Volume 116 — Federal Reporter

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

This was an action by the Citizens’ Savings & Loan Association, the defendant in error, which is a citizen of the state of Ohio, against the county of Keith, in the state of Nebraska, Gerry T. Scott, Axel Nelson, and Fred E. Fease, county commissioners of said county, the plaintiffs in error, upon 12 coupons detached from municipal bonds, which bonds and coupons were in the following form, except that the bonds ran for different periods: “No. One. $3,000. “United States of…

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

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

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

In Bankruptcy. On review of decision of referee. The facts necessary for a determination of the issues involved, as found and certified by the referee, are as follows: “The bankrupt claims as exempt, as his homestead, lots 6, 7, 8, 9, and 10, in block 14 in the town of Casa, Ark.

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

At Law. On motions by each party for the court to direct a verdict. Action on contract, and declaration in the common counts in assumpsit. At the trial it was shown that the plaintiff and defendant, with one Graham, were the owners of the stock of the Atlantic Match Company, a corporation of New Jersey; Synnott owning three-eighths, Cummings three-eighths, and Graham two-eighths.

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

<p>1. Bankruptcy—Claims—Amendment of Proofs.</p> <p>The right to amend a proof of claim is granted with great liberality, especially in aid of a meritorious claim, but an amendment cannot be allowed the effect of which will be to permit the proving of a claim after the expiration of the year to which such proof is limited by Bankr. Act, § 57n.</p> <p>¶l. See Bankruptcy, vol. 6, Cent. Dig. § 523.</p>

<p>1. Bankruptcy—Discharge—Specifications of Objection.</p> <p>Specifications of objection to tbe discharge of a bankrupt on the ground that he has made a false oath, which fail to charge that the same was made knowingly and fraudulently, are fatally defective, and must be disregarded.</p> <p>¶1. See Bankruptcy, vol. 6, Cent. Dig. § 714.</p>

<p>1. Equity Jurisdiction—Complicated Accounts—Inadequacy of Remedy at Law.</p> <p>Equity has jurisdiction of a suit by a factor for a settlement of his accounts with his principal where the dealings between the parties were numerous, and the matters in dispute are so many that it is impracticable to take an account by the ordinary common-law proceedings.</p> <p>¶1. See Account, vol. 1, Cent. Dig. §§' 62, 63, 65.</p>

<p>In Admiralty. Proceeding for limitation of liability. On claim for death of stevedore.</p>

<p>Collision—Steamships—Evidence Considered.</p> <p>While the steamship Cambridge, with passengers, was lying at rest •with other vessels awaiting the starting of the racing yachts in the vicinity of Sandy Hook lightship, the steamship Ponce approached astern and on the starboard side. When she was 150 feet distant, coming directly toward the Cambridge, and having made no signal, the Cambridge blew an alarm signal, and started ahead with a port helm. The Ponce also blew an alarm, but came ahead, although with reversed engines, striking the Cambridge on the starboard side a little aft of amidships. ■Held, that the Ponce was clearly in fault for the collision, and that the Cambridge was not in fault for her attempted maneuver after collision became inevitable, it not appearing, moreover, that her action was not proper under the circumstances.</p>

<p>Collision—Steam and Sailing Vessels Crossing.</p> <p>The captain of a steamship ordered her helm hard astarboard for the purpose of passing under the stern of a schooner, which was then, as he testified, 3% points on his port bow, and about 3,000 feet distant, on a course crossing that of the steamship at an oblique angle. The steamer then proceeded on a course which would have taken her under the stern of the schooner if the starboard helm had been continued, but for some reason unexplained, apparently through the fault of the helmsman, the course to port was not continued, and -.when near the schooner the steamship bore directly down on her, sinking her, and drowning a number of her crew, iHeld, that the steamship was solely in fault, the schooner having no time after the danger became apparent to take any effective measures to avoid the collision.</p>

<p>Collision—Steam and Sailing Vessels—Negligent Navigation op Schooner.</p> <p>A steam ferryboat, crossing East river, stopped and beaded up stream to allow tbe passage of three schooners which were coming down the river nearly abreast. When about 150 feet distant the outer one of the schooners sheered, and came into collision with the steamer. After the sheer the steamer backed, but was unable to avoid the collision, iHeld-, upon the evidence, that the fault was solely that of the schooner, which had been left ample room to pass, but which sheered through negligent navigation, and when so close that the steamer could not have prevented the collision.</p>

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

<p>Bankruptcy—Premises Occupied by Trustee—Right to Recover Rental.</p> <p>A receiver appointed for the property of a bankrupt took possession of the premises occupied by the bankrupt under the supposition that they were a part of the bankrupt’s estate, and later such premises were occupied by the trustee. The premises were in fact leased to a corporation with which the bankrupt was connected. The lessor made no demand for possession, but subsequently commenced an action in a state court against the corporation in which judgment was recovered for arrearage of rent and for possession, and possession was surrendered to the officer thereunder, iHeld, that the lessor was estopped by such proceedings from recovering rental from the trustee.</p>

