p> <p>Where a ship was stranded on a reef and so injured as to terminate her voyage, in order to secure the statutory limitation of liability the owner, when the vessel is not surrendered, must pay her value as she lay upon the rocha, and the amount of her freight then pending, if any. Her value for such purpose is not affected by the result of any subsequent salvage operations, whether undertaken by the owner or others; and where at great risk, hazard, and expense the owner succeeded in releasing her and haying her towed to a port where she was valued, there must be deducted from such valuation, for the purpose of fixing the measure of his liability in limitation proceedings, not only the expense incurred in her rescue, but also an allowance on account of the risk and hazard of the salvage undertaking, which clearly affected her value as she lay before such operations were commenced.1</p> <p>¾. Same — Freight Pending.</p> <p>In respect to the pending freight, which must be surrendered by a shipowner in order to secure the statutory limitation of liability, the law Is that freight pending is freight earned; and when the voyage is broken up by the wrecking of the ship before reaching her destination, there is ordinarily no freight earned, for, even though prepaid, in the absence of special contract, it may be recovered back by the shipper.</p> <p>8 Same — Passage Money Received from Passengers.</p> <p>Where a ship, at the time she was stranded and the voyage terminated, was carrying passengers, who had preiiaid their passage under contracts providing that in case of the loss of the vessel the passage money should not be refunded, such passage money must he considered the same as freight earned, and surrendered by the owner in proceedings for the limitation of liability; and no deduction can be made because certain of the tickets were given to the passengers by the shipowner, nor on account of a sum paid by such owner for the transportation of the passengers from the place of the stranding to their port of destination.</p>

This suit was instituted under the act of congress entitled “An act to provide for the bringing of suits against the government of the United States, approved March 3, 1887,” by William H. Tisdale, United States marshal for the Middle district of Alabama, to recover from the United States certain fees and. expenses alleged to have been earned by the marshal and his deputies, which said fees and expenses had been disallowed by the proper auditing department of the United…

. This action was brought by S. H. Anderson, the defendant in error (plaintiff below), to recover damages of the Mexican Central Railway Company, Limited, the plaintiff in error (defendant below), for personal injuries alleged to have been received by the plaintiff while in the service- of the defendant, and to have been caused by the defendant’s negligence in the manner as stated in the petition.

This was an action by Warren G. Furry, a railroad fireman, who sued his employer, the St. Louis & San Francisco Railroad Company, the plaintiff in error, for injuries sustained in a collision between two freight trains on October 17, 1897.

