Volume 115 — Federal Reporter

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

<p>I Seamen — Shipping Articles — Validity under Statute.</p> <p>Under Rev. St. § 4511, which requires shipping articles to state “the nature, and so far as practicable the duration, of the intended voyage or engagement, and the port or country at which the voyage is to terminate,” articles for service on a brig from a port in the state of Washington “to ports in the district of Alaska, within the Behring Sea and Arctic Ocean, and also other ports and places in any part of the world, as the master may direct, and back to a final port of discharge in the United States, for a term of time not exceeding six calendar months,” are not so indefinite in describing the nature of the voyage as to render them void, in view of the character of the vessel, the length of time required to make the voyage to an Alaskan port and return, and the limit on the term of service.</p> <p>& Same — Forfeiture of Wages — Desertion at Sea.</p> <p>Libelant, a seaman who has signed for a voyage to an Alaskan port and return to a port of the United States, before reaching the port of destination, and while at sea, went on board another vessel without leave, where he became intoxicated and refused to return when ordered, and did not thereafter return or offer to return to his service. 'Held, that his intoxication was no excuse, and that by his desertion he forfeited his wages earned.</p>

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

This is an appeal from an order and judgment distributing moneys in the hands of a receiver, and from various orders in the procedure connected therewith.

<p>Monopolies — Anti-Trust Act — Combination in Restraint op Interstate Commerce.</p> <p>The Tile, Mantel & Grate Association of California was organized by defendants, who were dealers in tiles and similar articles, for the declared purpose of uniting “all acceptable dealers” in tiles, fireplace fixtures, and mantels in San Francisco and vicinity (within a radius of 200 miles), and all American manufacturers of tiles and fireplace fixtures. The articles prescribed that other local dealers who had an established business and carried a stock of a stated value, and who were “acceptable,” might, on motion of a member, be permitted to join, and that all manufacturers of tiles in the United States might become members by signing the constitution and paying an entrance fee. The local members were bound by the articles not to buy goods from any manufacturer who was not a member, nor to sell goods to other' dealers not members, at less than list price, which was about double the market price, and the manufacturing members were bound not to sell to any dealer within the prescribed territory who was not a member. Held, that such association was a combination in restraint of trade among the states, illegal under section 1 of the anti-trust act of July 2, 1890 (26 Stat. 209), and also an attempt to monopolize a part of the trade and commerce among the states, within the prohibition of section 2, by shutting out from such trade all local dealers who were not members, and that defendants were liable in damages, under section 7 of the act, to such a dealer to whom a manufacturer in another state refused to sell tiles, as it had previously done, on the sole ground that such dealer was not a member of the association.</p>

The findings of fact and conclusions of law of the circuit judge, referred to in the opinion, are as follows: “(1) On or about the 24th day of September, 1897, the defendant, at the city and county of San Francisco, state of California, contracted to sell to the plaintiff as much Alsen’s German Portland Cement as the plaintiff should require for use in the construction of a building which the plaintiff was at that time about to erect in said city and county of San Francisco,…

Joseph W. Mather, the plaintiff in error, brought an action against the city and county of San Francisco, the defendant in error, to enforce the payment of certain bonds which were issued and sold under the provisions of an act of the legislature of the state of California. St. 1875-76, p. 433.

This was an action brought by the plaintiff in error against the defendant in error to recover possession of the mining ground and premises described in the complaint. The defendant pleaded in bar a judgment in its favor upon a demurrer to the complaint in a suit brought by the same plaintiff against the defendant upon the same cause of action in a district eourt of the .state of Idaho.

<p>1. Salvage — Salvage or Towage Service — Towing Leaking Schooner into Port.</p> <p>Where a schooner had sprung a leak by reason of striking a bar at the mouth of a river while being towed out to sea, which made it necessary to resort to the pumps, and, in the judgment of the master, to put into an intermediate port for repairs, but she was unable to reach such port by sail, owing to head winds, the service of a tug in towing her in was a salvage service, and entitled to be compensated as such.1</p> <p>2. Same — Amount op Award — Review on Appeal.</p> <p>The amount awarded by the trial court for salvage services will not be reduced by an appellate court, unless for violation of just principles, or for clear and palpable mistake, or gross overallowance.</p>

' This action was brought by the plaintiff in error, George A. Shook, a person of unsound mind, by his wife, Mary G. Shook, as guardian and next friend, against the Illinois Central Railroad Company, the defendant in error. The declaration is in the common form. The answer, in addition to the general issue, presented a special plea in confession and avoidance, which, in effect, was a plea of accord and satisfaction, setting up a written release.

<p>Shipping— Charter Party — Measure op Damages por Breach.</p> <p>Under the rule that damages for breach of contract must be confined to those which naturally and directly result from such breach, or may be fairly presumed to have been within the contemplation of the parties when the contract was made, where the owner of a steamer, under a time charter to convey cargoes of bananas from Port Limón to New York, under which a number of voyages had been made, had knowledge of and acquiesced in a custom of the charterer to have a cargo cut and ready to load in anticipation of each arrival of the steamer, and on one outward voyage the vessel was delayed by reason of unseaworthiness, for which such owner was responsible, until on her arrival the cargo was unfit to ship with safety, the charterer is entitled to recover the value at Port Limón of the cargo so lost, and such other loss as directly resulted from the delay; but the charterer was not entitled to load the cargo with knowledge of its condition, and ship the same to New York, and recover as damages the loss by deterioration on the voyage, and in addition a sum which it would have earned as freight for the voyage, under a contract with the third party, if the cargo had been delivered in good condition.</p>

This case comes on a writ of error from the circuit court of the United States for the Eastern district of Arkansas. The laws of that state provide (Sand. & H. Dig.

<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 Eastern District of Missouri.</p>

<p>L Penalties — False Notice ox Copyright — Extraterritorial Eeeeot oe Statute.</p> <p>Rev. St U. S. § 4968, provides that “every person who shall insert or impress” a false notice of copyright “in or upon any book * * * for which he has not obtained a copyright in the United States” shall be liable to a penalty. Defendant imported from Germany and sold in the United States books bearing a false copyright notice, which had been Impressed on them by the publisher In Germany by defendant’s authorization. Held, that defendant was not liable to the penalty, the statute having no extraterritorial effect.</p> <p>2. Same.</p> <p>Act March 3, 1897, amending Rev. St. § 4963, subjects to the penalty, in addition, every person “who shall knowingly issue or sell any article” bearing such false notice of copyright, “provided, that this act shall not apply to any importation of or sale of such goods brought into the United States prior to the passage hereof.” The books in question were imported prior to the passage of the act, but part of them were sold in the United States after its passage. Held, that such sale did not make defendant liable to the penalty.</p>

<p>Bankruptcy — Conditional Sale — Title Vesting in Trustee.</p> <p>Under Bankr. Act, § 70, providing that the title of the bankrupt shall vest in the trustee to “all property, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him,” where goods were sold to the bankrupt on credit, and with the understanding that the title to such of them as should not be sold by him should remain In the vendor until the payment of the purchase price, the title thereto vests in the trustee.</p>

This is an action on coupons clipped from certain municipal bonds which were issued by the city of Kearney, in the state of Nebraska; said bonds being in the following form: “No. -. £1,000.00. “United States of America, “State of Nebraska, County of Buffalo, “City of [cut] Kearney. “Bond. “The city of Kearney, in the county of Buffalo, state of Nebraska, acknowledges itself indebted to the bearer in the sum of one thousand dollars, which said city promises to pay to the…

On or about March 1, 1892, Nellie Houchens, the appellee, exhibited a bill ®f complaint against Thomas H. Allen, Thomas H. Allen, Jr., Harry Allen, and Richard H. Allen, Jr., partners under the firm name of Thomas H. Allen & Co., and against Ellen H. Allen, wife of Thomas H. Allen, and against M. B. Trezevant, as assignee of the firm of Thomas H. Allen & Co., in the circuit court of Jefferson county, in the state of Arkansas.

E. T. Guymon, the appellee, exhibited an amended bill of complaint, on which this case was eventually tried, against the Missouri Broom Manufacturing Company, David Loewen, the Exchange Bank of Jefferson City, William A. Dallmeyer, William Q. Dallmeyer, H. Clay Ewing, and Arthur M. Hough, the appellants, which contained, in substance, the following allegations: That in June, 1897, the complainant was induced, by certain false and fraudulent representations made by A. Loewen,…

This Is an action for breach of contract. William O. Scofield, Daniel Shurmer, John Teagle, and Charles W. Scofield, the defendants in error, sued the H. D. Williams Cooperage Company, the plaintiff in error, upon a contract whereby the defendant company had agreed to supply the plaintiffs “your entire requirements for new barrels during 1899 at the following points at the following prices”; also to supply “you with all the new barrels you may need at Kansas City for a…

Alfred W. Fleming died intestate in the state of Missouri on January 10, 1898, leaving a widow, Mary Cecilia Fleming, née Quan, and her son Alfred W. Fleming, Jr., who had been born on September 2, 1892. While the deceased was not a practicing physician, he was commonly known as Dr. Fleming, and in this statement, and in the opinion which follows it, he will be designated in this way to distinguish him from his son, who bears the same name.

This is an appeal from a decree which dismissed a bill for the infringement of claims 3, 4, and 5 of reissued letters patent No. 11,730, and claims 3 and 4 of letters patent No. 397,293. The former patent was for combinations of devices for the automatic oiling of certain stationary bearings of a horizontal engine, and the latter was for novel combinations of mechanical elements for the automatic lubrication of the bearing of the crosshead wrist-pin of such an engine.

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

In Equity. Suit for infringement of letters patent No. 364,217, issued to Gilman R. Coburn June 7, 1887, for a mold for molding heels for boots or shoes. On final hearing.

In Equity. Suit for infringement of letters patent No. 391,340, for a band fastening, issued to John M. Scott October 16, 1888. On final hearing. On final hearing, under bill of complaint alleging infringement of letters patent No. 391,340, issued to complainant October 16, 1888, for an improvement in band fastening.

<p>Bankruptcy — Preferences—Surrender—Necessity.</p> <p>Bankruptcy Act, § 60a, provides that a preference exists where the effect of the transfer is to enable one of the bankrupt’s creditors to obtain a greater percentage of his claim than other creditors of the same class. Section 57g declares that the claims of creditors who have received preferences shall not be allowed unless they are surrendered. A creditor of a corporation, after its insolvency and within four months of the adjudication, loaned it $40,000, and afterwards received payments of some $26,000. During the same period other creditors had put merchandise into the estate, and had received nothing on account It further appeared that the payments to the creditor in question were made after he had obtained representation on the corporation’s board of directors. Held, that the creditor had received a preference of $26,000, which would have to be surrendered before he could prove the balance of his claim.</p>

<p>In Bankruptcy. On review of decision of referee allowing the claim of a creditor.</p>

In Equity. On demurrer to title. The complainant, the American Waterworks & Guarantee Company, a corporation organized under the laws of the state of New Jersey, filed its bill against the Home Water Company and Arkansaw Water Company, corporations organized under the laws of the state of Arkansas, and having their principal places of business in the city of Little Bock, in this district, the Farmers’ Loan & Trust Company, a corporation organized under the laws of the state…

<p>1. Corporation — Priority of Lien as between Mortgage and Judgment-North Carolina Statute.</p> <p>The statute of North Carolina (Code, §§ 697, 698) provides that, where all the property of a corporation shall be sold and conveyed under a mortgage, the corporation shall ipso facto be dissolved, and the purchaser shall be a new corporation, succeeding to all the franchises and charged with all the duties of the old, except the payment of its debts. The property of a water company was sold on foreclosure of a second mortgage, and, under an arrangement between all parties in interest, including the first mortgage bondholders, was bought by a new corporation, which assumed payment of the first mortgage, and also assumed performance of a contract between the old company and the city for the furnishing of water for a term of years. Held that, so far as the rights of the bondholders of the old company were concerned, the new company was but a continuation of the old, and that a judgment against the new company for a tortious injury to property arising from its negligent performance of the duties imposed on it by its contract with the city, which by statute was made superior to the lien of a mortgage upon its property, was equally as effective against such bondholders as though their mortgage had been executed by the new company.</p> <p>8. Same — Judgment in Tort.</p> <p>A property owner whose property was injured by fire by. reason of the negligence of a water company in failing to supply water for fire purposes, as it was obliged to do by a contract with the city, as well as by the duty imposed on it by law as a quasi public corporation which had received valuable franchises from the city, granted for the purpose of seeming a water supply for fire protection as well as for private use, may sue such company either in contract or tort, at his election; and a judgment recovered in such an action, which expressly recites that it is “for the tortious injury and damage done him by the negligence of the defendant,” is within the terms of Code N. O. § 1255, which gives judgments against corporations for torts committed by the corporation, its agents or employés, whereby property is injured, priority of lien over mortgages given by the corporation.</p>