<p>1. Involuntary Bankruptcy—Petition.</p> <p>An averment in a p’etition ,in involuntary bankruptcy that the defendant at a certain time received a specified sum of money from a specified source, which sum “He has ever since concealed and secreted with intent to hinder, delay or defraud his creditors”, is not defective for want of particularity; the manner and details of the concealment being matters of evidence and not of averment.</p> <p>2. Same—Fraudulent Concealment.</p> <p>Fraudulent concealment may be shown as well by circumstantial as by direct evidence, and where the evidence is wholly circumstantial, it is impossible, and therefore unnecessary, to aver in the petition the precise details of the act of concealment</p> <p>8. Same—Verification of Petition.</p> <p>While a petition in involuntary bankruptcy must be signed and verified in duplicate by the petitioning creditors, or those authorized to represent them, the bankruptcy act does not provide or require that such petition shall be verified by a formal affidavit or .an affidavit of any sort; the only provision applicable to the verification of such petition being that “all pleadings setting up matters of fact shall be verified under oath.”</p> <p>4. Same—Signature of Corporation.</p> <p>A corporation can act only through its officers, or agents, and where its name is subscribed by an individual to a petition in involuntary bankruptcy, and the petition purports to be verified by the same person, it is necessary that such person should set forth under oath or affirmation that he was authorized to sign and verify the petition on behalf of the corporation. The omission of such an averment, unless remedied, is fatal; but is not an incurable defect, jurisdictional or otherwise.</p> <p>5. Same—Error in Jurat.</p> <p>A mere clerical error in the jurat of one of the duplicate originals of a petition in involuntary bankruptcy can be cured by amendment.</p> <p>6. Same—Amendment of Petition.</p> <p>Bule 11 of the general orders in bankruptcy deals with amendments to a petition and schedules, but was not intended to abrogate or restrict the general power of amendment in other respects vested in the court.</p> <p>7. Same—Defects in Petition.</p> <p>In accordance with the elementary rule that in proceeding on a statute the pleader must negative an exception in the enacting clause, a petition in involuntary bankruptcy against an individual is defective if it omits to aver that the defendant was not a wage-earner nor a person engaged chiefly in farming or the tillage of the soil. Such a defect however, can be corrected by amendment.</p> <p>(Syllabus by the Court.)</p> <p>¶ 4. See Bankruptcy, vol. 6, Cent. Dig. § 123.</p>

In Admiralty. Suit in rem to collect a bill for lighterage. After a hearing on the merits and a decree for the claimant (115 Fed. 218), heard on motion to retax costs.

<p>1. Shipping—Carriage of Goods—Implied Warranty of Fitness of Ship.</p> <p>In the absence of express contract, there is an implied warranty on the part of the shipowner, in every contract for the carriage of goods by sea, not only that the ship is seaworthy in a general sense at the beginning of the voyage, but that she is seaworthy for the particular voyage and cargo.</p> <p>2. .Same—Exemptions in Bill of Lading.</p> <p>Stipulations in a bill of lading against liability for loss or damage to cargo through dangers of the sea or leakage do not exempt the shipowner from liability for damage caused by seawater which enters through the deck by reason of its defective condition, which renders the vessel unseaworthy for the particular voyage and cargo.</p> <p>8. Same—Damage to Cargo—Unseaworthiness.</p> <p>A sehooner contracted to carry a cargo of cement from New York to Wilmington. On the voyage she encountered some weather in which •seas washed over her deck, but no worse than was to be anticipated on such voyage at that season. She was properly and carefully navigated. On arrival at Wilmington a portion of the cement stowed between-decks was found to have been rendered worthless by water, either seawater or rainwater, which entered through the upper deck, the seams in which had not been calked for some eight or nine years, and were in such condition as to permit any water falling on the deck to leak through, iHeld, that the damage was due to unseaworthiness at the beginning of the voyage, for which the owner was liable.</p>

<p>In Admiralty. Suit in rem for breach of towage contract.</p>

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

<p>In Bankruptcy.</p>

<p>Customs Duties—Classification—Wools.</p> <p>Wools are classified in paragraphs 349, 350, and 351 of the tariff act of 1S97 according to quality, and not place of origin, and wool of English blood, containing no perceptible mixture of merino, belongs in class 2, and is dutiable under paragraph 350, although imported from New Zealand.</p>