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p> <p>On the 26th day of October, 1900, plaintiff in error brought this suit against the Ennis-Calvert Compress Company, a corporation organized under the laws of the state of Texas, in trespass to try title and for the possession of a certain tract of land, being town lot property situated in the city of Waco. The defendant, after demurring, filed its original answer, pleading not guilty and the statutes of limitations of three, five, and ten years. The case was tried before the court (a jury being waived in writing), and the court found a judgment against plaintiff in said cause and adjudged the title to said property to the defendant: and filed contemporaneously therewith, at the request of the parties, findings of fact and conclusions of law, as follows:</p> <p>“(1) The court finds the facts in this ease to be the same as those in the case of Houston & T. O. It. Co. v. Emiis-Oalvert Compress Oo., decided by the court of civil appeals, and reported in 56 S. W. 367, to which reference may be made as part hereof.</p> <p>“(2) I find that on the 11th day of June, 1877, the Houston & Texas Central Railway Company conveyed the property sued for to the Waco Produce Company, with the following language in said deed: ‘Now, the separate and independent conditions of this quitclaim deed are as follows, to wit: In case the said Waco Produce Company shall, within six months from date hereof, — and time is declared to be the essence of the contract, — construct a cotton compress and the necessary sheds upon the said tract of land herein conveyed, then, and in that event, this instrument is to take effect, and not otherwise: provided, nevertheless, that in case said Waco Produce Company, or any person holding or claiming under it, shall at any time thereafter make use of the tract herein conveyed, or of any part thereof, for any purpose or purposes than that hereinbefore specified, or shall fail or neglect to keep and maintain Its compress in good working condition, or shall in any way forfeit its charter, or shall become insolvent, that on the happening of any one of said several contingencies, or upon the failure as aforesaid of any one of them, that the title and possession of said tract herein conveyed shall in consequence and by force thereof, and without the necessity of a reconveyance, ipso facto revert to and invest in said Houston & Texas Central Railroad Company, its successors and assigns, and thereupon this Instrument shall become null and void as against said railway company, but shall be in force as an estoppel of all claims to title or possession as against said grantee herein.’</p> <p>“(3) I find through various links the title of said property finally passed to the defendant in this suit through those under whom it holds under the H. & T. O. Railway Co., and that the same was occupied continuously, practically, by a compress thereupon, until on or about the year 1892, when the Ennis-Calvert Compress Company abandoned said property, and from said date the grantor, or its successors or assigns, became entitled to enter or sue for said property on account of the breach of the conditions subsequent.</p> <p>“(4) I find that on the 4th day oí May, 1888, all of the properties of the Houston & Texas Central Railway Company, including this property, was ordered to he sold under decree of the United States circuit court sitting at Galveston, in the case of Nelson S. Easton et al. v. The Houston & Texas Central Railway Company et-al., and that Charles Dillingham was appointed master commissioner to sell the property, and on the 8th day of September, 1888, he sold all of its properties to Frederic P. Olcott, who became the purchaser at said sale, which sale was duly confirmed; and on the 18th day of January, 1889, the said Charles Dillingham, master commissioner, under orders of the court, executed and delivered his deed to Frederic P. Olcott, in which deed the Houston & Texas Central Railway Company joins, and the property conveyed in said deed is described as follows, to wit: ‘The property so conveyed includes the railroads of said company from Houston to Denison and from Hempstead to Austin, with the roadbeds, rights of way, buildings, and improvements of every kind and description connected with the said railroads, or any part thereof, and all their appurtenances, and also all rolling stock and equipments, materials, supplies, and personal property of every kind procured for or in any manner connected with said railroads, or used thereon, or any part thereof; also all the chartered rights, liberties, privileges, immunities and franchises of said railway company of every kind and description whatsoever appertaining to said railroads; also all the lands which have been received from the state of Texas for the construction of its said railways, not including the lands covered by the said first mortgage on the said Waco and Northwestern Division; and also all other lands, town lots, or blocks, and real estate or interests in real estate, of every kind and description to which said railway company has title, claim, or equitable ownership; and also all the tolls, earnings, freights, receipts, and moneys of every kind and description of said railway company from said railways, and all personal property, bonds, stocks, choses in action, assets, accounts, and claims of every kind of said railway company, appertaining to said railways, saving and reserving such portions of said lands as have been heretofore and prior to May 4, 1888, sold to other purchasers, but including all securities for unpaid consideration of said sales, the amount of such sales included in this deed being estimated to amount, exclusive of the lands pertaining to the railways themselves, to about four millions three hundred and forty thousand three hundred and thirty-nine acres, and including all property of whatever character, description,’ etc. That on the 1st day of April, 1890, the said Frederic P. Olcott sold part of said property so purchased by him to the Houston & Texas Central Railroad Company, the present corporation, using the following language, to wit: ‘(The railways formerly of the Houston & Texas Central Railway Company from Houston to Denison and from Hempstead to Austin, with the roadbeds, rights of way, buildings, and improvements of every kind and description connected with the said railways, or any part thereof, and all their appurtenances;, and also all rolling stock, and equipments, material, supplies, and personal property of every kind procured for or in any manner connected with said railways, or used thereon, or any part thereof; also all the chartered rights, liberties, privileges, immunities, and franchises of said railroad company of every kind and description whatsoever appertaining to said railways; and also all the tolls, earnings, freights, receipts, and moneys of every kind and description of said railway company from said railways, and all personal property, bonds, stocks, choses in action, assets, accounts, and' claims of every kind of said railway company appertaining to said railways, — it being the intent and purpose of these presents that there shall be hereby granted and conveyed to the party of the second part (the railroad company) all the railways, properties, rights, privileges, and franchises purchased by and conveyed to the party of the first part (Frederic P. Olcott) under such decree of foreclosure, excepting only town lots which formerly belonged to the Houston & Texas Central Railway Company, and lands derived by said last-mentioned railway company from the state of Texas, and not forming part of the right of way, or being appurtenant to or used in connection with the operation of the railways hereinbefore described, and except the right, title, and interest at law or in equity formerly belonging to said Houston & Texas Central Railway Company to -the lands and town lots standing on t’ne 18th day of January, 1889, or originally standing of record in the names of A. Oroosboek and others, trustees, in the counties of Bastrop, Brazos, Brown, Collin, Caldwell, Dallas, Ellis, Fayette, Freestone, Falls, Grayson, Gonzales, Johnson, Kaufman, Dixnestone, Lee, McLennan, Navarro, Robertson, Washington, and Wharton, all in the state of Texas.’</p> <p>“Conclusions of Daw.</p> <p>“(1) I find, as a matter of law, that the Houston & Texas Central Kailway Company, or its assignee, Frederic P. Olcott, had the right to re-enter and take possession of said property upon breach of the conditions subsequent, which said premises were abandoned for compress purposes in the year 1892.</p> <p>“(2) I further find that by reason of the language in said deed from Frederic P. Olcott to the Houston & Texas Central Railroad Company, conveying all ‘ehoses in action,’ said Frederic P. Olcott conveyed to said Houston a Texas Central Railroad Company all his right, title, and interest in and to said land, and his right of re-entry on account of said conditions subsequent being broken.</p> <p>“(3) I further find, by reason of the judgment in the suit of Houston & T. C. R. Co. v. Ennis-Oalvert Compress Co., supra, and affirmed by the court of civil appeals, that the defendant in this case is entitled to recover the land sued for herein.</p> <p>“I therefore find for the defendant herein, and direct the judgment to bo entered accordingly.</p> <p>“Edward R. Meek. Judge.”</p> <p>On this writ the assignment of errors attacks all the conclusions of law as found by the trial judge.</p>