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

<p>h Bankruptcy — Preference—Security for Present Loan.</p> <p>The transfer by a merchant of notes and accounts as collateral to secure the repayment of a present loan does not create a preference, within the scope of the bankrupt act1</p> <p>9l Same — Presumption of Fraud — Choses in Action — Goods and Chattels— Mode of Transfer.</p> <p>Choses In action are not “goods and chattels,” within the contemplation of Laws N. Y. 1897, c. 417, art. 2, ? 25, providing that every assignment of goods and chattels by way of security, not constituting or intended to operate as a mortgage, unless accompanied by an immediate delivery followed by actual and continued change of possession, is presumed to be fraudulent and void as against the creditors of the vendor; and a transfer of choses in action on the books of the assignor, to secure a present loan, is not presumed to be fraudulent under such act.</p> <p>t. Collateral Security — Bills Receivable — Mode of Transfer.</p> <p>Where, on the transfer of bills receivable as security for a loan, the borrower opened a separate account of such bills on his books, and as fast as collected the proceeds were paid to the lender, and all questions of renewal and extension were referred to him, the transfer was complete and effectual.</p> <p>4. Same — Notice to Debtors.</p> <p>Where accounts and bills receivable are transferred as collateral security for a loan, notice to the debtors is not necessary to make the transfer effectual as against the creditors of the borrower.</p> <p>6. Same — Application op Proceeds.</p> <p>Where, under an agreement to loan to a merchant the money he should need during a certain season, the loan to be secured by the transfer of notes and accounts, and the money to be advanced from time to time as the needs of the business required, money was advanced at divers times, and each time a note given for the amount, and indorsed with a list of accounts, and notes then assigned as security, the sums so advanced should be taken as a continuous transaction, as between such lender and the trustee in bankruptcy of the borrower, and the net proceeds of such notes and accounts, when collected, should be first applied to the payment of the note for which they stood as collateral, and any excess applied generally on the indebtedness, until the full amount of the loan it- repaid.</p>

<p>Trade-Name — Infringement.</p> <p>The use of the compound name “Lithia-Vichy” on artificial mineral waters, with the words “Manufactured from Distilled Waters,” inconspicuously under it, indicates that the article labeled is something different from the natural French Vichy waters, and the use thereof will not be restrained as an imitation of plaintiff’s natural Vichy.</p>

<p>1 Carriers — Consignees—Unloading Freight — Duty to Protect.</p> <p>Where a railroad company furnished and hauled a car loaded with concrete for a contractor who was building piers In the company’s yard for an overhead highway bridge, the car being loaded and unloaded by the contractor’s employes, such employés were rightfully about the car while unloading, and as well entitled to safety from any unusual danger in being near it as a consignee unloading and taking away freight at a depot.</p> <p>8. Same — Evidence of Defect — Weight—Question for Jury.</p> <p>Where, in an action against a railroad company for injury to one employed in- unloading a car, caused by a door which was suspended by a hook falling, one witness testified positively that he reached up and examined the hook immediately after the accident, and that it was rounded so that it would not be likely to hold, the question whether the hook was defective was for the jury; and their finding should not be set aside, though other witnesses testified that the hook would be out of his reach, and was not situated where he said it was, and produced a hook, which they testified was taken from that place on the car, which was not rounded.</p>

In Bankruptcy. Proceedings ancillary to, and in aid of, proceedings in bankruptcy in the district court for the Southern district of New York, and to collect assets in the Eastern district of Pennsylvania. On November 9, 1901, Solis Y. Peiser was duly adjudicated a bankrupt In the district court of the United States for the Southern district of New York; and on the same day Theodore M. Taft was duly appointed receiver of the said bankrupt, and duly qualified as such.

<p>1. Bankruptcy — Homestead Exemption — Claim of.</p> <p>Tbe mere act of a bankrupt, in claiming a homestead exemption in the schedule filed by him, is not a compliance with Code Va. § 363.1, providing that, in order to secure the benefit of the exemption of real estate, the homesteader shall by a writing filed by him and duly submitted to record, to be recorded as deeds are recorded, declare his intention to claim such benefit and select and set apart the real estate to be held by him as exempt, etc., or with section 3639, providing that the personal property claimed as exempt shall be selected and set apart by the householder in a writing signed by him, and the said writing shall be admitted to record, to be recorded as deeds axe recorded..</p> <p>ft. Same — When not Allowed.</p> <p>The homestead exemption will not be allowed where the homestead waiver creditors, and not the bankrupt’s family, will secure the benefit thereof.</p>

<p>1. Licenses — Fees—Taxation.</p> <p>An ordinance providing that a telephone company shall not occupy streets without paying an annual license of $100 is a revenue provision (the fee being manifestly substantially in excess of enough to defray expense of issuing license and maintaining the regulation), and not authorized by a charter provision that the council may license telephone companies using the streets, and fix the compensation they shall annually pay for such license.</p> <p>3. Telephone Companies — Use of Streets — New Conditions.</p> <p>Where a telephone company has the right to use the streets of a city by permission of its officers, the city cannot, after the company has accepted the grant and established its plant, add a new condition, — that it pay for the use of the streets.</p>

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

Appeal by the Importer from a Decision of the Board of General Appraisers, which sustained the action of the collector in the assessment of duty upon the importations in question.

<p>Internal Revenue — Stamp Tax — Sales of Coepokate Stock — Constitutional Law.</p> <p>The defendant was indicted for omitting to attach the required revenue stamps, provided by the war revenue act of 1898, upon memoranda of sale of certain shares of railroad stock, with intent to evade the provisions of section 25, Schedule A, entitled “Stamp Taxes,” of such act of congress. The indictment was demurred to on the ground that the act of congress mentioned is unconstitutional; the defendant’s contention being that a tax on sales of shares or certificates of stock is a “direct tax,” and that it has not been laid in proportion to the census or enumeration, nor apportioned among the several states according to their respective numbers. ‘Held, that the tax is not a direct tax, not being a tax upon the property itself, but upon a business, occupation, or transaction, and the burden being upon the person who engages in the business of selling shares of stock.</p>

In Admiralty. Suit in rem to recover the contract price for supplies furnished to the steamship Robert Dollar, by the libelants, in Alaska, upon the order of the master, and also to recover for supplies and equipments furnished by the intervening libelants, at Seattle, at the request of a charterer in possession, who was obligated by the charter party to pay all expense bills and return the ship free from liens.

This case now comes up on the petition of G. H. B. Martin and the East Coast Cedar Company. The petition alleges: That on the 28th October, 1898, the East Coast Cedar Company, being one of the tenants in common of about 167,000 acres of land in the state of North Carolina, known as the “Blount Patent,” filed its bill of complaint against the other co-tenants, praying a partition of said lands.

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

<p>Appeals from Decisions of the Board of General Appraisers.</p>

<p>Customs Duties — Buckles.</p> <p>Buckles used on shoulder straps of overalls, and which are of the character of suspender buckles, are not trouser buckles, dutiable under Act 1897, par. 412 (30 Stat. 190), as such, but are dutiable under paragraph 193 (30 Stat 167), as articles of steel or iron not specially provided for, at 40 per cent, ad valorem.</p>

Appeal by the importer from a decision of the board of general, appraisers which affirmed the classification by the collector of customs of the importations in question.

<p>1. Removal of Causes — Diversity of Citizenship — Notice of Application.</p> <p>Where, in an action commenced in a state court, a petition and bond for removal to the United States circuit court exclusively on the ground of diversity of citizenship are filed, no notice of the application for removal is required to be given to the plaintiff.</p> <p>2. Same — Order of Removal — Right to Review.</p> <p>Where, on the filing of a petition and bond for removal of an action from a state court to the United States circuit court on the ground of diversity of citizenship, the judge of the state court makes an order for such removal, tiie federal court has no right to review the order, and decide whether the judge had a right to sign it, especially as no order was necessary, the cause being removed ipso facto on the petition and bond being filed.</p> <p>8. Same — Foreign Corporation — Prohibition of Removal by State Laws.</p> <p>A corporation of one state, doing business in another state under license, cannot, by the laws of the latter state, be deprived of the right to remove to the federal courts actions against it commenced in the courts of the latter state.1</p> <p>4. Same — Bond — Execution by Attorney — Authority— Ratification —Motion to Remand.</p> <p>Where, on an application for removal of an action from a state to a federal court, the bond was executed by the attorney of defendant, who then had no power of attorney so to do, and before a motion to remand on the ground that the bond was void a power of attorney ratifying such act was filed, the motion should be denied.</p>

<p>Homestead — Exemption.</p> <p>Premises permanently rented are not kept as a homestead, within V. S. § 2179, exempting premises “used or kept” as a homestead.1</p>

On Demurrer. In 1893 the Tennessee Central Railroad was organized under the laws of Tennessee for the construction and operation of a railroad between designated points. Newton & Co. contracted for the construction of a portion of this road, and filed a mechanic’s lien thereon to secure an account amounting to $47,000 for such work. The railroad becoming insolvent, under a creditors’ bill filed in a court of chancery in Tennessee was placed in the hands of a receiver.

<p>1. Marine Insurance — Partial Loss — Insurer’s Liability.</p> <p>In case of a partial loss of goods covered by a valued marine policy, the measure of the insurer’s liability is, the proportion which the loss-bears to the sound value at the port of discharge.</p> <p>2. Same — Carrying Goods on Deck — Insuring Partial Liability — Amount of Recovery.</p> <p>Where the- owners of a steamship insured a part only of their liability for carrying goods on deck under a valued policy reciting- that the goods-were valued at the sum for which the insurance was, effected, which was less than the actual value, on a total loss the insurers- were liable for the amount of the policy, which was in the nature of; liquidated damages, and were not entitled to any deduction by reason of the fact that the shipowners settled their liability for less than the value of the goods.1</p> <p>8. Same — Subject oe Insurance.</p> <p>A carrier’s liability for carrying goods on deck la a proper, subject of marine insurance.</p>

<p>In Bankruptcy.</p>

<p>Collision — Steam and Sailing Vessels Meeting in Fog — Unavoidable Accident.</p> <p>A collision occurred at sea, during a thick fog, between a schooner •and a steamship, which met on nearly parallel courses. Each heard the fog signal of the other, 'and the steamer at once slowed down to a moderate speed and proceeded with caution, while the schooner, which was sailing closehauled ion the port tack at a speed -of -about two knots, kept her course and speed; the wind being very light. The vessels were both properly manned and equipped, and had proper lookouts. After they sighted each other, when they were about 100 yards apart, the steamer did all that was possible to prevent collision. Held, that neither vessel was chargeable with any fault, and that the collision must be attributed to unavoidable accident.</p>

<p>Chinese Appeal.</p>

Sur Demurrer to Declaration. Action of debt, to recover penalty under the acts of congress of 26th of February, 1885 (23 Stat. 332), and 3d of March, 1891 (26 Stat. 1084), relating to the importation of alien labor.

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

<p>Customs Duties — Tungsten Orb, or Wolfram.</p> <p>Tungsten ore, or wolfram, is dutiable at 20 per cent, ad valorem, under paragraph 183 of Act July 24, 1897, imposing that rate upon “metallic mineral substances in a crude state,” and is not exempt under paragraph 614. which puts on the free list “minerals, crude, or not advanced in value or condition by refining or grinding, or by other process, not specifically provided for”; nor is it dutiable at 10 per cent, ad valorem, under section 6, as a “raw or unmanufactured article not enumerated or provided for.”</p>

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

<p>1. Bankrupts — Books of Account — Sufficiency.</p> <p>A bankrupt, wbo merely enters loans made to him by members of his family in private personal memorandum books, always kept in bis personal custody and concealed by him from every one, does not comply with the provision of the bankruptcy act requiring him to keep “books of account or records.”</p> <p>8. Same — “In Contemplation of Bankruptcy. ”</p> <p>Failure of a bankrupt to keep the requisite books of account must be deemed to have beeD “in contemplation of bankruptcy,” within Bankr. Act, § 14b, providing that a bankrupt’s discharge shall be refused if, with fraudulent intent and “in contemplation of bankruptcy,” he fails to keep books of account, where for at least a year prior to his failure his condition was one of such hopeless insolvency that he must be presumed tq have known it.</p> <p>8. Same — “Fraudulent Intent. "</p> <p>Failure of a bankrupt to keep the requisite books of account must be deemed to have been with “fraudulent intent to conceal his true financial condition,” within Bankr. Act, § 14b, providing that a bankrupt’s discharge shall be refused if with “fraudulent intent,” etc., and in contemplation of bankruptcy, he fails to keep books of account, where his testimony conceded an intent to conceal his true condition, and it appeared from the evidence that he knew he was insolvent and on. the verge of failure.</p> <p>4 Same — Failure to Keep Books.</p> <p>The fact that loans made to a bankrupt and not entered by him in his regular account books were made before the bankrupt act was passed did not excuse his failure to enter them as required by the bankrupt act.</p>

<p>Banks — President—Powers — Statement to Surety Company — Cashier’s Bond. '</p> <p>A bank cashier applying to a surety company for a bond accompanied the application with a statement as to his past conduct and the condition of his account, signed by the president of the bank, which was incorrect, though made in good faith. Such statement was not referred to in the bond issued. The president had no special authority to make it, and none of the directors knew of it until interposed as a defense in a suit on the bond; defendant claiming that the statement was either a false warranty by the bank, or a misrepresentation by it of material facts, which induced defendant to execute the bond, field, that making the statement was no part of the duties of the office of president, and not within his implied powers or ordinary duties, but was his individual act, by which the bank was not bound.</p>

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

This was an action upon a policy of life insurance issued by the Provident Life Assurance Society upon the life of Wm. M. Duncan for $10,000, and payable to Mrs. Oarrie E. Duncan, wife of the assured. The policy was issued September 8, 1897. The annual premium was §807. Among other matters, the policy contained the following provision: “All premiums are due and payable in advance at the office of the society, in the city of New York.