<p>1. Res Judicata—Matters Concluded by Judgment—Identity oe Issues.</p> <p>A mortgagor brought an action against the mortgagee in a state court of South Carolina to recover the penalty provided by statute for the failure of defendant to discharge the mortgage of record, alleging that it had been fully paid and satisfied. Defendant answered, and after trial a judgment was rendered for plaintiff, which was affirmed by the supreme court of the state. Selil, that such judgment was a bar to a subsequent suit by the mortgagee in a federal court to foreclose the mortgage, which involved as the foundation for the granting of the relief demanded a determination by that court that the mortgage was a subsisting obligation, which was the very issue submitted to, and adversely determined by, the state court.</p> <p>2. Same—Matters not Determined—Failure to Plead Equitable Defense in Action at Law.</p> <p>Neither could the federal court entertain the suit on allegations m the bill that through mistake the mortgage did not express the true contract of the parties, and a prayer for its reformation, since, under the provisions of the Code of South Carolina, such matters might have been pleaded as an equitable defense in the state court, and, if sustained by the proofs, that court could have granted affirmative relief thereon, which would have effectually defeated the plaintiff’s recovery, and under the construction placed on such provisions by the supreme court of the state a judgment at law is conclusive upon all matters, legal or equitable, which might have been pleaded in defense, and which if so pleaded would have gone to the merits of plaintiff’s case.</p> <p>¶ 2. See Judgment, vol. 30, Cent. Dig. §§ 1132, 1241.</p>

<p>1 Collision—Mutual Faults—Division of Damages.</p> <p>Where a collision occurred between a steamship and a dredge as the proximate result of negligence on the part of both vessels and also on the part of a steam tug, whereby only the dredge received injury, and the steam tug was brought in as a eodefendant with the steamship; held, that the damages and costs should primarily be equally divided between the three vessels.</p> <p>¶ 1. See Collision, voL 10, Cent. Dig. §| 296, 308.</p> <p>2. Same.</p> <p>Where one vessel becomes aware of a maritime fault on the part of another and without order or invitation from the latter, co-operates as a free agent in such fault to the injury of the latter by collision with a third vessel, liability to the injured vessel for the proper proportion of the damages and costs cannot be negatived on the ground that the first mentioned vessel only aided in the commission of the fault of the vessel, receiving the injury.</p> <p>(Syllabus by the Court.)</p>

<p>Customs Duties—Classification—Iron Sheets.</p> <p>Sheets of Iron or steel valued at more than 3 cents per pound are not covered by paragraph 142 of the tariff act of 1890, but are dutiable, according to value, under paragraph 215, as manufactures of metal not specially provided for. They are not subject to the additional rate imposed by paragraph 144 when pickled or cleaned; such paragraph being applicable only to sheets dutiable by gauge under paragraph 142.</p>

In Bankruptcy. On review of order of referee giving priority to claim. The following is the opinion of Referee Dean: On the 8th day of August, 1901, the bankrupt made a deed ,of assignment of all his property for the benefit of his creditors.

In Bankruptcy. On certificate from referee. The following is the certificate of the referee: I, Byerly Hart, one of the referees of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me the following question arose, pertinent to the said proceedings: The bankrupt, while insolvent, and within four months of the day of the adjudication, made a payment to a creditor, Isaac Lutz; giving him $35 in cash, and returning to him out…

<p>In Bankruptcy. On questions certified from referee.</p>

<p>1. Bankruptcy—Proof of Claim by Surety Who has Paid Debt—Surrender of Preferences.</p> <p>A surety who has paid the debt of his principal after 'the latter’s bankruptcy is not required to surrender preferential payments received by the creditor as a condition to the proving of his claim which arises from the payment made by him, and not through subrogation. The provision of Bankr. Act 1898, § 57i, that when a surety pays the debt of a bankrupt, in whole or in part, he “shall be subrogated to that extent to the rights of the creditor,” has reference to any security held by the creditor, and is not intended as a restriction upon the surety creditor.</p>

<p>1. Bankruptcy—Partnership Creditors—When Entitled to Share in Individual Estate.</p> <p>Where all the property of a partnership has been sold, and the partnership dissolved, the provisions of section 5, Bankr. Act 1898, are not applicable on the subsequent bankruptcy of one of the partners; and unless it appears that there is a solvent partner, or that other equities exist in favor of individual creditors which should be protected, a partnership creditor is entitled to share with the individual creditors in the estate.</p> <p>Í. Same—Debts Entitled to Preference—Taxes against Partnership.</p> <p>Under the provision of Code Iowa, § 1317, that “any individual of a partnership is liable for the taxes due from the firm,” taxes levied against a firm become an individual debt of a partner, and by virtue of Bankr. Act 1898, § 64a, must be paid from his estate in bankruptcy as a preferred claim.</p>