This cause is one wherein the Provident Savings Life Assurance Society of New York brings a bill against Ernest M. Loeb and tho widow and heirs of Robert McNamara.

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

<p>Bankrupt Court — Setting Aside Discharge — Amendment of Schedule.</p> <p>A court of bankruptcy is without jurisdiction to set aside a discharge, to reinstate a case, and to permit an addition of a creditor to the bankrupt’s schedule more than a year after the adjudication in bankruptcy, without notice to the creditor.</p> <p>(Syllabus by the Court)</p>

■In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio. This is a suit brought by Thiebaud, the defendant in error, as administrator of Sweetman, against the Oincinnati, Hamilton & Dayton Railroad Company, to recover damages arising from the death of the deceased, occasioned hy the negligence of the company.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was an appeal from a decree adjudging the validity and infringement of letters patent No. 589,168, granted August 31, 1897, to Thomas A. Edison, for a kinetographic camera. See no Fed. 660, 664.</p>

<p>Patents — Invention—Breech Loading Ordnance.</p> <p>The Driggs & Schroeder patent, No. 360,798, for breech-loading ordnance, was not anticipated by the Storm patent, No. 132,740, nor by the Pieri British patent, No. 3,615, and describes a breech-block mechanism for rapid-fire guns, both novel and useful. Claim 1 also held infringed bj- a gun constructed in accordance with the Driggs-Tasker patent, No. 013.195.</p>

<p>1. Right of Appear — Temporary Injunction — Party not Restrained.</p> <p>One too is not restrained from the performance of any act or from the pursuance of any course of conduct by an injunction is not legally aggrieved by the order granting it, and has no right to appeal from such order.1</p> <p>S.Same — Order Issuing Discretionary.</p> <p>The right to exercise a sound judicial discretion in granting or refusing a temporary injunction is vested in the trial court, and not in the appellate court, and its orders should not he disturbed on appeal unless they are violative of the rules of equity which have been established for the guidance of the exercise of its discretion.</p> <p>8. Patents — Preliminary Injunction — Infringement—Review on Appeal.</p> <p>Where the determination of the question of infringement on the hearing of an appeal from an order granting a temporary injunction would not be final, but one of the parties to the suit would be entitled to a consideration and decision of the same issue at the final hearing, the appelate court will defer the decision of the question until after that hearing.</p> <p>4 Same — Temporary Injunction not Granted Unless Infringement Clear.</p> <p>It is the'general rule that a temporary injunction should not be granted on ex parte affidavits in a suit for the infringement of a patent where the question of infringement is grave and difficult, and it is not clear that the defendant is guilty of infringement.</p> <p>5. Same — Temporary Injunction Continued Until Final Hearing on Proper Bond.</p> <p>But in the appellate court the presumption is that the trial court rightfully found infringement, and even where that question is grave, and its decision doubtful, an order granting a temporary injunction will not necessarily be reversed, where the court below has required the complainant to .give bond to protect the defendant against loss from the erroneous issue of the injunction; and a final determination of the question of infringement cannot be made until the final hearing, if no better scheme can be devised to protect both parties from loss in the interim.</p> <p>6. Laches — Patents—Temporary Injunction — Reasonable Delay.</p> <p>Repeated willful trespasses confer no right to continue them; and mere delay, for any reasonable length of time, unaccompanied by such acts or conduct of the owner of the patent, and such facts and circumstances as amount to an equitable estoppel, will not deprive him, either on the ground of laches or of estoppel, of his right to a preliminary injunction, or to any other relief to which he would otherwise be entitled.</p> <p>7. Same — Delay During Litigation Over Validity of Patent not Laches.</p> <p>Delay in prosecuting other infringers while the validity of the patent is in active litigation does not constitute laches.</p> <p>8. Patents — Preliminary Injunction — Continuing Infringement Warrants.</p> <p>A continuing infringement on the complainant’s monopoly is always a sufficient ground for a preliminary injunction in the absence of countervailing facts, because there is no other adequate remedy for the loss which constantly repeated trespasses entail.</p> <p>(Syllabus by the Court.)</p>