<p>1. Master and Servant — Defective Appliances — Negligence of Fellow Servant — Declarations—Res Gestae — Evidence.</p> <p>Where a stevedore on a steamship, while removing a hatch preparatory to loading the vessel, fell into the hold, owing to the giving way of the hatch cover on which he was standing, evidence of declarations of the stevedore and winchman, who were assisting him, made immediately after the accident, and while he was being removed from the hold, tending to show that the accident was caused by their carelessness instead of the defective appliances of defendant, as alleged by plaintiff, should, be received as part of the res gestse, though their attention was not called to such statements on cross-examination. 1</p> <p>2. Same — Improper Exclusion of Evidence — Prejudice—New Trial.</p> <p>Where, in an action to recover for an injury which plaintiff claims resulted from defective appliances furnished by his employer, evidence tending to show that the accident was caused by the carelessness of fellow servants is improperly excluded, and where it is not apparent that its rejection was not prejudicial to defendant, this is reversible error.</p>

<p>1. Appeal — Decisions Reviewable — Action against Receiver op Bankrupt.</p> <p>A final decree rendered in a proceeding by a third person to recover property in the possession of the receiver of a bankrupt is reviewable by a direct appeal, as in cases in equity.</p> <p>2. Same — Final Decree.</p> <p>An order, in a proceeding by a third person to recover property in the possession of a bankrupt, overruling exceptions to the report of a referee, and approving such report is not a final decree, and appealable.1</p>

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

<p>1. Customs Duties — Decisions of Circuit Court — Mode of Review.</p> <p>Act June 10, 1890, relating to revenue, provides in section 15 for an appeal from the decision of the board of general appraisers to the circuit court, and declares that the latter’s decision shall be final, “unless such court shall be of the opinion that the question involved is of sufficient importance as to require a review by the supreme court of the United States, in which case said circuit court * * * may * * * allow an appeal to said supreme court.” Act March 3,1891, creating the circuit court of appeals, transfers to the latter court jurisdiction of the appeals to the supreme court allowed by section 15. -Held, that the mode of review remains the same, and the proceedings in the circuit court cannot be reviewed by writ of error.</p> <p>8. Same — Appeal—Writ of Error — Distinctions between.</p> <p>A writ of error only brings up errors of law, while on an appeal the facts also are open to inquiry.</p>

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

This action was brought by the American Surety Company of New York, the plaintiff in error, against Henry W. Ballman and Joseph Durfee, the defendants in error, on an indemnity bond.

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

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

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>On petition for leave to reopen case in the circuit court.</p>

The East Tennessee Telephone Company is a corporation organized under the law of Kentucky, which is engaged in the operation of telephone systems in various towns of Tennessee. Prior to the controversy as to its right to do a local business and conduct an exchange at Morristown, it seems to have been conducting, in Morristown, a long-distance telephone station, by which the town was connected with other towns in the vicinity in which it was doing a local business.

Creditors of the Knoxville Building & Loan Association filed a bill in the court below for the purpose of winding the association up as an insolvent corporation. Under that hill the appellee, Peter Staub, was appointed receiver, and directed to collect in all of its assets of every kind.

<p>1. Supreme Court — Appellate Jurisdiction — Constitutional Question.</p> <p>A municipal ordinance passed under the authority of a power over the-subject-matter delegated to the municipality by the legislature, at least where there is good color for the claim that it was in fact passed under delegated authority, is in effect a “law of the state,” within the meaning of section 5 of the act creating the circuit courts of appeals (26 Stat. 826); and where a bill filed in a circuit court seeks to enjoin the enforcement of such an ordinance on the ground that it is in contravention of the constitution of the United States the supreme court has jurisdiction of an appeal in the case under said section.</p> <p>2. Circuit Court of Appeals — Jurisdiction.</p> <p>Where the jurisdiction of a circuit court is based solely on the ground, clearly disclosed by the plaintiff’s pleading, that a law of a state is claimed to be in contravention of the constitution of the United States, the parties being citizens of the same state, the supreme court has exclusive jurisdiction of an appeal in the case, and an appeal will not lie to the circuit court of appeals, although other questions may also have been involved and may have determined the decision.1</p>

<p>1. Patents — Suit for Infringement — Pleading—Anticipation.</p> <p>Prior patents relied on by a defendant in a suit for infringement as anticipations of the one in suit must be pleaded; otherwise they cannot be considered for that purpose, but only to show the state of the art, and to limit the claims involved.</p> <p>8. Same — Infringement—Incubator.</p> <p>The Jones patent, No. 586,088, for an improvement in incubators, relating to their heating and ventilation, in view of the prior art, must be limited to the exact combination shown, which includes an inlet pipe passing directly from the external atmosphere to the interior of the egg chamber, and an exit pipe leading to the heating device, so that the exhaust of air from the chamber, to produce ventilation, Is effected by the suction or draft caused by the heating device. As so construed, held not infringed.</p>

In Equity. Suit for infringement of letters patent No. 492,497, issued March 7, 1893, to Robert B. McEwan and others for a new and useful improvement in paper board. On final hearing.

<p>At Law. Action for infringement of patent. On demurrer to declaration.</p>

In Equity. Suit for infringement of letters patent No. 399,844, issued March 19, 1889, No. 413,390, issued October 22, 1889, No. 491,640, issued February 14, 1893, and No. 605,177, issued June 7, 1896, all granted to Emry Davis for inkstands. On final hearing.

<p>1. Interstate Commerce — State Law Regulating Sale of Liquors — Constitutionality.</p> <p>Sess. Laws Kan. 1885, c. 149, § 12, which makes it a criminal offense to “take or receive any order for intoxicating liquors from any person in this state, other than a person authorized to sell the same as in this act provided,” as applied to a commercial traveler or agent for a liquor house having Its place of business in another state, who solicits and takes orders in Kansas from persons who desire liquors for their own use, and not for sale, which orders he forwards to his principal for acceptance or rejection, is an attempted interference with interstate commerce, and void, as in violation of the commerce clause of the federal constitution.1</p> <p>2. Same — Effect of Wilson Act.</p> <p>Act Aug. 8, 1890 (26 Stat. 313), commonly known as the “Wilson Act,” goes no further than to permit the police laws of a state to be applied to liquors which have been shipped into the state as an article of interstate commerce after such liquors have reached the end of the shipment and have been delivered to the consignee.</p>

<p>L Indictment — ¡Construction.</p> <p>In construing an indictment based on Rev. St § 5440, for conspiring to defraud ¡the United States, on demurrer, under the liberal rule required by section 1025, which provides that án indictment shall not be deemed insufficient by reason of any defect of form which shall not tend to tlie prejudice of the defendant, a statement, in the first count, of the general scheme of the conspiracy, its purpose, and the intended manner of its accomplishment, and of the powers of one of the alleged conspirators ‘as an officer of the United States, must be read into every count, whether it describes a conspiracy or an overt act 1 *</p> <p>2. Conspiracy to Defraud United States — Sufficiency of Indictment. ■</p> <p>A conspiracy to defraud the United States is punishable under file statute, notwithstanding the fact that the scheme, to defraud wa,s originally devised and entered into at a time so remote that a prosecution for acts then dorte would be barred by limitation, when it was eóñtinuous in its operation,1 and overt acts have been committed thereunder within the period of limitation; and an indictment, which, after reciting the original scheme, charges a conspiracy at a later date to apply it, in pursuance of which overt .acts were committed, is not objectionable on the ground of duplicity. ' , .</p> <p>S. Same — Elements of Offense.</p> <p>It is not necessary, in charging a conspiracy to defraud the United States, under Eev. St. § 5440, to aver that it succeeded, but the crime is complete when the conspiracy is shown, and that one or more of the parties have done some act to effect the object of the conspiracy.1</p> <p>4 Same — Description of Offense — Overt Acts.</p> <p>A count in an indictment for conspiracy to defraud the United States, which charges as an overt act done in pursuance of the conspiracy the knowing and willful presentation and payment of false and fraudulent claims against the United States, is not insufficient because it does not specify the particulars in which such claims were fraudulent; the only purpose of such count being to show that the unlawful agreement was carried into actual operation.</p> <p>8. Same.</p> <p>A charge in an indictment that defendants conspired with an engineer officer in charge of government work to defraud the United States by obtaining through such officer contracts by which they were to be paid high prices for inferior work; that large amounts of useless and unnecessary work were to be done and paid for; that such officer was to exercise the powers of his office fraudulently and corruptly in favor of the contractors in such contracts as might be so obtained by the conspirators by approving and accepting the work so fraudulently done,— is supported by averments of overt acts in presenting for payment to such officer a false and fraudulent claim against the United States for work done, pursuant to such conspiracy, and in the approval and payment of such claim by the officer, although it is further averred that such claim and payment were made under a contract antedating the alleged conspiracy, the conspiracy alleged being broader than one for the purpose alone of obtaining a contract and extending to the manner of conducting the work generally, and the obtaining of payment therefor.</p> <p>8. Same — Presenting Fraudulent Claim — Sufficiency of Indictment.</p> <p>An indictment under Eev. St § 5438, for conspiracy to defraud the government of the United States by obtaining the allowance and payment of a false and fraudulent claim, which charges as the overt act the presentation of such claim, must state the particular facts showing the fraudulent character of the claim, and a general averment in the language of the statute that it was fraudulent is not sufficiently specific.</p>

In Equity. The Provident Savings Life Assurance Society of New York filed Its bill against Ernest M. Loeb and the widow and heirs of Robert McNamara.

<p>1. Bankruptcy — Pleading and Practice — Partnerships — Individual Discharge-Separate Petitions and Adjudications.</p> <p>Where the members of a partnership, which files a voluntary petition in bankruptcy, desire discharges from their individual as well as firm liabilities, they should each file an individual petition, separate orders of adjudication and of reference should be made as to each partner and as to the firm, and all further proceedings should be conducted as though there were separate cases as to each partner in addition to the partnership case.</p> <p>8. Same — Fees.</p> <p>Bankr. Act 1898, § 52a, provides that clerks shall receive, as full compensation for their services to “each estate,” a certain fee; sections 40a and 48a provide that referees and trustees shall receive a certain fee “in each case”; and section 5, relating to partnership estates, treats of them as separate from those of the individual partners. Held, that where members of a partnership, which filed a voluntary petition in bankruptcy, sought and received discharge from their individual as well as firm liabilities, the clerk, referee, and trustee, respectively, were entitled to separate fees, as though there were separate and distinct cases as to each partner in addition to the partnership case, although no individual petitions were filed, and in other respects the case was improperly treated as a single matter.</p>

On Motion to Remand to State Court. This suit was commenced in the state court of Lincoln county, Nev., September 28, 1901, against “the estate of Aaron Winters, deceased, J. O. Mc-Glanahan, executor of the last will and testament of said Aaron Winters, deceased, Alexander Falconer, the devisee and beneficiary in and of said last will.

<p>1. Federal Courts — Jurisdiction.</p> <p>Where suit for the foreclosure of a railroad mortgage was instituted-in the federal court, and such court had appointed a receiver, and the railroad had been sold under such proceedings, the court had jurisdiction of an intervention by a creditor having obtained a judgment in a state court to determine priority of such judgment, as a lien on the property of the railroad.</p> <p>2. Same — State Court — Decision—Res Judicata.</p> <p>Where a state court has determined that an action against a railroad company to recover a judgment, which shall be a preferred lien on the railroad’s property, for injury to the property of the plaintiff, was brought within one year, as required by the statute creating such lien, the federal court will not review such question on a subsequent intervention of the judgment creditor, in proceedings to foreclose a mortgage on the railroad, to establish such judgment as a preferred claim.1</p> <p>8. Railroads — Injury to Property — Damages—Liens—Statutes—Repeal.</p> <p>Sand. & H. Dig. Ark. § 0251, declared that certain persons performing work, labor, and furnishing materials, machinery, or equipment for the operation of a railroad, and all persons sustaining. loss or damage to person or property, for which a liability may exist at law, should have a preferred lien on the road, equipments, etc. By Act March 31, 1899, such section was amended so as to include other persons than those provided for in the original act; but that part of the statute giving a preferred lien for damages to person and property was reincorporated in the amending act in the same words as it previously existed, and by section 4 of the amending act all laws in conflict therewith were repealed. -Held, that the latter act was only a continuation of the former in so far as injuries to property were concerned, and was not a repeal thereof in so far as rights previously accrued Were concerned.</p> <p>4. Same — Constitutional Law — Vested Rights.</p> <p>Sand. & H. Dig. Ark. § 6251, declared that all persons who suffer loss or damage to person or property from any railroad, for which a liability may exist at law, should have- a preferred lien therefor on the roadbed, etc. Held, that a person having a claim for damages to property, and having brought suit for the recovery thereof, before Act March 31, 1899, was passed, by which such section was amended, acquired a vested right in the lien provided by such statute, which the legislature had no power to devest by the subsequent act.</p>

Petition for writ of mandamus, under the interstate commerce act, on relation of Spencer Kellogg and another. On demurrer to petition.