<p>On rehearing. For former opinion, see 102 Fed. 366.</p>

<p>1. Salvage—Services in Saving Burning Barge—Negligence of Tug in-Leaving Tow.</p> <p>The steam tug R. B. Little, having three barges in tow, owing to rough weather anchored them in Newport outer harbor, and proceeded to the dock, from a quarter to a half mile distant, for the purpose of communicating with owners, and remained there during the night, with her crew aboard, and with steam up ready to go to the sea at short notice. About midnight one of the barges took fire, and the Little at. once went to her aid, and with the assistance of another tug, which arrived a little later, extinguished the fire, saving about half the value-of the barge. lEeld, that the service of the tugs was a salvage service, and that, under the circumstances, the Little was not chargeable with negligence in leaving her tow, which would debar her from sharing in the salvage award.</p>

In Equity. On motion for preliminary injunction to restrain alleged infringement of copyright, based on bill and answer and on certain stipulated exhibits. History of the case: The Chicago Tribune, by agreement with the London Times, secured for use in the Tribune's columns the war news especially gathered by the Times, and its editorial comments thereon.

<p>1. Fraudulent Conveyances—Transfer of Bank. Stock—Evidence Considered.</p> <p>Evidence held to support a finding that a transfer of stock in a national bank was merely colorable, and that a sale of the stock on execution against the original holder conveyed a good title thereto.</p>

<p>1. Bankruptcy—Summary Character op Proceedings—Limitation.</p> <p>While the bankrupt act authorizes summary proceedings, they must. be compatible with the due and orderly administration of justice and conducted with a proper regard for the fundamental rights of the citizen, which rights are not forfeited by the adjudication in bankruptcy; and a referee is not authorized, on petition of a trustee filed at the close of the bankrupt’s general examination, to make an order requiring the bankrupt to turn over property, a failure to comply with which will subject him to imprisonment for contempt, without giving him an opportunity to be heard, and a reasonable time to produce evidence, after being advised of the specific claims made by the trustee.</p> <p>S. Same—Powers op Courts op Bankruptcy—Contempts.</p> <p>Section 41, Bankr. Act 1898, does not invest courts of bankruptcy with broader powers in the matter of punishment for contempt than are possessed by other federal courts; and the mode of proceeding in such courts to determine whether a constructive contempt has been committed should conform to the established practice in like cases in other courts of the United States, as near as may be, and what is legally sufficient to purge a contempt in such other courts is sufficient in a court of bankruptcy.</p> <p>8. Same.</p> <p>A court of bankruptcy cannot lawfully order a bankrupt to deliver to his trustee money or property which is not in his possession or under his control, and imprison him if he fails to comply with such order, which would be in fact an imprisonment for debt, and not for contempt.</p> <p>4. Same.</p> <p>The bankruptcy act makes ample provision for the punishment of a bankrupt for fraudulent concealment of property, or the making of a false oath in relation to the proceedings, by imprisonment on his conviction after a trial by jury, and it also fully protects creditors from the consequences of such fraudulent acts, by making them grounds for the refusal of a discharge; hence there is no sufficient reason to justify a court of bankruptcy in exercising the power to imprison for contempt to compel a bankrupt to turn over money or property to his trustee, in doubtful cases, and before doing so it should he satisfied by the evidence, beyond a reasonable doubt, of the ability of the bankrupt to comply with the order.</p>

In Bankruptcy. Petition to superintend and revise the action of the district court. Creditors filed a petition in involuntary bankruptcy agaiust Asa N. Beach, and, on the same day filed an ancillary bill in the district court, praying the appointment of a receiver to take charge of all of the property of the alleged bankrupt, including certain property described in the bill.

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

This is a bill to remove a cloud upon the title to a body of wild mountain lands, including about 10,000 acres, lying adjacent to the boundary between Tennessee and North Carolina. The complainants claim title to the lands under grants from the state of Tennessee and mesne conveyances to them, and aver that they are in possession, and that said lands lie wholly in Monroe county, Tenn.