<p>1. Patents —Estoppel.</p> <p>A patentee, and likewise a corporation, which, it organizes and controls, are estopped to assert’ the invalidity of the patent as against an assignee thereof.</p> <p>8. Same — Infringement—Preliminary Injunction.</p> <p>There being dispute as to the equities, preliminary injunction in suit for infringement of patent will not issue, defendants giving a bond to respond for profits or damages ultimately found, and filing statements of sales.</p>

<p>1. Bbokebs — Breach of Contract to Deliver Stocks — Sufficiency of Demand.</p> <p>A broker who was carrying stocks for a customer, which he had bought on a margin, made a general assignment; and a few days afterwards the customer wrote him, asking the amount of liis account, which he did not know, and stating that he would remit the amount and take up the stocks. No action was taken by the broker or assignee on such letter, the stocks having been previously pledged by the broker and sold by the pledgee; and the broker was subsequently adjudged a bankrupt. Held, that the letter constituted a demand, the failure to eomaly with which was a breach of the contract, and gave the customer an immediate right of action; it being shown that he was able and willing to pay the amount due from him to the broker.</p> <p>3. Same — Measure of Damaoes.</p> <p>Tlie measure of damages for the breach of a contract by a broker to deliver stocks on demand of a customer, for whom he had bought tire same oil a margin, is to be determined according to the highest intermediate value of the stocks between the default and a time after the customer lias notice thereof reasonably sufficient to enable him to replace the stocks.1</p>