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

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

<p>Collision — Steamer at Rest — Passino Tus with Tow.</p> <p>An incoming British steamship in charge of a licensed pilot stopped off the quarantine station in the Delaware river in the usual place, which was near the western side of the channel, to undergo the customary medical inspection. She did not anchor, and it was not customary to do so.- While so lying, with the quarantine flag up, and while the examination was being made, a tug came down the river with two heavily laden scows without rudders in tow on a line some 1,400 to 1,600 feet long. Each vessel saw the other when a mile distant, and the tug understood the position of the steamship and the purpose for which she had stopped. The tug was properly on the westerly side of the channel, but there was ample room for her to pass to the eastward of the steamship, so as to avoid any danger of collision. She passed so close, however, that both of the scows sheered, and struck the steamship, which had not moved, and injured her. Held, that the tug was solely in fault for the collision in failing to keep at a safe distance in passing.</p>

On Demurrer to the Jurisdiction. This is an action of unlawful detainer for the possession of a block of ground and dwelling house thereon situated in the city of Pine Bluff, Ark., alleged to have been rented by the plaintiff, a citizen of Alabama, to the defendant, a citizen of Arkansas, for a monthly rental of $25 from May 1, 1901, to December 1, 1901.

<p>1. Savings and Loan Associations — Mortgages—Foreclosure—Complaint— Equity.</p> <p>A complaint by a savings and loan association to foreclose a mortgage was without equity, where it appeared that in order to procure the loan the mortgagor was required to subscribe for stock, and that the withdrawal. value of the stock, plus the premiums paid by the mortgagor, etc., more than equaled the face of the loan, and that the interest paid on the average balance due on. the loan amounted to about 12 per cent.</p> <p>2. Same — What Law Governs in Determining Whether Complaint Has Equity.</p> <p>Whether the complaint was without equity was not determinable by the laws of the state where the association was organized, but according to the law of the forum.</p>

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

<p>Notes — Varying by Orar Agreement.</p> <p>A note promising to pay a certain sum at a certain time is varied by contemporaneous oral agreement that the payee and another might pay themselves that amount out of such funds as might be derived from operation of mines, which they agreed to operate if the maker did certain things, 1</p>

In Equity. On application for temporary injunction. The defendant objects to the granting of the temporary injunction upon two grounds: First, that it comes within the inhibition of section 720, Rev. St.; and, second, that the bill is demurrable also upon the ground that the judgment creditors are not made parties to this bill, although they are indispensable parties.

<p>1. Negligence — Prima Facie Evidence — Falling op Vessel in Dry Dock.</p> <p>Where it is shown that a yacht which was very sharp in form, and others of similar construction, had been frequently and safely raised and lowered on dry docks, held in position only by blocks, without shoring, the falling and injury of such vessel as she was being lowered from a dry dock in which she had been placed for repairs, and when supported by blocking, is prima facie proof that she was negligently placed or handled by the owner of the dock, who owed the duty of ordinary care and skill in the premises; and such proof must be met by evidence of some unusual or abnormal condition existing, to exonerate him from liability for the injury.</p> <p>8, Same — Evidence Considered.</p> <p>Evidence considered, and held insufficient to support the claim of the owners of a dry dock that the falling of a vessel supported therein by blocking resulted from the giving way or springing of her plates, or to overcome the presumption of negligence arising from libelants’ evidence.</p>

On Appeal by Importer from a Decision of the Board of General Appraisers affirming the classification for duty by the collector of certain imported merchandise.

<p>1. Chinese Laborer — Registration—Proceeding to Deport — Jurisdiction.</p> <p>Under 27 Stat. 25, and 28 Stat. 7, providing that a Chinese laborer proceeded against for remaining in the United States without being registered shall be taken before a United State's judge, such a laborer was first taken before a commissioner, where the testimony was taken without objection. From his decision such laborer appealed to the judge, making no objections to the findings of facts. Held, that he thereby impliedly assented to a hearing before the judge on an agreed statement of facts, and the court had jurisdiction, whether it be considered an original proceeding, or as an appeal from the commissioner.</p> <p>8. Same — Laborer's Certificate — Inability to Obtain — Merchant.</p> <p>Acts 1892, § 6 (27 Stat. 25) as amended by Acts 1893 (28 Stat. 7), provides that a Chinese laborer found in the United States without a laborer’s certificate shall be deported on failure to obtain such certificate within a certain time after the passage of the act unless by reason of accident, sickness, or some unavoidable cause, he was unable to secure his certificate. A Chinese merchant, lawfully in the United States from 1892 to 1894, afterwards became a laborer. Held, that he could not thereafter be deported, since he was not able to procure a certificate within the time stated in such act; not being at the time a laborer, and entitled to a laborer’s certificate.</p>

<p>In Admiralty. Action in rem by John Bryan for personal injury.</p>

<p>t. Collision — Steam Vessels Crossing — Agreement by Signal.</p> <p>A vessel which assents by sighal that another shall cross her bows cannot urge the attempted maneuver as a fault, though it results in a collision.</p> <p>8. Same — Failure to Keep Lookout.</p> <p>A steam vessel which did not have a proper lookout, as required by the rules, cannot be exonerated by the court from fault for a collision, unless it appears that she could not possibly have avoided the accident, even if the lookout had been in his place.1</p> <p>8. Same — Passing too Close to Piers in Hudson River — Failure to Maintain .Lookout.</p> <p>A tug with a large and long car float on her side was passing up the west side of the Hudson river, unnecessarily near the ends of the piers, which were only about 100 feet distant, when a collision occurred between the float and another tug, which came out from a slip behind a pier which obstructed the view. The latter had no lookout except the-pilot, who was in the wheel house, 30 feet from the stem, and the tug, with the tow, was not seen by him until he passed beyond the end of' the pier. At that time he was in close quarters, with the tug and tow only about 150 feet away, and his attempt to cross their bows as agreed by signal, while perhaps the only maneuver then practicable, resulted-in the collision. Held, that the presence of a lookout in the proper position might have enabled such tug to avert the collision, and that both-tugs were in fault.</p>

<p>Bankruptcy — Preferences—Discount of Debtor’s Note.</p> <p>Wliere a note given upon an account has been discounted before maturity in the usual course of business, even with the indorsement of the payee, and the proceeds thereof have been applied to the debtor’s account, it should be regarded as a payment of money by the debtor as of that date, provided it does not appear that the note thereafter came back to the payee for failure of the maker to meet the same; and the amount so received through the discount of the note constitutes a preferential payment, which the creditor is required to surrender before he can prove against the estate of the debtor in bankruptcy other items of indebtedness created prior to the discount, but does not affect his right to prove those created thereafter though before the note was paid to the transferee.</p>

Criminal Prosecution. On demurrer to indictment. The following is a copy of the indictment: United States of America, Middle District of Pennsylvania — ss. In the District Court of the United States, in and for the Middle District Aforesaid, at the November Term Thereof, A. D. 1901.

<p>1. Admiralty Jurisdiction — Suit for Wharfage — Domestic Vessels.</p> <p>A suit to recover wharfage from the owner of a domestic vessel is maritime in its nature, and within the jurisdiction of a court of admiralty.</p> <p>2. Wharves — Liability for Wharfage — Anchoring in Private Slip.</p> <p>Vessels which enter and use a slip or basin belonging to a private person, and used for the purpose of storing vessels, cannot escape the payment of wharfage to the owner by disregarding the dock provided by him for mooring vessels therein, and either anchoring or tying to another dock that has no right to receive vessels floating in such basin, where the owner of the vessels has notice that wharfage will be charged.</p> <p>3. Same — Vessel Subject to Wharfage — Oyster Float.</p> <p>A float used as a receptacle for oysters unloaded from other boats, which has the form of a boat and is navigable, Is subject to a charge for wharfage.</p> <p>4 Same — Rates of Wharfage — 1{ew York Statute.</p> <p>The penalty of double wharfage rates imposed by Laws N. Y. 1897, c. 378, § 859, on a vessel leaving a wharf or slip without paying the dues therein fixed, when the same are demanded, does not apply to vessels in the clam or oyster trade, which are separately provided for by section 860.</p>

<p>Marine Insurance — Construction of Policy — Inchmaree Clause.</p> <p>A time policy of marine insurance on a new lake steamboat contained the Inchmaree clause, providing, inter alia: “This insurance also specially to cover loss of, or damage to, the hull or machinery, * * * through any latent defect in the machinery or hull, provided such loss or damage has not resulted from want of due diligence by the owners.” The vessel was constructed by builders of the best reputation, under competent supervision, and no expense was spared by the owners to make her reasonably perfect. At the end of one of her first voyages the engine bedplate was found to be cracked, and it subsequently became necessary to replace it. The injury was due to a latent defect in the casting, not discoverable until it was broken up, which the evidence tended to show was brought to the surface, fracturing the plate, by an unusual shock to the engine caused by a small quantity of water getting into the cylinders. Held, that such defect, while it existed when the policy was written, was not one which rendered the vessel unsea worthy in the ordinary sense, to prevent the attaching of the policy, and that under its provisions the insurer was liable for the damage, 1</p>

<p>In Equity. Suit on municipal bonds. On exceptions to master’s report.</p>

<p>Collision — Steamship and Pilot Boat — Failure of Ship to Stop Headway to Take on Pilot.</p> <p>A pilot boat in approaching in the night a steamship which has signaled her desire for a pilot is justified in acting on the supposition that the ship has stopped her headway, as it is her duty to do, in order that the pilot may be put on board with safety and convenience, and where a collision results wholly from the fact that the ship has not done so, although she has had sufficient time, she will be held solely in fault.</p>

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

<p>Guardian's Sale — Illegal Object — Title op Purchaser.</p> <p>A purchaser at a guardian’s sale who pays nothing for his deed, but takes with an understanding that he will mortgage the property and re-convey it subject to the mortgage, — the object of the transaction being to circumvent the law prohibiting the mortgaging of a minor’s property, —cannot hold the property as against the minor, nor can his grantees with notice.</p>

<p>In Bankruptcy.</p>

<p>War — Suit for Adjudication of Naval Prize and Bounty — Publication of Monition.</p> <p>In a suit by tbe United States for tbe adjudication of a prize of war captured by a naval vessel and tbe rights of tbe captors to bounty under tbe laws, in wbieb the court acquires jurisdiction by designation of tbe secretary of tbe navy, although tbe publication of tbe monition has been made in technical compliance with the rules and practice of tbe court, a further publication will be ordered on application of tbe government, where it appears necessary to bring notice to all those who may be entitled to be beard, to be made not only in a local paper, but in such other as appears calculated to accomplish its purpose.</p>

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

<p>Execution — Property Subject to Sale — Interest in Land Under Colorado Statute.</p> <p>The owner of the title to mining claims made a deed for the same to B., who at the same time made a deed conveying the claims to a company which had contracted for their purchase. Both deeds were placed in escrow, to be delivered to the company in case certain payments were made; otherwise to be delivered to B. The company went into possession under the contract. ■Held, that under Mills’ Ann. Codes & St. Colo. § 2582, providing that “every interest in land legal and equitable shall be subject to levy and sale under execution,” B. had an interest in the property which was subject to levy and sale, since under the escrow agreement the deed to B. was, in any event, to be delivered and to become effective; making B., in legal effect, a vendor retaining title until payment of the purchase money by the purchaser.</p>

<p>1. Railroads — Fire from Locomotive — Evidence—Burden of Proof.</p> <p>Where fire is shown to have started from sparks from a passing locomotive, the burden is on the company, in an action for damages, to show that the locomotive was properly constructed, equipped, and operated.</p> <p>2. Same — Sufficiency of Evidence — Jury Question.</p> <p>Where it clearly appeared that a fire was started on the right of way of a railroad by a passing locomotive, which extended to and destroyed adjoining property, and the company, on the trial of an action against it, produced testimony, which was not directly contradicted, tending to show that the locomotive was properly constructed, equipped, inspected, and operated, held, that it was the province of the jury to determine whether the presumption of negligence, created by the starting of the fire, was overcome, since the jury had the right to weigh the testimony and to determine whether the witnesses for the company were credible.</p> <p>S, Same.</p> <p>The engineer and fireman, who were the principal witnesses for the company in an action for fire started by sparks from their locomotive, testified that, at the time or immediately after the locomotive passed the place where the fire was set, the front and rear dampers were closed; that the former had not been opened; that the screen netting in the smokestack was in place; that there was no opening in the ash pan through which fire could escape; that the steam was shut off; and that it was running on acquired momentum at the rate of 15 miles an hour. Plaintiff’s evidence tended to show that, before reaching the place where the fire started, the locomotive was climbing a grade under forced draft, and that it had acquired such a momentum that it could run a quarter of a mile up grade with steam shut off and dampers closed, which was contended to be negligent on a windy day, when in proximity to combustible materials. ‘Held, that the court could not say, as a matter of law, that the locomotive was properly operated.</p> <p>4. Same — Instructions.</p> <p>Where there was no evidence in an action against a railroad for setting a fire by its locomotives that the fire started on plaintiff’s land, outside of furrows plowed by him on the margin of the right of way, and where he had directed defendant’s sectionmen not to burn grass outside the furrows, it was not error to modify an instruction requested by defendant, that plaintiff could not recover if the fire caught outside of the furrows, by the additional requirement that it must also appear that the •train was properly managed.</p> <p>& Same — Directions to Sectionmen.</p> <p>A direction by the owner of land adjoining a railroad right of way to railroad sectionmen not to burn grass on his land, but which does not direct them not to remove the grass In some other way, does not relieve the company from liability for setting fire thereto by its locomotives.</p> <p>8. Same — Instruction—Velocity op Wind.</p> <p>An instruction in an action for fire started by sparks from a locomotive that the velocity of the wind might be taken into consideration was not erroneous, in failing to state how and in what manner the velocity of the wind could be considered.</p>

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

This is an action of ejectment to recover certain lands situated in Clay county, Mo., described as the N. E. % of section 20, township 51 N. of range 31 W., except a part thereof which lies south and west of a public road, running from Liberty, in said county, to Liberty Landing. Both parties claimed title under Joel Turnham, a common source of title, who was seised and possessed of the land in question on and prior to January 17, 1855.