<p>1. Jurisdiction of Federal Courts—Citizenship in Territories Fatal.</p> <p>A national court has no jurisdiction of a suit which involves a controversy between a citizen of a state and a citizen of a territory, and the fact that citizens of different states are interested in the controversy and are made parties to the suit does not remove the fatal objection.</p> <p>2. Same—Citizenship of Beal and Proper Parties Material, of Nominal Parties Immaterial.</p> <p>"The citizenship of nominal parties to a suit is not material and may be disregarded, but the citizenship in a state or foreign country by every proper party who has a real interest in the controversy involved in the suit is essential to the jurisdiction of a federal court on the ground of diversity of citizenship.</p> <p>•8. Same—Proper Parties Beal Parties to a Suit.</p> <p>A party who has a real controversy with the opposing parties to a suit, which presents a common point of litigation, that affects its entire subject-matter, and the decision of which will settle the rights of all the parties to the suit, is a proper and real party to the suit.</p> <p>•4. Same—Presumptions—Direct and Collateral Attack.</p> <p>In a direct attack upon a judgment or decree of a federal court by writ of error or appeal, the record must affirmatively show the jurisdiction of the court which rendered it. But on a collateral attack, jurisdiction is presumed.</p> <p>•5. Same—Amendment to Show Permissible in Circuit Court, but not in Appellate Court.</p> <p>Where, through the mistake or inadvertence of one of the parties, the requisite averments of citizenship have not been made, an appellate court may reverse and remand the case, with leave to the court below to permit amendments to show its jurisdiction, but it has no power to permit such amendments in the appellate court.</p> <p>■6. Fraudulent Conveyances—Equitable Interest.</p> <p>A conveyance by a debtor of its leviable equitable interest in land with intent and in furtherance of a scheme to induce parties to become its creditors, and to delay and defraud them, is voidable at the election of existing and subsequent creditors.</p> <p>’7. Same—Use of Legal Instruments to Effect, No Bar to Avoidance.</p> <p>The use of sheriff’s deeds and other legal instruments to effect a fraudulent conveyance of property by a debtor is no bar to its avoidance.</p> <p>■8. Same—Scheme to Defraud.</p> <p>A bank devised the scheme to run the title to all the real estate upon which it foreclosed mortgages into a realty corporation whose stock it held, and to take notes and mortgages upon the real estate for the amounts due by the former mortgagors. The result was that it procured' notes of the realty corporation, which was insolvent, for $330,000, many of which were partially secured by mortgages; and it carried these notes and the worthless stock of the realty company, $100,000 in amount, at par, among its assets. Held), that the plan disclosed an intent to obtain creditors by deceit and to defraud them, and sheriff’s deeds and conveyances made in furtherance of the scheme were voidable for fraud at the election of the creditors.</p> <p>•0. Trusts—Express Forbid Inference of Implied with Different Terms.</p> <p>An express trust prohibits the inference from the same transaction of an implied trust on different terms. Where parties agree that property stall be transferred to and held by a corporation under the express trust whic-b the relation of a corporation to its creditors and stockholders creates, and it is transferred to the corporation accordingly, they are estopped from claiming that an implied trust of different terms arose from the transaction, and' no such trust can be inferred between them.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>10. Corporation — Sole Stockholder and Creditor Cannot Ignore Its Existence.</p> <p>A corporation is an entity distinct from its stockholders and creditors, and a sole creditor and stockholder of a corporation cannot ignore its existence, and convey, incumber, or deal with its property without the action of the corporation.</p> <p>11. General Assignment—Assignees Cannot Avoid Conveyances Fraudulent as to Creditors.</p> <p>A general assignment for the benefit of creditors under the laws of Missouri and under the common law does not vest in the assignees the rights of creditors to avoid the fraudulent conveyances of the assignor. It conveys what the assignor has, but nothing that he has transferred by conveyances good against him, but fraudulent as to his creditors.</p> <p>12. General Assignment—Effect in Another State.</p> <p>A general assignment made in one state (Missouri) vests no better title in, and grants no greater power or rights to the assignees in, another state (Kansas), than it gave them in the state where it was made.</p> <p>13. Subsequent Attachments of Real Estate Fraudulently Conveyed</p> <p>Superior to Title.of Assignees under Laws of Missouri and Common Law.</p> <p>Subsequent attachments of real estate fraudulently conveyed by an assignor by deeds good against him are superior in law and in equity to the title of assignees under a general assignment under the laws of Missouri and the common law.</p> <p>(Syllabus by the Court.)</p> <p>¶ 11. See Assignments for Benefit of Creditors, vol. 4, Cent. Dig. §§ 526, 752.</p>

The B. E. McMath Surveying Company, defendant in error and plaintiff below (for brevity hereinafter called the McMath Company, or the plaintiff), recovered judgment against the North American Railway Construction Company, a corporation, plaintiff in error and defendant below (for brevity hereinafter called the North American Company, or the defendant), upon a declaration in assumpsit for an alleged balance due for work performed under a railway grading contract, wherein the…

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

On Motion for Leave to Refile Bill of Exceptions. This cause was tried February 8, 1901, before the district judge of the United‘States for the Eastern district of Wisconsin, presiding by assignment in the circuit court of the United States for the Northern district of Illinois, and to a jury, resulting in a verdict for the defendant by direction of the court.