<p>Contempt Proceedings.</p>

<p>In Bankruptcy</p> <p>On the 31st of December, 1901, the Metzger Toy & Novelty Company, a partnership composed of Rudolph Metzger, Sr., Rudolph Metzger, Jr., and Mary Metzger, filed a petition in bankruptcy as such partnership, and also as individuals; and on January 3, 1902, the partnership, and each of said partners individually, were adjudicated bankrupts. In an adversary suit between the Bloch Qneensware Company and Rudolph Metzger, Sr., the former on the 30th of November, 1901, in tlie supreme court of the state of Arkansas, recovered a personal judgment against the latter for $983.02, with interest on 8902.22 at 6 per cent, from August 3, 1898; and on tlie 19th day of December, 1801, an execution was issued out of said court, directed to the sheriff of Sebastian county, and came to his hands on the following day. Tlie sheriff immediately notified Rudolph Metzger, Sr., and the latter begged time from day to day, in order that lie might borrow the money and pay off the execution. Failing in this, on the 23d of December Rudolph Metzger, Sr., agreed with tlie sheriff and the attorneys of the Bloch Queens ware Company that a cashier might he placed in the store of the Metzger Toy & Novelty Company by the sheriff, and the proceeds of each day's sales be turned over by said cashier to tlie sheriff in satisfaction of said execution. This method was followed up, and it continued until and including Christmas day: and, as tlie result of that arrangement, $479.09 was paid to the sheriff on the execution. At the time the sheriff received tlie money under the arrangement heretofore stated, and up to and including the time when tlie execution was levied, the iineontradicted proof shows that the Bloeli Queensware Company and its attorneys all believed that Rudolph Metzger, Sr., was solvent On tlie 26th of December following, tlie sheriff levied upon tlie stock of goods of the Metzger Toy & Novelty Company, and also certain real estate, and on the same day paid to the attorneys of the execution creditor the sum of $172.70; retaining the sum of $6.29 for his costs and commissions. Upon a proper application, this court enjoined the sheriff, oti January 3, 1802, from proceeding further under said execution, and the unsold assets of the Metzger Toy & Novelty Company subsequently passed into the hands of the trustee in bankruptcy. It is agreed that the Metzger Toy & Novelty Company and Rudolph Metzger, Sr., were at the time the execution was issued, and the aforesaid payment made, insolvent. On the Slst of January, 1902, the Bloch Queensware Company filed its claim, probated in proper form for allowance, against the individual estate of Rudolph Metzger, Sr., for the sum of $738.37; retaining the $42.9.09 realized by the sheriff on said execution. To this claim A. A. McDonald, as trustee for the estate of the copartnership of the Metzger Toy & Novelty Company, and A. C. Cunkle, as attorney for several of the creditors of the Metzger Toy & Novelty Company, filed objections to the allowance of said claim, alleging that the Bloch Queensware Company had received the payment within four months next before the institution of the proceedings in bankruptcy, and while said Rudolph Metzger, Sr., was insolvent, and that said payment was made out of the assets of the Metzger Toy & Novelty Company, and constituted a preference, which should be surrendered before said claim was allowed. The referee in bankruptcy sustained the exceptions, holding that the payment referred to constituted a preference, and that the Bloch Queens-ware Company’s claim should be disallowed, unless within five days it surrendered to the'trustee of the Metzger Toy & Novelty Company the $472.70 received by said Bloch Queensware Company from the sheriff under the execution. From this order of the referee the Bloch Queensware Company appealed and the referee has certified the case to this court for review.</p>

<p>1. Taxation — Interstate Commerce.</p> <p>A city ordinance imposed a license tax oí $5 per day on “each itinerant person or peddler traveling from residence to residence soliciting orders for, or selling directly or indirectly, goods, wares or merchandise to, the consumer,” etc. Petitioner was agent for a party living in another state, and solicited orders for various goods from persons in the city, the goods ordered being shipped direct from the other state to the purchaser. Bold, that petitioner was not liable for the tax, and could not be imprisoned for nonpayment thereof, as in so far as the ordinance applied to him It was a tax on interstate commerce, and im alid.1</p> <p>& Habeas Corpus-Right to Discharge,</p> <p>Petitioner, having been imprisoned under a judgment of the police court for a violation of such ordinance, was entitled to his discharge on habeas corpus, though he had not taken an appeal.</p>

<p>Carriers — Injury to Freight.</p> <p>A carrier, having received in good condition a large block of deeply veined marble, which, §fter notice to the officer of the ship in charge of the stowage “that it was a weak-looking block; that it wouldn’t take much to break it,” — was stowed so that it supported overlying cargo, with no support for itself, except pieces of dunnage near each end, with one end resting unevenly on the dunnage, — is liable for the break at the end, extending partly through a vein.</p>

<p>1. Habeas Cobpus — Pkactioe.</p> <p>Whore tlie cause of imprisonment fully appears in the application for habeas corpus and the exhibits thereto, it is proper to issue an order requiring the officer to show cause why the writ should not issue, and dispose of the case without first issuing the writ itself.</p> <p>2. Same — Gkounds von DtsciiaRGe — Technical Objections.</p> <p>Habeas corpus will not Issue unless the court under whose warrant an accused is held is without jurisdiction; and mere objections to the indictment against him as too vague and general, and not sufficiently informing him of the offense charged, cannot be considered.1</p> <p>8. Peonage — Act Abolishing — Constiuiction.</p> <p>Though the system of peonage in New Mexico was the moving cause for the enactment of the statute (14 Stat. 546; Rev. St. Ü. S. ⅛ 1990, 1991, 552(5, 5527) abolishing and prohibiting peonage, its title and the senate debates showing that to be the fact, the act does more than merely abolish an existing system, and makes criminal certain acts which would tend to sustain or re-establisli such a system, section 5526 providing for the punishment of any person who holds, arrests, returns, or causes to be returned, any person “to a condition of peona ge.”</p> <p>4. Same — Constitutionality.</p> <p>Under Const. Amend. 13, providing that “neither slavery nor involuntary servitude, except as a punishment for crime, * * * shall exist in the United States,” and that “congress shall have power to enforce this article by appropriate legislation,” congress lias power to make laws against involuntary servitude in the form of peonage.</p> <p>5. Habeas Cobpus — Gkounds eoh Disciiakge.</p> <p>Objection that a system of peonage such as once existed in New Mexico must exist before the statute prohibiting peonage will apply goes to the sufficiency of the indictment or the evidence to be offered on the trial for violating the statute, and will not be determined on an application for habeas corpus.</p> <p>8. Same.</p> <p>Failure to make an indictment good against demurrer, even though it contains a statement of particular facts which is not sufficient, the indictment also using- the words of the statute, will not entitle accused to discharge, on habeas corpus, especially where at the conclusion of his trial lie can avail himself of the defect by writ of error.</p>