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

During the month of April, 1898, William Cameron, the testator of the appellees, owned a large lumber manufacturing plant at Bowie, La., consisting in part of a sawmill and machinery; two patent dry kilns; two large dry-shed buildings, with elevated covered cooling platforms, with car tracks thereon connecting the dry kilns with the dry sheds; a large planer building and machinery, adjoining one of the sheds; a store building and contents; with a large stock of upper grades…

<p>Patents — Anticipation—Wagon Jacks.</p> <p>The Emons patent, No. 463,599, for a wagon jack, Is void for anticipation, especially by ,tke device of the Baillie patent, No. 310,973, which contains all the elements of the Emons device, the only material change made in the latter being that the fulcrum rod of the lever is pivoted upon the base of the standard instead of upon a ring frietionally secured to the standard itself, which was an obvious mechanical modification, and was, moreover, disclosed by the prior patents to Bratschie & Epperson.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal from an interlocutory decree sustaining the eighth claim of letters patent No. 383,258, granted May 22, 1888, to John W. Sutton for a machine for plucking furs, and adjudging said claim to be infringed by the appellant. The opinions of Judge Townsend, in the court below, will be found in (C. C.) 95 Fed. 474, and (C. C.) 108 Fed. 82. The opinion of Judge Wheeler will be found in (C. C.) 98 Fed. 297. The errors assigned present all the questions relating to the validity and infringement of the patent.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from an order granting a preliminary injunction restraining the appellant from infringing the eighth claim of letters patent No>. 383,258, granted to John W. Sutton, May 22, 1888, for a machine for plucking furs.</p>

This is an appeal from an order granting a preliminary injunction restraining the appellant from infringing the eighth claim of letters patent No. 383,258, granted to John W. Sutton, May 22, 1888, for a machine for plucking furs.

This was an appeal from a decree adjudging invalid for lack of patentable invention letters patent No. 392,961 for a valve, issued to Charles Lynch, November 13, 1888.

Missouri. The. Simplex Hallway Appliance Company, the complainant, below and the appellant in this court, is the owner of letters patent No. 565,481, issued August 11, 1896, to Waldo H. Marshall, as assignor to William V. Kelley, and' is also the owner of letters, patent No. 593,410, issued November 9, 1897, to, Carl, E. Bauer; assignor to William V. Kelley.

In Equity. Suit for infringement of letters patent No. 383,258, issued to John W. Sutton, May 22, 1888, for a machine for removing the hairs from fur skins. On final hearing.

In Equity. Suit for infringement of letters patent No. 315,408, issued April 7, 1885, to Oscar Hammerstein, for a machine for cutting cigar wrappers. On rehearing.

<p>In Equity. Suit for infringement of letters patent No. 424,314, for a burr wheel for knitting machines, granted to Peter S. Kinsey March 25, 1890. On final hearing.</p>

In Equity. Bill in equity alleging that the Piscataqua Fire & Marine Insurance Company was duly incorporated by certain statutes of Maine, originally as a mutual company; that afterwards a provision was made for a guaranty capital; that in 1865 the plaintiff insured his steamer Russia with the company In the sum of $5,000, and that the vessel was totally lost, of which due notice and proof was given to the company; that the loss has not been paid; that in 1866 the plaintiff…

<p>1. Execution — Sale—Redemption.</p> <p>Code Civ. Proc. Cal. § 703, requires the sheriff, after having made an execution sale, to receive the amount due on the judgment, with the statutory interest, and execute and deliver to the debtor an acknowledged certificate of redemption, which, when filed of record, is declared to effect a termination of the sale, and restores the debtor to his estate in the property sold. Held, that where a judgment debtor, within the time for redemption, tendered to the sheriff the amount demanded by iiim for redemption, and received and filed the certificate of redemption, the redemption was effectual, notwithstanding an error of the sheriff in computing the amount, the debtor having acted In good faith and paid the additional sum due on demand to the sheriff, 1</p> <p>3. Mines and Mining — Location op Claims — Description.</p> <p>Eev. St. § 2324, provides that the location of a mining claim must be distinctly marked on the ground, so that its boundaries can be readily traced, and that all records of such claim shall contain such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. 'Held, that a claim, marked by a blazed tree at the point where the notice of location was posted, and on one of the boundary lines, and three corner stakes placed at stated distances from the notice and from each other, and the distance of the lines leading to and from a corner, at which no stake was placed, was accurately stated, was sufficiently designated to enable a surveyor to ascertain the exact limits of the location, and was therefore sufficient.</p>

<p>Lynn Helm and Lee, Scott, Bailey & Chase, for complainant.</p> <p>W. B. Mathews, Le Comte Davis, and W. R. Bacon, for defendant.</p>

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

<p>Trade-Masks — Transfer of Right to Use — Formation of Partnership.</p> <p>When a trade-mark or trade-name is owned by one who enters Into a partnership with another for the manufacture of the article designated, the title to the trade-mark does not pass to the partnership except by express agreement; nor does an agreement made on retirement of the owner from the firm, that the other partner may continue the manufacture of the article with the trade-mark thereon, conditioned that he will furnish the same to the retiring partner at a fixed price, which is about the cost of manufacture, and will not sell to others at less than a stated advance over such price, give the remaining partner the right to use the trade-mark after he has ceased to comply with the agreement on his part.</p>

In Admiralty. Suit against tug to recover for loss of tow. On certificate from the district court for the district of Delaware.

<p>Collision — Steam Vessels Crossing — Confusion of Signals.</p> <p>A ferryboat and tug each helé in fault for a collision in East river for improper maneuvers and for changing signals for crossing, causing confusion in the management of both.</p>

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

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

<p>1. Interstate Commerce — Carriers—Indictment.</p> <p>Where a carrier is a corporation, not only the carrier itself, but the officers individually, are subject to indictment for violation of the interstate commerce act of February 4, 1887.</p> <p>2. Same — Pooling.</p> <p>Under Act Cong. Feb. 4, 1887, § 5, forbidding the pooling of freights or the division of earnings by competing railroads, either a distribution of property offered for transportation among different and competing railroads in proportions and on percentages previously agreed upon, or a money pool, whereby the aggregate or net proceeds of certain different and competing railroads are divided among them, is prohibited.</p> <p>8. Same.</p> <p>Any arrangement, oral or otherwise, or combination, which has for its purpose and eventuates in the pooling of freights of different and competing railroads, is within the prohibition of the interstate commerce act.</p> <p>4. Same — Immunity to Witness.</p> <p>Act Cong. Feb. 11, 1893, granting immunity to any witness for any offense concerning which he has given testimony before the interstate commerce commission is confined to the witness personally, and cannot be extended to include a corporation which he represents.</p>

<p>In Bankruptcy. On motion to dismiss petition and for allowance of counsel fees and damages.</p>

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

This was an action by the defendants in error, Lena M. Slater, and William F. Slater, Jesse R. Slater, Annie E. Slater, and Henry G. Slater, minors, surviving wife and children of William H. Slater, deceased, against the Mexican National Railroad Company (the plaintiff in error), to recover damages for the death of the deceased.

This ease arises from the filing of a bill in the circuit court by the district attorney of the United States for the Southern district of Ohio, by direction of the attorney general, against the defendants, to enjoin them from selling or shipping coal or coke into any state other than the one in which they reside, under or by virtue of a certain agreement set forth and attached to the bill.

Appeals from the Circuit Court of the United States for the District of Delaware.

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

In Equity. Suit for infringement of letters patent Nos. 30,518, 30,519, and 30,520, issued April 11, 1899, to Andrew L. Eaton, — each for a design for belt-fastener plates.

<p>Patents — Infringement—Hair- Clipping Machine.</p> <p>The Lee patent, No. 382,288. for a hair-clipping machine having ball hearings between the reciprocating cutter-plate and the cap, was not anticipated, and is valid. Claim 4 also held infringed.</p>

<p>In Equity. Suit for infringement of letters patent No. 497,489, granted to John P. Buchanan May 16, 1893, for a circuit-controlling' device.</p>

<p>t. Patents — Infringement—Profits and Damages Recoverable.</p> <p>Profits and damages recoverable for infringement of a patent must be limited to those directly and naturally arising from the invasion of complainant’s monopoly, and cannot be enhanced by the fact that the use of the infringing device as one element of a combination enabled defendant to sell the entire combination, which was not covered by the patent1</p> <p>A Same.</p> <p>Defendant built and sold air brake equipments for railroad cars, in which it used a valve infringing a patent owned by complainant, which covered the valve alone. The equipment consisted of a combination of devices, some of which were covered by other patents. Held, that the profits and damages recoverable by complainant must be limited to those arising from the sale by defendant of the valves alone, and could not include the profits made by defendant from the sale of the entire equipments, nor the damages caused complainant by the loss of profits which it would have made from the sales of such equipments, although It was found that, but for the use of the infringing valve, defendant’s equipments would not have been salable.</p>

In Equity. Suit for infringement of letters patent No. 599,477, issued February 22, 1898, to Emil Reisky, for an improvement in bowling apparatus. On motion for preliminary injunction, based on the decision of the circuit court of appeals for the Second Circuit, sustaining the patent sued upon in this case. Brunswick-Balke-Collender Co. v. Thum, 50 C. C. A. 61, 111 Fed. 904.

<p>Chinese — Right to Remain in United States.</p> <p>The fact that during the six months immediately following the passage of the Chinese exclusion act (Act Nov. 3, 1893; 28 Stat. 7) appellants were merchants, as defined in section 2 of said act, and therefore not required to apply to the collector of internal revenue for a certificate of residence, would not be conclusive of their present right to remain in the United States, where they afterwards left the country, disposing of whatever business they had during the six-months period, and without any proven intention of returning, and then returned and engaged in business as laborers.1</p>

<p>L Insurance — Cancellation of Policy.</p> <p>Plaintiff held a policy of insurance, issued by defendant company, which provided that it might be canceled by either party by giving the other five days’ notice. Defendant’s agent telegraphed plaintiff’s authorized representative to cancel the policy, confirming the notice by letter, stating that defendant insisted on immediate cancellation. Plaintiff’s representative delayed acting, and entered into correspondence with defendant and its agent, in an attempt to induce them to continue the policy in force; but the notice of cancellation was at no time withdrawn or modified, and a few days later defendant’s agent again telegraphed imperative instructions to cancel immediately. Thereupon plaintiff’s representative notified it of the cancellation and procured other insurance, but before the policy had been returned to defendant the property was destroyed by fire. •Held, that under the terms of the policy the first notice operated as a cancellation, and the policy ceased to be in force five days after its receipt..</p> <p>& Same — Return of Premium.</p> <p>Under a, policy of insurance, providing that it may be canceled by either party by notice to the other, and that In case of cancellation the unearned premium shall be returned “on surrender of the policy,” it Is not essential to the effectiveness of a notice of cancellation by the insured that the unearned premium be returned or tendered before the surrender of the policy.1</p>

<p>1. Corporations — Action against Stockholders — Conclusiveness op Judgment against Corporation.</p> <p>A judgment against a Kansas corporation, rendered in that state, is conclusive upon a stockholder in an action against him to enforce his individual liability under the constitutional and statutory provisions of the state, unless impeached for want of jurisdiction or for fraud and collusion in its procurement.1</p> <p>2. Judgment — Impeachment por Fraud.</p> <p>To impeach such a judgment sued on for fraud and collusion, where it is fair and regular on its face, the burden rests on the defendant to prove his allegations by evidence that is clear, precise, and indubitable, and such proof must establish fraud on the part of both plaintiff and defendant in the judgment. A finding against the validity of the judgment is not supported by evidence which leaves the question of fraud as to either of the parties to rest alone on suspicion or surmise, nor can any inference of fraud be drawn from the fact that no defense was made to the action, unless it is clearly shown that a valid defense existed.</p> <p>3. Same.</p> <p>Evidence considered, and held insufficient to warrant the submission to a jury of the question of the validity of a judgment attacked by defendants on the ground that it was procured through fraud and collusion.</p>