<p>1. Taxation—Suit to Enjoin Collection oe Taxes—Who may Maintain.</p> <p>A holder of bonds of a corporation secured by mortgage has no standing to maintain a suit to restrain the collection of taxes assessed against the mortgaged property, unless he alleges in his bill that he is the mortgagee, or, if not, that the mortgagee refuses to act, and joins him as a defendant.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>Appeal from decree finding infringement of letters patent No. 411,131, issued September 17, 1889, to Herman Schulze-Berge, and No. 442,855, issued December 16, 1890, to M. R. Caldwell, each for a glass reheating apparatus.</p>

<p>Patents—Construction of Contract of License—Defense of Suits.</p> <p>Plaintiffs, who were owners of certain patents relating to knitting machines, entered into a contract with defendant corporation, which was a manufacturer of knitted goods, by which defendant was given an exclusive license to use the patented machines for certain purposes during the life of the patents. The contract contained a clause providing that, in the event of any suit or suits by or against either of the parties concerning the said patents or inventions, “the costs and expenses attending such suit or suits on behalf of any or all of the parties hereto shall be borne and paid equally by the respective parties; that is, one-half by the parties of the first part and one-half by the party of the second part.” A suit was brought against defendant on the ground that the machines infringed another "patent, and plaintiffs, by leave of court, intervened, and defended the same. 1 Held, that neither the fact that the machines were held in the suit to be infringements, nor that defendant had refused to defend and the intervention, though acquiesced in, was voluntary, relieved it from its obligation, under the contract, to contribute one-half of the costs and expenses incurred by plaintiffs in defending the suit.</p>

In Equity. ' Suit for infringement of letters patent No. 420,792, granted to Charles H. Heywood February 4, 1890, for machines for making and printing envelopes. On final hearing.

Action at Law against Surety on Bond of Indemnity. On motions-for direction of verdict. The plaintiff, at the instance of the defendant, became surety on a replevin bond, and took a counter bond of indemnity in the sum of $15,000.

<p>1. Tug and Tow—Grounding of Tow—Negligent Navigation in Fog.</p> <p>An ocean tug, which in going a distance of eight miles in a fog, with a barge in tow, deviated three miles from the proper course, and grounded, was in fault for the grounding of the tow, which followed; but the barge was also guilty of contributory fault where, although the fog was so thick that the tug could not be seen, nor her course ascertained except by watching the direction of the hawser, which was some 200 fathoms in length, the lookouts stationed for that purpose were inattentive to their duty, and did not observe the slackening of the hawser nor the signals of the tug to cast anchor until the barge had come up on the line, and the grounding, was not avoided.</p>

<p>In Equity. Suit to restrain infringement of trade-name. Hearing on bill, answer, and proofs.</p>

<p>1. Seamen—Bight of Master to Chastise—Abandonment of Vessel.</p> <p>A master may inflict moderate chastisement on a member of his crew for disobedience of orders, and a single act of such kind, which does not exceed the bounds of moderation, will not justify the seaman in leaving the vessel before the expiration of his term of service, in the absence of threats of great bodily harm or some other reason to apprehend extreme danger to his personal safety if he remains.</p>

<p>1. Removal of Causes—Separable Controversy—How Determined.</p> <p>The question whether an action involves a separable controversy which renders it removable by a nonresident defendant is to be determined from what appears as matter of law on the face of the plaintiff’s pleading, 1</p> <p>2. Same—Action to Recover for Joint Tort.</p> <p>An action against a railroad company and one of its conductors to recover for an injury received by plaintiff in a collision, alleged in his complaint to have been caused by the failure of the conductor to observe certain regulations and rules of the company, which failure was due “to the joint and concurrent negligence” of the defendants, is one for a joint tort, and is not removable by the railroad company on the ground that it involves a separable controversy, where plaintiff and the conductor are citizens of the same state.</p>

<p>1. Contracts—Legality—Agreement in Restraint of Trade.</p> <p>A contract by which sellers of property agreed as a condition of the sale that they would not become engaged or interested in the business of catching or manufacturing the products from certain classes of fish along the Atlantic seaboard, in competition with the business of the purchaser, for the term of 20 years, is not void as in restraint of trade and against public policy, nor on the ground that it is oppressive and unreasonable.</p> <p>¶ 1. See Contracts, vol. 11, Cent Dig. §? 555, 558, 559.</p>

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

<p>In Admiralty. Suit to recover wharfage.</p>

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

<p>In Admiralty. Suit in rem to recover for a personal injury.</p>

In Equity. Suit for specific performance of contract with trustees of the sinking fund of the city of Cincinnati. Affirmed in circuit court of appeals. 109 Fed. 825.