<p>1. Appeal — Decision of Appellate Court — Effect.</p> <p>Where the circuit court of appeals on an appeal in bankruptcy proceedings directed costs and disbursements to be taxed against the respondents, such decision is not reviewable by the district court on a subsequent motion to amend the order directing the entry of judgment.</p> <p>2. Partnership — Proof.</p> <p>Where a firm appeared in bankruptcy proceedings, and filed proof of debt, in which a sworn declaration of the persons composing the firm was made by it, such declaration was sufficient proof of the persons composing the firm to sustain a judgment directing such persons to pay costs and disbursements of an appeal.</p> <p>3. Bankruptcy Court — Jurisdiction—Terms—Effect of Termination.</p> <p>A federal court sitting as a court of bankruptcy is regarded as always open, and does not, therefore, lose jurisdiction to alter or modify interlocutory orders by reason of the termination of the term at which they were entered.</p>

<p>1. Collision — Steamers Crossing — Excessive Speed in Fog.</p> <p>In a suit for a collision in tho night between the Atlantic steamships Biela and Eagle Point, 150 miles east of Sandy Hook, while on crossing courses, tho evidence and surrounding circumstances considered, and held to sustain the contention of the Eagle Point that there was a fog at the time and- place of collision so dense that the two vessels could not see each other until within 250 yards, and that the Biela was therefore in fault for maintaining full speed and failing to give fog signals.</p> <p>2. Same — Speed Permissible in Fog — “Moderate Speed.”</p> <p>Under article 16 of the international navigation rules, which provides that “every vessel shall, in a fog, mist, falling snow or heavy rain storms, go at a moderate speed, having careful regard to the existing circumstances and conditions,” the term “moderate speed” is a relative one and the time and place and all other circumstances and conditions must he taken into account before judgment can he pronounced on a given rate. Where a vessel with a normal full speed of 12 knots reduced to 8 knots or less in a fog, it will be held a moderate speed, where it is shown without contradiction that, owing to her having little cargo and being very light, she could not be properly controlled at a lower rate of speed.</p>

<p>Removal of Causes — Time fob Filins Petition — Plea to Jurisdiction— Effect.</p> <p>The time within which a petition for the removal of a cause from a state to a federal court may be filed is not extended by the filing of a plea to the jurisdiction of the state court.</p>

<p>Injury to Stevedore — Defective Chain — Inspection.</p> <p>A chain used for unloading a ship, and which broke, injuring a stevedore, while a load weighing a ton was being raised, its capacity in good condition being from three to four tons, and which had been used for several years, without needing repair, except that shortly before a link broke and was replaced with a new one, was inspected, so as to relieve the ship from negligence; two of the ship’s officers having, just before it was used, examined it link by link, and the break being at the side of a link, and due to imperfect welding, and the defect not being discoverable without the application of strain by a testing machine, or the use of acid and a microscope, which was not required by the facts known about the chain.</p>

<p>Shipping — Workmen Engaged in Repairing — Open Hatch — Liability of Vessel.</p> <p>Tlie act of a master and a crew of a vessel in failing to provide artificial light, and in permitting a hatch to remain open, will not subject the vessel to libel by the administrator of a person who was employed in repairing the vessel by one having charge of the work, and who fell through the hatch and was injured.</p>