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

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

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

<p>1. Contract for Construction of Government Work — Construction — Waiver of Breach bv Officers.</p> <p>A contract for the construction of a dry dock for the United States required such construction to conform in all respects to the plans and specifications which were attached and made a part of the contract, and provided that such plans and specifications should not be changed in any respect except upon a written order of the bureau of yards and docks, and by written agreement between the parties. It further provided that the government should have a competent civil engineer in charge of the work, who should have the privilege of inspecting at all times the materials and work, with power to reject either materials or work deemed by him unsuitable or not in conformity with the contract or plans and specifications. ‘Held, that such engineer could not bind the United States by consenting to deviations from specific requirements of the specifications as to workmanship or materials, which fact the contractors were bound to know, and that no action or neglect of his or his subordinates could operate as a waiver or estoppel on the part of the government to relieve the contractors from liability for such departures from the requirements of the contract.</p> <p>2. Same — Effect of Acceptance — Ignorance of Defects.</p> <p>The contract further provided that the contractors should not be entitled to full and final payment until the dock had been tested by officers designated by the government, and accepted after their approval. Held, that an acceptance and payment of the contractors after such test did not conclude the government if made in ignorance of facts which, if known, would have led to a refusal to accept, and that, where the final test was made under conditions which did not permit structural departures from the specifications to be discovered by the officers making it, the government was not chargeable with notice of such defects, to preclude it from holding the contractors liable therefor on their subsequent discovery, because of the knowledge of or consent to the same by its engineers in charge of the work, who, as the contractors were bound to know, had no authority in the premises.1</p> <p>6. Same.</p> <p>The acceptance by the engineer, or his acquiescence as the work proceeded, and the final acceptance of the dock by the board of officers designated by the navy department, are important evidential facts tending to prove that the work and materials complied with the contract; but they are not of controlling effect, and neither such acceptance nor the payment of the contract price necessarily deprives the government of its right of action for a breach of the contract in material and substantial particulars.</p> <p>4. Same — Discharge of Surety — Modification of Plans.</p> <p>A surety for the performance by the contractor of a building contract, which provides that changes may be made in the plans and specifications by written agreement of the parties, is not discharged from liability by modifications so agreed upon which are not so extensive as to-radically change the contract and substitute a different one.</p>

This is an appeal from a decree of the district court, Eastern district of New York, in favor of libelants for damages sustained by breach of a charter party whereby the Helios was hired for one round’ trip to the West Indies, of about six weeks, to assist in salving cargo from the S. S. Framnes, which had been wrecked on Hogsty Reef,, one of the Bahama Cays.

<p>1. Bankruptcy — Involuntary Proceedings — Petition.</p> <p>A petition alleging payments to a creditor while insolvent as an act of bankruptcy is demurrable unless it further avers that such payments were made with intent to prefer such creditor over the other creditors of the defendant.</p> <p>2. Same.</p> <p>Averments in a petition in involuntary bankruptcy intended to show that the indebtedness of defendant to one of the petitioners was fraudulently contracted are impertinent, and, on motion therefor, should be stricken out.</p>

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

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

<p>In Equity. Suit for infringement of letters patent No. 655,440, granted to Frank G. Hobart, February 7, 1900, for a clutch mechanism. On final hearing.</p>

<p>In Equity. Suit for distribution of fund in court.</p>

In Equity. Suit for infringement of letters patent Nos. 381,968, 382,279, and 382,280, issued May 1, 1888, to Nicola Tesla, each relating to' electro-magnetic motors for the electrical transmission of power. On motion for preliminary injunction.

In Equity. Suit for infringement of letters patent No. 429,296, issued June 3, 1890, to B. C. White and James A. Boyd for a brick machine, No. 455,374, issued July 7, 1891, and No. 488,622, issued December 27, 1892, each to B. C. White for brick machines. On final hearing.

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

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

<p>L Contract — Breach—Action for Damages.</p> <p>Defendant was a builder of electric elevators, and plaintiff was the inventor of a safety device for use in such elevators. The parties entered into a contract by which defendant agreed to build in its shop an apparatus for giving the device a thorough test, and, if it proved satisfactory, to equip an elevator therewith, and to recommend it to its customers, plaintiff to assist in preparing for and making the tests. Before their completion, defendant sold out its business, and abandoned the contract, because it had thus disabled itself from carrying it out, and not because the tests were unsatisfactory. Held, that plaintiff was entitled to recover as damages for breach of the contract the value of his time lost and expenditures incurred in and about the tests.</p> <p>9. Evidence — Statements Binding Corporation.</p> <p>Plaintiff had a contract with defendant corporation, and on a number of occasions called at the office of defendant’s president in regard to it. On some of these occasions the president was absent, and his son had charge of the office, and plaintiff had conversations with him in relation to the matter. After defendant had abandoned the contract, plaintiff wrote the president in regard to it, and received a visit from the son, who stated that he came at his father’s request in relation to the letter to see if a settlement could not be made. Held, that in an action for breach of the contract plaintiff was entitled to prove statements made by the son on such occasion, which were admissible to the same extent, and entitled to the same weight as against defendant, as would have been statements made in a written answer to plaintiff’s letter.</p>

<p>In Admiralty. Suit in rem against a tug to recover for injury to a tow by grounding.</p>

<p>In Equity. Suit for accounting. On bill, answer, and replication, and on motion for reargument.</p>

<p>In Equity. Creditors’ suit. On demurrer to bill. See (C. C.) 99 Fed. 321.</p>

<p>1. Vendor and Purchaser — Innocent Purchaser — Assignee of Executory Contract.</p> <p>An assignee of an executory contract, giving an option to purchase lands, does not occupy the position of an innocent purchaser, but takes only the rights of his assignor, either as against the vendor or third parties.</p> <p>2. Equity — Right to Relief — Claim Arising Out of Fraudulent Contract.</p> <p>Complainants falsely assumed to be agents for the owner of a tract of land, and to have authority to sell the same for a certain price per acre. Their scheme was to sell the land secretly for a greater price, pay the owner the price demanded by him, and retain the excess. In this scheme they associated one of defendants with them to assist in making the sale. Such defendant procured an option from the owner for the purchase of the land himself, and assigned the same to his co-defendant, who made the purchase. Held, that complainants’ scheme was in fraud of the rights of the owner of the land, whom they assumed to represent as agents, and they had no standing in equity to maintain a suit to require an accounting from defendants of the profits realized from the lands, on the assumption that a trust relation existed between the parties.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause domes here upon appeal from a decree of the district. court, southern district of New York, dismissing the libel. The libel was filed to recover damages by water to 82 bales of wool carried by the steamship Ontario from London to New York. The damage was caused by a leak in a ballast tank upon which, properly dunnaged, the wool was stowed. The precise cause of the leak was the giving way of two rivets about eight inches apart on the top of the tank. Through the holes thus left the water found its way and, being somewhat obstructed by the planking on top of the tank and by the swelling of the boards which covered the limbers, accumulated sufficiently to swash up above the dunnage.</p>

<p>1. Limitations — Action to Enforce Statutory Penalty.</p> <p>An action to charge directors with liability for a debt of the corporation, under a state statute, because of their having declared dividends when the corporation was insolvent, is one to recover a statutory penalty, which under the statute of Oregon (1 Hill’s Ann. Laws Or. p. 136) must be brought within three years after the cause of action accrues.1</p> <p>2. Same — Accrual of Cause of Action — Action to Enforce Statutory Liability of Directors.</p> <p>Under 2 Hill’s Ann. Laws Or. § 3231, which provides that directors of a corporation who declare and pay dividends when the corporation is insolvent “shall be jointly and severally liable for the debts of the corporation then existing or incurred while they remain in office,” the right of action of a creditor entitled to enforce such provision against the directors accrues on the maturity of his claim against the corporation.</p> <p>8. Same — Renewal of Certificate of Deposit.</p> <p>The issuance by a bank of a certificate of deposit for the amount of a former certificate, which has matured, does not create a new debt, but merely operates to extend the time of payment of the old debt, and a right of action in favor of the holder against directors of the bank, who under the statute have previously become liable for the payment of any debt “then existing or incurred while they remain in office,” accrues at the time of the maturity of the certificate existing at the time the penalty was incurred, and not on the maturity of the new certificate.</p> <p>4. Pleading — Reply—Denial of New Matter in Answer.</p> <p>An allegation in an answer, in support of a plea of limitation, that the certificate of deposit sued on was issued by the bank in renewal of a prior indebtedness evidenced by a certificate which had matured and on which the exact amount of the new certificate was then due, and not for an indebtedness then created, is not sufficiently traversed to raise an issue by an allegation of the reply that the old certificate was surrendered and received with the understanding and agreement between plaintiff and the bank that it should constitute a new deposit, and such allegation was properly stricken out as immaterial.</p> <p>5. Same — Motion fob Judgment on Pleadings — Insufficient Denials.</p> <p>Under the provision of 1 Hill’s Ann. Laws Or. § 94, that “every material allegation of new matter in the answer not specifically controverted by the reply shall, for the purpose of the action, be taken as true,’’ where facts were alleged in an answer which supported a plea of limitation, and such allegations were not specifically denied in the reply, defendant was entitled to judgment on the pleadings.</p>

<p>1. Marine Insurance — Construction of Policy — Master’s Draft.</p> <p>An open policy of marine insurance provided for insurance from time to time “on advances and for disbursements secured by master’s draft pledging vessel and freight.” A certificate was issued thereunder covering advances made by insured on a master’s draft for disbursements, which did not itself pledge the vessel or freight, but when negotiated by the Insured the managing owner of the vessel gave a writing, which was attached to the draft, making it payable from first freights received at port of destination, and pledging vessel, owners, and-freight for its payment. -Held, that such writing became a part of the draft, the pledge made being within the authority of the managing owner, and brought it within the terms of the policy, notwithstanding the fact that it also pledged the personal credit of the owners.</p> <p>2. Same — Insurance of Collateral.</p> <p>In such case the insured was under no obligation to sue the owners before resorting to the insurance, which covered his collateral pledge of the vessel and freight, where the same was lost through perils of the sea, which was a risk insured against</p>

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

<p>L Eminent Domain — Title Acquired by Condemnation Proceedings — Laws of Ohio.</p> <p>The appropriation of land by a city for park purposes through condemnation proceedings, as provided by Rev. St. Ohio § 2515-28, does not vest the city with the fee, but the estate taken is limited to an easement for the purposes intended, and on the abandonment of such easement the land reverts to the owner from whom it was acquired or his successor in title.1</p> <p>Í. Same — Reversion—Abandonment of Easement.</p> <p>The condemnation of right of way for a railroad over lands previously condemned by a city for park purposes does not effect an abandonment by the city of its easement so as to work a reversion of the land to the owner of the fee.</p> <p>t. Same — Right to Compensation — Owner of Naked Fee.</p> <p>The owner of the fee to lands, an easement in which has been ac. quired by a city for park purposes through condemnation proceedings, on the condemnation by the city of right of way for a railroad across the lands may maintain an action against the railroad company to recover compensation for the additional burden imposed upon his land by the new easement, and such damage, if any, as may result from the new use.</p>

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

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

<p>Appeal — Review—Questions of Fact.</p> <p>Where an equity cause was heard by the chancellor on testimony taken - in open court, very clear and palpable error must appear, to justify a reversal on the facts by the appellate court.</p>

On December 11, 1897, pursuant to resolutions and orders of its stockholders, the National Bank of Asheville, a body corporate, organized and ■established under and by virtue of the statutes of the United States known as the “National Banking Act,” by and through its proper officers, executed to W. B. Williamson a general deed of assignment assigning, transferring, and conveying to the said W. B. Williamson all its property, estate, notes, accounts, claims, evidences of…

<p>In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.</p>

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

, Appeal from an order granting an injunction pendente lite forbidding infringement of letters patent No. 448,072, granted to Arthur Pickard March. 10, 1891, for the construction of canals, and the operating of a so-called amusement canal under the name of “The Old Mill,” or any similar name.

In Equity. Suit for infringement of letters patent No. 330,067, issued to John A. Seely November 10, 1885, for telephone switch boards. On application for preliminary injunction.

In Equity. Suit for infringement of reissued letters patent No. 11,836, issued June 6, 1900, on original No. 351,589,-granted to Rucien Gaulard and John D. Gibbs for a system of electrical distribution. On demurrer to bill.

In Equity. Suit for infringement of letters patent No. 473,087, granted to Edmund Schade April 19, 1892, for a plane iron. On final hearing. This is an action founded upon'letters patent No. 473,087, granted April 19,' 1892, to the complainant, as assignee of Edmund Schade, for an improvement in plane irons.