<p>1. Removal of Causes—Amount in Controversy—Prayer for Judgment.</p> <p>Where a plaintiff in a state court in his complaint prays judgment for a sum less than $2,000, and by the statute his “recovery is limited to the amount prayed for, the sum so demanded is the amount in controversy, within the meaning of the removal act, regardless of the allegations of the complaint.1</p> <p>3. Same—Sufficiency of Petition—Allegation of Fraud Upon Jurisdiction of Court.</p> <p>Plaintiff alleged in his complaint in a state court that after he had paid premiums on a life insurance policy issued by defendant, In an amount exceeding $2,500, bis contract was forfeited and lost to him through the fraudulent and illegal acts of defendant; and he sued to recover, of the amount of premiums so paid, the sum of $1,990. iff eld, that the cause was not removable on an allegation in the petition therefor that plaintiff’s failure to demand the recovery of the full amount of premiums paid was for the sole purpose of preventing a removal of the cause to the federal court; no fraud being charged in that regard, nor facts alleged indicative of a fraudulent purpose.</p> <p>8. Same—Motion to Remand—Burden of Proof.</p> <p>On a motion to remand, the burden rests on the defendant' to sustain by evidence allegations of attempted fraud upon the jurisdiction of the federal court made in his petition as grounds for the removal.</p>

<p>At Law. On motion by defendant for judgment upon reserved point notwithstanding the verdict.</p>

<p>1. Bankruptcy—Discharge—Jurisdiction—Time of Petition.</p> <p>Under Bankr. Act 1898, § 14, providing that within 12 months after adjudication a petition for discharge may he filed, and that the court may permit it to be filed within, but not after, the next 6 months, grant; ing a discharge on a petition therefor filed more than 18 months after the adjudication is without jurisdiction.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 694.</p>

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

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

The heirs of Gonsoulin (the plaintiffs in error) brought this action, June 30, 1898, against the Gulf Company (the defendant in error), a New Jersey corporation, in the district court of St. Mary’s parish, where the land claimed is situated. The action was removed by the defendant into the circuit court of the United States.

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

<p>In Error to the Circuit Court of the United States for the Western District of Eouisiana.</p> <p>This, action was brought by Sonnefield & Emmins, defendants in error • here, a firm composed of H. J. Emmins, G. W. Sonnefield, and K. W. Ab-right, citizens of Texas, against James A. Blanchard, plaintiff in error here, a citizen of Louisiana. The suit is to collect the last payment on a contract to build a house. Plaintiffs averred that they had erected the.house and completed it as required by the contract, and that it had been accepted, and is now occupied by the defendant and his tenants. The defendant answered, admitting the contract, and denying that the plaintiffs had completed the house pursuant to the contract and the specifications. The defendant designated a number of particulars in which the building was defective, and in which plaintiffs failed to comply with the specifications, and concluded by averring that by the failure of the plaintiffs to construct the building according to their contract the defendant has been damaged in the sum of $5,000, which amount is due him, “and for which sums he prays judgment in reconvention.” The case was tried on those issues. The contract sued on is made an exhibit to the petition, and is as follows:</p> <p>“State of Louisiana—Parish of Caddo.</p> <p>“Know all men by these [presents] that we, Sonnefield & Emmins, builders and contractors, have this day entered into the following contract with Dr. Jas. Ashton Blanchard:</p> <p>“(1) We agree to erect and finish in a perfect and workmanlike manner for said Blanchard, on the following lot of ground situated in the city of Shreveport, La., viz., lot ten (10), block thirteen (13), in the city of Shreveport. La., the following buildings and improvements: A three-story brick building.fronting on Milan street, in Shreveport, La., described in the plans and specifications prepared by Bridges & Snyder, architects.</p> <p>“(2) We will do said work in strict accordance with the plans and specifications hereto annexed and made part hereof, and will furnish all the labor, tools, materials, and appliances necessary to do said work, and will deliver same to said Blanchard clean and in good condition, and complete, on or before the first day of November, 1901.</p> <p>“(3) We will do said work for the price of nine thousand four hundred and eighty dollars, which said Blanchard agrees to pay as follows: First payment, eighteen hundred and ninety-six dollars ($1,896.00), to be made when the first-floor joists are In place; second payment, • same amount dollars ($1,896.00), when the second-floor joists are in place; third payment, seventeen hundred and ninety-two dollars ($1,792.00), when the third-floor joists are in place; fourth payment, eighteen hundred and ninety-six dollars ($1,896.00), when the roof is on and the building inclosed; and the fifth payment fifteen days after the said building and works are all complete, delivered, and accepted by said Blanchard; said payment to be made on the certificate of Bridges and Snyder, architects; said certificate to be final and conclusive that the work done warranted said payments.</p> <p>“(4) We also agree to take out an insurance policy in a good and solvent company, acceptable to said Blanchard, on said works, and keep the same fully insured at our expense up to the final delivery of said works to and their acceptance by you or your assigns; and, at the time when the above several payments are made to us, we will transfer to you or your assigns an amount of said insurance corresponding with the amount of the payment then made, to indemnify you from loss in the event of fire before delivery to you of the works complete. It being understood that the works shall be at our risk until accepted by you or your assigns as a whole.</p> <p>“(5) We furthermore agree that no new work of any description done on the premises, nor any work of any kind whatsoever, shall be considered as extra, unless a separate estimate in writing for the same before its commencement shall have been made by us to you, and your consent obtained thereto in writing.</p> <p>“(6) Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Bridges & Snyder, architects, and their decision shall be final.</p> <p>“(7) We also agree that, should we fail to finish the work at or before the time agreed upon, we shall pay to or allow you, by way of liquidated damages, the sum of seven dollars per diem for each and every day thereafter the said works shall remain incomplete, and said damages shall be paid although works are partially completed.</p> <p>“Done and signed in the city of Shreveport, Caddo parish, Da., on this the 17th day of July, 1901. Sonnefield & Emmins.</p> <p>“Jas. Ashton Blanchard.”</p> <p>It is shown that all the payments except the last one provided for by the contract had been made. Each of the four payments were made on the statement of the architects, their last statement being as follows:</p> <p>“Shreveport, La., Oct. 4th, 1901.</p> <p>“Dr. J. A. Blanchard: The fourth payment on building for you on Milam St. is now due, and we recommend payment of same. Amount of payment is seventeen hundred and ninety-two dollars ($1,792.00), to Messrs. Sonnefield & Emmins. Perry Bridges & Snyder.</p> <p>“Oct. 5th. Received above. Sonnefield & Emmins.”</p> <p>It is not shown that any certificate was issued for the fifth payment.</p> <p>The verdict and judgment were for the plaintiffs for $2,266, and the defendant sued out this writ of error.</p>