<p>Former Judgment — Conclusiveness.</p> <p>Where, in an action in a state court to recover on a lien bond, plaintiff, a foreign corporation, was defeated because of its failure to produce the evidence required by statute of its right to do business and sue in such state, the judgment in such action is a bar to a recovery for the same cause of action in a federal court, though the plaintiff there produces evidence that it had the right to do business and sue in such state at the time the former action was tried, which evidence was in its possession at the time of the trial in the state court.1</p>

<p>Remand — Separable Coxtrove rsy.</p> <p>Where it is doubtful whether or not there is a separable controversy, and citizens of the state are on both sides of the cause, it will be remanded.</p>

<p>Attorney and Client — Action for Services.</p> <p>In an action by an attorney to recover for services rendered under an express contract, where tlio evidence showed that defendant employed an attorney to perform services, and he deputed his partner to take the matter up, and he employed another attorney, and promised to pay him as remuneration one-half of the compensation he should receive, but there was no agreement shown between defendant and any of the parties to pay a specified compensation, the cause of action was not established.</p>

<p>Corporations — Service of Process.</p> <p>Where the president of a foreign railroad corporation was resident in the state, and had an office therein, in which he performed his duties as such president, and had done so for many years past, the service in an action against the corporation arising without the state on complainant within the state was properly made upon such president.</p>

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

<p>Injury to Employe — Negligence — Evidence — Judgment Non Obstante Veredicto.</p> <p>Where, in an action against a railroad company for negligence resulting in the death of an employé, the evidence disclosed the general conditions and surroundings of the place of the accident to be such as to reasonably admit of the inference that due care was not exercised by the company to provide for the safety of its employés at that point, and the question as to whether the deceased had knowledge of the situation, and appreciated the hazard he incurred in consequence, was fairly open to controversy, and no complaint was made of the instructions, defendant’s motion for judgment notwithstanding a verdict for plaintiff should be denied.'</p>

<p>Contract- — Impossi bid tty of Performance — Acts of Foreign Government.</p> <p>_ Libelant and defendant entered into a contract in the Dnited States by which libelant agreed to make four trips with its steamship from Barbadoes to Colon, to transport laborers for defendant, which contracted to pay a stated sum for each trip. The contract, when made, was legal and valid where made, and also at the places of performance; but after two trips had been made a regulation of the colonial government of Barbadoes was promulgated forbidding the future embarkation of laborers, by reason of which defendant was unable to furnish any more for transportation. ‘Held, that such fact, which did not affect the legality of the contract where made, did not constitute a defense to an action to recover the hire of the ship for the remaining voyages at the contract price.</p>

<p>1. Building and Loan Association — Loan-Computation op Amount Due-Payments on Stock, Ktc.</p> <p>In ascertaining1 the amount due on a mortgage to an insolvent building and loan association, executed by one of Its stockholders, the mortgagor’s stock, or what he has paid thereon, either as payments, or as fines, dues, or penalties, should not bo considered.1</p> <p>2. Same — Pp.Eamiirs.</p> <p>Premiums paid by the mortgagor on account of his loan should be credited thereon, but without allowing him interest on the premiums.</p> <p>8. DmCKF.ES — CONCI.USIVENMSS.</p> <p>A decree canceling a mortgage executed to an Illinois building and loan association by one of its stockholders, obtained in an action brought against the association and its receiver in a Nebraska state court-notice of the suit being by publication, and neither the association nor the receiver having knowledge thereof, and no permission being given to make the receiver a party, — was not an adjudication, and did not bind a federal court in a subsequent action to foreclose the mortgage, brought by the receiver.</p>

<p>1. Minks — "Watebs—Right to Divtmit.</p> <p>Where a mining 'company has acquired the exclusive right to the use of trie water of a cerní in creek in working its mines, another company has not the right, in developing its mine by means of a shaft near the creek, to cut off and divert the waters flowing into it.</p> <p>2. Samis-— &hakt~ Notice ok Consequesoiss.</p> <p>Whore a mine owner, at tlie time of commencing a shaft which cut off the waters flowing into a ereelt which another mine owner had acquired the exclusive right to use, was cautioned by the latter again;'! cutting off such water, lie is bound with notice of the consequences of his acts.</p> <p>8. Samb — Temporary Injunction--When Granted.</p> <p>Where, in an action to restrain defendants from' diverting water from a creek which plaintiff has acquired the exclusive right to use, the rights of the parties are in dispute, and a temporary injunction will work less hardship than its refusal, it should be granted.</p>