<p>1. Attorneys at Law — Liability for Negligence — Inappropriate Action for Breach of Contract.</p> <p>A verbal contract, made by agents of a corporation in its bebalf, to employ plaintiff either so long as the agents should remain with the company or so long as the company should continue in business, was not one for such a definite term that attorneys employed by plaintiff to enforce his rights thereunder after his discharge were guilty of 'negligence because they brought an action to recover wages at the contract rate to the time of its commencement, instead of one to recover full damages for its breach.</p> <p>2. Same — Action for Damages.</p> <p>Plaintiff sued to recover damages alleged to have been sustained through the negligence of defendants as attorneys. The petition alleged that plaintiff had a contract with a corporation for his employment at stated wages during his natural life; that on his discharge he employed defendants to prosecute his claim against the company; that through negligence or gross ignorance of the law they brought an action to recover wages under the contract to that date,' and recovered, but that such recovery operated as a bar to any subsequent action, because the damages for breach of the contract were indivisible, and that a second suit brought by defendants failed for that reason. Plaintiff’s testimony on the stand failed to support his allegation as to the contract. He stated that certain agents representing the corporation agreed to employ him so long as they should be with the company, and again that they agreed that he should be employed so long as the company was in business. Neither did his evidence sustain the claim that his second suit failed because of the former recovery, but the record showed that it was dismissed because of his failure to comply with an order requiring him to give security for costs, after he had been granted leave to amend his petition. Held that, assuming that plaintiff stated his case to defendants in accordance with his testimony, they were not negligent in proceeding as they did, and that plaintiff’s evidence as a whole showed no ground of recovery which justified the court in submitting the case to the jury.</p>

<p>In Equity. Suit for infringement of trade-mark and for unfair competition. On final hearing.</p>

<p>1. Customs Duties — Construction of Statutes — Commercial Designation.</p> <p>The commercial designation of an article, when clearly established, and shown to have been definite, uniform, and general, will control, In the construction of a tariff statute.1</p> <p>8. Same — Evidence of Commercial Designation.</p> <p>While commercial designation for the purpose of tariff classification is that known and used by importers' and large dealers, and not that of the retail trade, a retail dealer is not for that reason incompetent to-testify upon the subject, but the weight to be given to the testimony of any witness depends upon his intelligence and knowledge of the subject, and a retail dealer may, from the magnitude of his business and purchases, be better qualified to testify than some importers.</p> <p>8. Same — Classification—Leghorn Citron.</p> <p>Leghorn citron, which has always been imported in substantially the same form and condition, has been commercially designated and classified by importers and wholesale dealers since prior to the tariff act of 1883 as a dried fruit, and is properly classified under paragraph 704 of that act (22 Stat. 519), placing in the free list “fruits, green, ripe, or dried, not specially enumerated or provided for in this act,” and not under paragraph 302 (page 504) as a “comfit, sweetmeat or fruit preserved in sugar.”</p>

<p>In Equity. On motion to dismiss for want of jurisdiction. See 104 Fed. 757.</p>

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

<p>On Exceptions to Master’s Report.</p>

<p>Appeal by Importer from Decision of Board of General Appraisers.</p>

<p>In Admiralty. Suit by seamen to recover damages for illegal imprisonment.</p>

<p>1. Shipping — Proceeding por Limitation op Liability — Loss op Cargo by Fire.</p> <p>In a proceeding by a shipowner in a district court for limitation of liability, the question whether a fire by which cargo was destroyed was caused by the design or neglect of such shipowner, so as to deprive it of the exemption from liability given by Rev. St. § 4282, if not previously adjudicated, will be determined by the court, and will not be left open to be determined by a jury in an action brought by the cargo owner for the purpose.1</p> <p>2. Same.</p> <p>Under Rev. St. § 4282, which provides that no owner of any vessel shall be liable for loss or damage caused to goods shipped by reason of fire on board the vessel “unless such fire is caused by the design or neglect of such owner,” the fact of such design or neglect must be affirmatively shown by a cargo owner to charge the shipowner with liability for a loss by fire.</p> <p>8. Same — Finding by State Court — Construction and Effect.</p> <p>A special finding by the jury, in an action in a state court by a cargo owner to charge a steamship company with liability for loss of goods by fire, that the goods were destroyed through the negligence of the defendant, will be given effect as conclusively establishing defendant’s negligence and liability in proceedings subsequently instituted by it for limitation of liability in a court of admiralty; but where under the laws of the state a corporation is chargeable with the negligence of its servants, so that the finding may have been based on the acts or omissions of the master or crew, it does not establish the fact that the loss occurred with “the privity or knowledge of the owner,” so as to deprive the company of the benefit of Rev. St. § 4283, giving it a right to limitation of liability for any loss occurring without its privity or knowledge, which must be that of its managing officers.</p>

<p>In Admiralty. Suit to recover for hire of scows and damages for their inj’ury.</p>

<p>In Admiralty. Suits for injury of a tug in collision and for the death of one of her. crew.</p>

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

<p>In Bankruptcy. On claim of mortgagee to proceeds of mortgaged goods.</p>

<p>Bankruptcy — Discharge—Concealment of Assets.</p> <p>Where a bankrupt omitted from his schedules money standing to his credit in bank, and on his examination at first denied that he had a bank account, and subsequently testified that it had been closed, and then claimed that the money belonged to his wife under a written trust agreement, which he failed to produce when requested, a finding was justified that he knowingly and fraudulently concealed the money from his trustee, and was debarred from the right to a discharge.1</p>

<p>Appeal Bond — Validity—Appeal Taken in Action at Law.</p> <p>An appeal will not lie from a judgment of a federal court awarding a writ of mandamus, which is at law; and where such an appeal was prayed for, and inadvertently allowed, a bond given thereon was a nullity, and did not operate as a supersedeas, nor was it based upon any consideration which could bind the parties thereto, either as a statutory or a common-law obligation.1</p>

<p>Vendor and Purchaser — Title of Bona Fide Purchaser — Unrecorded Contract.</p> <p>A bona fide purchaser of land for full value from the holder of the legal title cannot be affected by an agreement made by his grantor to hold the land in trust for another of which he had no actual notice, and which was not recorded until after his purchase.</p>

<p>1. Municipal Bonds — Estoppel bv Recitals — Bona Fide Purchasers.</p> <p>Where municipal bonds were sold in the open market for full value to purchasers who had no knowledge of any facts impairing their validity, the municipality is estopped to deny the truth of recitals therein stating the act authorizing their issuance, and certifying that “all acts, conditions, and things required to be done precedent to and in the issuing of said bonds have been properly done, happened, and performed in regular and due form as required by law”; and the bonds cannot be defeated unless they themselves, or the act under which they were issued, or both,' when read together, disclosed that they were issued without authority or not in conformity with law.1</p> <p>2. Statutes — Special Laws — Validity.</p> <p>Under Const. Kan. art. 2, § 17, prohibiting the enactment of a special law when a general law can be made applicable, as construed by the supreme court of the state, it is the province of the legislature and not of the courts to determine when a special law is necessary.</p> <p>8. Municipal Bonds — Conformity to Statute — Time of Payment.</p> <p>Under a legislative act authorizing and directing a township to issue bonds, and providing that they should be payable 20 years from date, and, at the option of the township, might be called in and paid at any time after 10 years, such bonds are not invalid because by their terms they were made payable in 20 years from the 1st of January preceding the date of their issuance, in March; the township reserving the right therein to pay them at any time after 10 years; the provision relating to time of payment being merely directory, except as imposing a limitation beyond which the bonds should not be made to run.</p> <p>4. Same — Mode of Execution.</p> <p>Under an act authorizing and directing a township board, which, under the law, consisted of the township trustee, clerk, and treasurer, to issue bonds, it is not essential to the validity of such bonds that they should be signed by all the members of the board; and they were properly executed by being signed by the trustee and attested by the clerk, with the seal of the township.</p> <p>5. Same — Effect of Recitals.</p> <p>Bona fide purchasers of township bonds containing recitals that all acts precedent to and in the issuing of such bonds had been done as required by law, and bearing the certificate of the state auditor that they were “regularly and legally issued,” and registered in his office, have the right to rely on the presumption that they were executed in pursuance of appropriate formal action of the township board.</p> <p>6. Same — Taking Effect of Act.</p> <p>An act authorizing a township to issue bonds, and providing that it should take effect “from and after its publication,” was in effect during the whole day of such publication, so as to render valid bonds issued thereunder and bearing that date, in the absence of proof of the hour when the publication was made and when the bonds were signed.</p> <p>7. Same — Dissolution of Township Issuing — Liability of Municipal Successor.</p> <p>Kearny county, Kan., Is the municipal successor of the old township of Lakin, in Einney county, and liable for the obligations of such township, under the decision of the supreme court of the state, which is conclusive on the county in a federal court.</p> <p>8. Jurisdiction of Eederal Courts — Amount in Controversy — How Determined.</p> <p>A federal court has jurisdiction of an action to recover on coupons from municipal bonds aggregating in amount over $2,000, exclusive of interest, where the claim is made in good faith, although a plea of limitations is sustained as to some of the coupons sued on, which reduces the amount of recovery below that sum.2</p>

<p>L Collision — Steamer and Sailing Vessel — Burden of Proof.</p> <p>In case of a collision between a steamer and a schooner, the steamer is presumptively in fault, it being her duty, under the rules, to keep out of the way; and the burden rests upon her, in order to avoid liability, to show that she took the proper precautions, and that they would have proved effective if the schooner had not changed her course.1</p> <p>& Same — Lookout.</p> <p>It is the duty of a steamer to have a trustworthy lookout, properly stationed, other than the officer of the deck or the helmsman; and the-absence of such lookout in ease of collision is prima facie evidence that the collision was caused by the steamer’s fault, and casts upon her the burden of showing that the presence of the lookout could not have avoided the collision.</p> <p>8. Same — Evidence Considered.</p> <p>A collision occurred in the night between a steamer and schooner, which met in the narrow channel of the Stono river, along the coast of South Carolina. The steamer had no lookout, except the pilot, who was acting as helmsman, and was a competent and experienced navigator in those waters. He saw the lights of the schooner when a mile or more distant, and from that time kept close watch of her. According to his testimony, which was corroborated, without conflict, by a number of other persons on the steamer, some of whom. were disinterested, when he approached nearer he gave a signal of one whistle, slowed down, and took the starboard side of the channel; the schooner then showing her red light. The signal was afterward repeated. On coming near the schooner, her red light disappeared, on which he at once reversed. Shortly after, the schooner’s green light was shown, and the collision-followed almost immediately. This testimony was not effectively contradicted by the witnesses for the schooner, iHelé that, upon such facts, the steamer was not chargeable with fault, but that the collision must.be attributed to a change of course by the schooner.</p>

<p>1. Railroads — Foreclosure of Mortgage — Priority as between Receiver’s Certificates.</p> <p>It is the duty of the court to pay indebtedness which it has authorized its receiver to contract in the administration of railroad property, before any indebtedness of the company, from the proceeds of the property, and receiver’s certificates representing such indebtedness are entitled to-priority of payment over those issued by order of the court for preferential debts of the company.</p> <p>2. Same — Construction of Decree.</p> <p>A provision of a decree foreclosing a railroad mortgage, and directing-a sale of the property, that the fund arising therefrom, after payment of costs, etc., shall be applied “(3) to the payment of all interventions or other claims heretofore or hereafter to be allowed * * * as superior to the lien of the bonds, * * * or, if the fund realized be not sufficient to pay the same,-then to the payment of the same pro rata,” does not apply to receiver’s certificates issued by direction of the court in payment of indebtedness it has itself contracted in the operation of the property, but should be construed as referring only to claims against the railroad company; and it does not put it out of the power of the court to thereafter deal with the question of the priority of such certificates under a general provision of the decree passing the cause “for further orders.”</p>

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

<p>1. Patents — Scope—Incidental Advantages of Invention.</p> <p>A patentee is entitled to all the uses and advantages of his invention, whether he knew of them or not.</p> <p>2. Same — Patentable Invention — Proof of Commercial Soccess.</p> <p>The fact that a patented device went at once into extensive public use, and bas continued therein, does not of itself conclusively establish either novelty or utility; but if, upon technical grounds, the matter is doubtful, it is persuasive evidence of those qualities, unless it appears that such commercial success was due to other causes.</p> <p>8. Same — Validity.</p> <p>It is no objection to the validity of a patent for an improvement in a physical, structure that its utility depends on the use of the structure in a particular manner, when such mode of use is described in the specification in terms intelligible to those skilled in the art</p> <p>4. Same — Invention—New Combination of Old Elements.</p> <p>If a new combination of old elements is such that it produces a new mode of operation, and a beneficial result, there may be a patentable invention;</p> <p>5. Same — Infringement—Changing Form of Parts in Combination.</p> <p>One does not escape liability for, infringement by changing the form or dimensions of' the parts of a patented combination, where such change does not Break up or essentially vary the principle or mode of operation pervading the original invention.</p> <p>6. Same — Grain Drills.</p> <p>The Packham patent, No. 557,8GS, for an improvement in disc grain drills, consisting of a shield extending below the end of the seed conduit, and in front- of the same, adjacent to the lower and rear portion of the disc, on its convex side, so as to stand within the angle of the furrow, and having its. front and lower edges bent inwardly and brought close to the- disc, — its purpose being to keep the furrow clear of obstructions from the land side until- the seed, has been dropped therein, and also to act as a guide for the seed, — was not anticipated, shows patentable invention, and is valid. Claims 1, 2, 3, and 6 also helé infringed by the device used by one of the defendants, and claims 1, 2, and 3 by that used by iLe Finer deiondant, which was that of the Mast patent, No. 615,727,</p>

<p>Abatement — Death of Plaintiff — Time for Revival.</p> <p>Where there has been no undue delay on the part of a plaintiff in the prosecution of a suit during his lifetime, upon suggestion of abatement by his death, his counsel will be allowed a reasonable time to take proceedings for a revival.</p>

In Bankruptcy. On review of questions certified by referee. , James Harlan and S. M. Sloan, each of whom were holders of notea waiving exemptions, commenced suits against Tune by attachment on February 15, 1802, to collect their debts, suits being returnable on the 22d day of February, 1902. Tune filed a voluntary petition on the 17th day of February, 1902, and the next' day was duly adjudicated a bankrupt. In his schedule Harlan and Sloan were listed as creditors.

<p>In Admiralty. Suit in rem to recover damages for loss of cattle in shipment.</p>

<p>In Bankruptcy. Review of referee’s decision allowing homestead exemption.</p>

<p>1. Equity — Grounds for Relief — Sufficiency of Petition of Intervention.</p> <p>The receiver of a railroad filed a bill in equity to enjoin the tearing up by another railroad company of a spur track connecting a brickyard with the main line of his road, alleging that his company had been in lawful and peaceable possession and use of such track for more than 10 years. The owner of the brickyard intervened for the protection of his right to the continued use of the spur track under a contract with the receiver’s company. His petition showed that the deed by which he acquired the property described the same as a brickyard, and that the spur track which was upon the land of his grantor then existed and was essential to the use of the property conveyed for brickyard purposes, iHeidi, that his petition was not demurrable because it also showed that his grantor in the deed reserved the right to sell the right of way subsequently purchased by defendant, and which crossed the spur track, such reservation being consistent with the continued maintenance and use of such track, and that when read in connection with the bill it stated grounds for equitable relief.</p> <p>2. Same.</p> <p>An intervention pro inter esse suo must be construed as pleading in connection with the averments of the original bill.</p>

<p>1. Vendor and Purchaser — Protection of Bona Fide Purchasers — Reversal of Decree on Bill of Review</p> <p>A testator left all his property to trustees for certain purposes, among which was the payfnent to his son’s wife, in case she should become a widow, without children, of an annuity sufficient to afford her a comfortable support during her widowhood. The son contested the will, and a decree was entered setting it aside and directing the trustees to convey the property to the son as heir at law, which they did. Thereafter the son sold all the property, his wife joining in the deeds for the purpose of relinquishing her right of dower. After his death a bill of review was filed by certain of the defendants in the suit, in which the decree was reversed, and the will was held valid. Thereafter the son’s widow filed a petition to charge the lands sold with the payment of her annuity under the will. 'Held■ that, as between her and the purchasers of such lands, who bought in good faith and for full value in reliance on the decree, the equity of the latter was superior, and their rights were not affected by the proceedings on the bill of review.</p> <p>2. Res Judicata — Matters Concluded.</p> <p>A decree rendered on demurrer is conclusive only on the issues joined by the pleadings;' and where a decree so rendered adjudged the validity of a will, which was the matter in issue, but the court in its opinion held that the will was inoperative as to certain bequests which had been revoked by a codicil, and that such bequests became intestate property, subject to a legacy previously charged by the will upon the whole estate, such decree cannot be pleaded as an adjudication of the rights of such legatee.</p> <p>8. Wills — Lands Charged with Legacy — Effect of Condemnation.</p> <p>Where land was regularly condemned for railroad purposes at a time when the legal title was in the executors and trustees of a testator, who were made parties, and to whom the compensation was paid, such land was released from liability for a legacy which was made by the testator a charge upon his estate generally</p> <p>4. Appeal — Finality of Decree.</p> <p>A decree fixing the amount of an annuity to which a legatee was entitled under a will, adjudging it to be a charge upon the lands of the testator, and appointing a receiver to collect the same from such lands, is not final and conclusive of the rights of the annuitant, where, during the same term, it was suspended as to certain purchasers of the lands and afterward a reference was made and a further hearing had, and an appeal from the decree subsequently entered brings up the entire case for review.1</p>

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

<p>Shipping — Construction op Bill op Lading — Special Demurrage.</p> <p>A clause of a charter party or bill of lading providing that, after arrival and notice to the consignee, the vessel shall have precedence in discharging over all vessels arriving or giving notice after her arrival, and stipulating for special demurrage in case of a violation of such provision, is in the nature of one for a penalty, which should not be imposed unless the case comes clearly within the purpose which it intended to accomplish; and where the original consignee of the cargo, to whom notice of arrival was given, refused to receive it, and the master was instructed by the shipper to deliver to another, the latter became from that time the consignee, for the purposes of such clause, and the special demurrage is not recoverable because precedence in discharging was given to another vessel, through the action of the original consignee, after its refusal to accept the cargo.</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 Northern District of Alabama.</p>

<p>L Railroads — Contract Restricting Location of Stations — Validity.</p> <p>A contract by which a railroad company agrees to establish and maintain a station at a particular place, and not to establish or maintain any other station within a certain distance therefrom, is contrary to public policy, and cannot be enforced in a court of equity; but it would seem that the illegality of the agreement should not deprive one who on the faith of it, and without wrongful intent, has conveyed valuable property to the company, of a remedy at law.</p> <p>¶1. See Contracts, vol. 11, Cent. Dig. § 570.</p>

The bill of complaint was filed by the Central Trust Company, a corporation of the state of New York, and the Southern Railway Company, a corporation of the state of Virginia.

<p>1. Indemnity Insurance — Construction of Contract — Warranties in Application.</p> <p>An application to a surety company for a bond to secure the faithful performance of his duties by the cashier of the applicant, a corporation, contained the following question and answer: “Will he receive remittances from customers on open accounts? If so, how often will you render customers a statement of balances due by them, and by whom will this be done? This should be done by some other person than the applicant, and is important as a means of verifying balances appearing on the ledger.” Answer: “Yes. Monthly by bookkeeper.” ¡Held, that such answer was not a warranty that such monthly statements should be delivered to the customers, or deposited in the mail, by the bookkeeper personally, but that it was complied with where such statements were made out by the bookkeeper, and deposited by him, in sealed envelopes, in the receptacle used for outgoing mail, according to the customary practice of the corporation’s business.</p> <p>2. Same.</p> <p>- Such application also contained the following question and answer: “It is suggested: (1) That all moneys and checks received be deposited intact in bank, and all disbursements be made either by check or from a petty cash fund drawn from the bank as required; and (2) that all checks received be indorsed ‘For deposit,’ to prevent any loss or conversion. To what extent will these practices be followed?” Answer: “Fully.” 'Held, that the employer complied with such warranty by adopting a regulation requiring all checks to be deposited, indorsed as therein specified, and by exercising reasonable supervision over its cashier to see that the practice was pursued; that the answer to such question could not be construed as an absolute warranty by the employer that its cashier would deposit all checks, properly indorsed, and to relieve the surety from liability for the failure to make such deposits, contrary to the employer’s regulations, and without its knowledge, where it exercised reasonable diligence in the premises, which would render the contract nugatory as one for indemnity.</p>

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

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

<p>Prosecution for Violation of National Banking Law. On motion for new trial.</p>

<p>In Bankruptcy. On petition of creditor to reopen and rehear the bankrupt’s claim to exemptions.</p> <p>Petition by Rowan, a creditor of Reese, a discharged bankrupt, to “bare the bankruptcy proceedings reopened and re-referred to the referee,” that Rowan may “have an opportunity to file exceptions to the claim of exemptions, that equity may be done the creditors, and for general relief.” The facts disclosed by the petition are as follows: Reese, the bankrupt, and Rowan are and were residents of Calhoun county, Ala. On February 17, 1902, Reese filed his petition, and next day was duly adjudicated a bankrupt. His debts did not exceed $500. Rowan was in the list of creditors scheduled. The bankrupt, in his schedules, claimed as exempt certain personal property and a homestead in Calhoun county, Ala.; being all of the property returned by him. The lands and property so claimed were duly set apart to the bankrupt as exempt. Reese was discharged the 27th' of March, 1902. On April 28, 1902, Rowan filed his petition, which admits he knew he had been scheduled among the list of creditors, averring “that he did not know that Reese was claiming all his lands as exempt to him; that he did not receive any notice that the same had been set apart to him and was subject to contest and exceptions; that he was unacquainted with the value of the lands at the time Reese filed his petition, and had no idea of their value; when he found out that Reese was claiming the lands as exempt, he commenced to inquire about them, and examined them as soon as he could, after he found that they had been set apart as exempt.” It is further alleged that the lands are worth from $2,500 to $3,000, and “that there are persons who would purchase the lands at those figures, so as to leave Reese two thousand dollars, the value of the homestead exemptions to which he is entitled,” and still leave an excess sufficient to pay in full the debts scheduled. The petition further avers “that petitioner has acted as diligently and timely in protecting his rights in the premises as the circumstances would permit.”</p>

<p>At Law. On exceptions to report of referee.</p>

<p>1. Bankruptcy — Preferences—Payments to Pledgee.</p> <p>Payments made on a note by an insolvent within four months prior to his bankruptcy, to an indorsee, who holds the note as collateral security for a debt of the payee, are payments to the payee, and must be surrendered by him before he can prove a further indebtedness against the bankrupt’s estate.</p> <p>& Same — Separate Claims — Debts Subsequently Contracted.</p> <p>Where a note, which covered all the then existing indebtedness of the maker to the payee, remains the property of the latter when further indebtedness is contracted, its payment thereafter, in whole or in part, while the debtor is insolvent, and within four months prior to his bankruptcy, is a partial payment on the entire indebtedness, of which it is a part, and constitutes a preference, which must be surrendered before the subsequent debts can be proved against the estate of the debtor in bankruptcy.</p>

<p>Bankruptcy — Provable Debts — Collection Pee Stipulated in Note.</p> <p>Under Bankr. Act 1898, § 63a, providing that “debts of a bankrupt may be proved and allowed against his estate which are (1) a fixed liability as evidenced by a judgment or an instrument in writing absolutely owing at the time of the filing of the petition,” etc., attorney’s fees stipulated for in a note “in case it shall be placed in the hands of an attorney for collection” cannot be proved as a part of the debt, where the note had not matured at the time of the filing of the petition in bankruptcy against the maker.</p>

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

<p>1. Federal Courts — Equity Jurisdiction — Suits to Quiet Title.</p> <p>A federal court of equity, though sitting in a state where by statute a suit to quiet title or to determine an adverse claim may be brought, regardless of possession, cannot entertain such a suit by the holder of the legal title unless the bill shows affirmatively either that complainant Is in possession, or that both complainant and defendant are out of possession.</p> <p>8. Same — Effect of Prater for Injunction.</p> <p>A federal court of equity is not given jurisdiction to try the title to a mining claim, where the bill does not show that complainant is without an adequate remedy at law, merely because an injunction is prayed for to prevent alleged trespasses by defendant, an adverse claimant, in removing ore from the claim.</p> <p>¶ 1. See Courts, vol. 18, Cent. Dig. § 907.</p>

<p>1. Collision — Steamer and Sailing Vessel — Burden of Proof.</p> <p>In case of collision between a sailing vessel and a steamer the presumption of law is that the steamer was in fault, and she has the burden of proof to establish the misconduct of the sailing vessel and her own. proper navigation, or-that the collision resulted from inevitable accident.</p> <p>2. Same — Evidence Considered.</p> <p>When a steamer was coming up the channel in Mobile Bay, she sighted a schooner about 1% miles distant on a tack which would take her across-the channel. The wind was light, and the schooner was not making more than two miles an hour. The schooner did not change her course, and, as she was crossing the channel, which was about 200 feet wide, she was struck by the steamer. The day was clear. Held, on the evidence, that no fault was shown on the part of the schooner, which had an equal right with the steamer in the channel, and that the fault was entirely that of the steamer, which might have avoided the collision by the exercise of proper care, and was in duty bound to do so.</p> <p>¶ 1. See Collision, vol. 10, Cent. Dig. §§' 54, 257.</p>

<p>1. Shipping — Master—Duty to Protect Seamen.</p> <p>It is the fluty of the master of a ship while at sea to protect his crew from violence and brutal treatment by other officers under his command.</p> <p>2. Same — Liability of Ship and Owner for Torts of Master.</p> <p>The master of a ship while on board is the agent of the owners in respect to all matters which come within the scope of his duty, and the owners and ship are liable in damages to a seaman, not only for the unwarranted illtreatment of such seaman by the master himself, but for his failure to perform his duty to protect the seaman from assaults and ill-treatment by other officers.</p>

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

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

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

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

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

<p>Appeal from 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 Minnesota.</p>

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

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

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

<p>Petition for Leave to File Certain Pleas in the Circuit Court of the United States for the District of Colorado.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>In Error to the Circuit 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 Northern District of Illinois.</p>

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

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

<p>Application of Juniata Limestone Company for Dissolution of Restraining Order.</p>