<p>Bankruptcy — Examinati on — Criminating Testimony.</p> <p>The provision of Const. U. S. Amend. 5, that no person shall be compelled in any criminal case to be a witness against himself, may be invoked by a witness under examination in bankruptcy proceedings; Bankr. Act 1898, § 7, providing that no testimony given by bankrupt on examination concerning conduct of his business shall be offered in evidence against him in any criminal proceeding, being a protection only against use of his testimony in a prosecution in a federal court.1</p>

<p>1. Bankruptcy — Assigned Claims.</p> <p>Assignment of a claim against bankrupts entitles the assignee to share in the bankrupt estate, if the assignor is estopped from making the same claim.</p> <p>3. Same — Right to Discharge — False Statements.</p> <p>Discharge will not be denied a bankrupt because he made oath that he had no mqney deposited anywhere, when he did have $8 deposited with one to whom he ivas indebted.</p> <p>8. Same.</p> <p>Bad faith, depriving a bankrupt of right to discharge, will not be inferred because of slight understatements and overstatements of debts, counteracting each other.</p> <p>i. Same.</p> <p>A bankrupt does not lose right to discharge because stating that he has no interest in real estate and no policies of insurance, though he has a contract to purchase land, on which a payment equal only to accrued interest has been made, and which a vendor has a right to cancel for nonperformance, and though he has a life policy on which he has made one payment, it not appearing to have any surrender value.</p>

<p>1. Bankrupts -Who arm Creditors — Accommodation Makers ok Notes— PREFERENCES.</p> <p>Bankr. Act, § 60a, provides that “a person shall be deemed to have given a preference if, being insolvent, he has ⅛ s ⅜ made a transfer of any of his property and the effect ol' the enforcement of such * * * transfer will be to enable any one of liis creditors to obtain a greater percentage of his debt than any other of such creditors.” Feld, that an accommodation maker on a note executed by a bankrupt was not in any sense a creditor of the bankrupt, where he had not been called on to pay the note, or any part thereof, and could not be deemed to have received a preference merely because the bankrupt had, within four months of the adjudication, paid the amount of the note to the payee.</p> <p>¾. Same — Preferences—Recovery Back — Persons Liable.</p> <p>Bankr. Act. § 60b, providing that “if a bankrupt shall have giren a preference within four months before the filing of the petition * * * and the person receiving it or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be' voidable by the trustee., and he may recover the property or its value from such person,” does not authorize the recovery from' an accommodation maker on a note executed by the bankrupt of a payment made thereon by the bankrupt of his own accord, and not at the instigation or with the knowledge of such accommodation maker, though the payment was made within four months of the adjudication.</p>

<p>1. Bankruptcy — Possession op Property.</p> <p>The trustee being vested with the title of bankrupt as of date of the adjudication (Bankr. Act 1808, § 70), and possession of his property being then constructively in the bankruptcy court, the mortgagee of bankrupt, who thereafter takes possession of the mortgaged property, does not get legal possession, and no right of his is invaded by the trustee taking possession.1</p> <p>S. Same — Injunction against Action in Stats Court.</p> <p>A court of bankruptcy, under the power given it by Bankr. Act, §* 2 (15), and General Order 12, cl. 3 (32 G. C. A. xvi, 89 Fed. vii), to stay proceedings in a state court, will enjoin action against the trustee, where it is clear the taking by him of bankrupt’s property from plaintiff was not wrongful, as alleged, and continuance of the action will embarrass the administration of the estate.2</p>

<p>Intervention of A. E. Alphin for $1,945 as a preferred claim.</p>

<p>Bill by Assignee — Allegations as to Assignment — "Variance.</p> <p>A bill averring that “E. G. Church & Co.” sold to plaintiff all their right of action, claim, and demand against third parties was not supported by an assignment executed by E. G. Church alone.</p>

<p>Bankruptcy — Goods Obtained by Fraud.</p> <p>One from whom a bankrupt obtains goods on time, on false representation that they were to fill an order, when the bankrupt had no order, the goods being turned over to secure a bondsman of the bankrupt in another matter, and being secreted, is entitled thereto, the whole transaction being a fraud.</p>

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

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

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

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

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

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

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

<p>Motion for preliminary injunction.</p>

Appeal by the importers from a decision of the board of general appraisers, which sustained the assessment of duty by the collector of customs upon the merchandise in question.

<p>Application for Decree and Appointment of Receiver.</p>

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

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