The following Is the opinion of the district court (SEAMAN, District Judge): “The amount involved in this controversy is considerable, and the testimony has been heard in open court The absence of conflict in matters material to the issue is noteworthy,—especially in view of the disputes heretofore existing,—and the issues are thereby simplified. No actual fraud appears, and the issue raised as to constructive fraud is clearly set aside by the testimony.

Petition to Review an Order of the District Court of the United States for the Eastern District of Wisconsin, in Bankruptcy.

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

<p>Appeals from the District Court of the United States' for the Eastern District of Wisconsin.</p> <p>On February 23, 1897, the Wittenberg Yeneer & Panel Company, located at Wittenberg, Wis. (hereinafter called, for brevity, the bankrupt), executed to Edward Daskam, of Antigo, Wis., its note for $6,000, at one year, with interest, secured by mortgage on certain real property in the village of Wittenberg, where the bankrupt operated a lumber mill. The mortgage contained an insurance clause providing for insurance in the sum of $6,000 or over, the policies to be assigned to the mortgagee as collateral. This mortgage was duly recorded on the 19th of November, 1897, and on March 5, 1898, payment of the «debt was extended for two years. In the latter part of December, 1898, or early in January, 1899, the bankrupt desired to borrow money with which to purchase logs to stock its plant, and requested Daskam to go security at the First National Bank at Antigo for an amount not to exceed $5,000; and it was agreed between them that Daskam should go such security at the bank, and should assign to the bank as collateral the $6,000 mortgage, and that in case of fire the bank and Daskam should have the benefit of the insurance upon the property to satisfy the Indebtedness. On January 12, 1899, Edward Daskam arranged with the bank touching the propose^ loan, whereupon the bank addressed the following letter to Thomas E. Daskam, who was the son of Edward Daskam, ana the manages* of the Wittenberg Veneer & Panel Company:</p> <p>“Dear Sir: Your father was in this morning in regard to securing a loan of $5,000 for you, which I promised him on the following terms: Notes of $1,000 or $2,000, as you wish, to be given for ninety days, at seven per cent, until amount of loan amounts to $5,000; loan to run, or a portion of it, until July next, if you so desire, and you to have the privilege of paying any note at maturity; money to be deposited in this bank, and checked out as you may need it. Your father to place with us, with his indorsement, the $6,000 mortgage on your plant, and to indorse all notes made by you to this bank. Insurance on your plant payable to us in case of loss. Now, we are pleased to make you the loan, and hope you will transfer your entire business to this bank, as I believe it will be greatly to your interest to do so; and I assure you we will at all times do whatever we can that may be to your Interest. Your father sent you a statement to fill up before we commenced business, and, I would suggest that you come up and arrange the matter personally, and bring up insurance policies, having had them made payable to us.</p> <p>“Yours truly, E. D. Moses.”</p> <p>Under this arrangement the bank loaned and the bankrupt received moneys as follows: January 19, 1899, $1,000; February 10, 1899, $1,000; February 21, 1899, $1,000; March 2, 1899, $1,000. The way the business was done was this: When the bankrupt desired money, it drew its drafts upon Edward Daskam for the respective amounts stated, deposited them for collection in the bank of Wittenberg, and through that bank they were forwarded to the Bank of Antigo, and apparently (the drafts offered in evidence, with a single exception, not being included in the record) the Bank of Antigo «drew its drafts for the respective amounts upon a bank in Milwaukee to the order of Edward Daskam, and sent them in the usual course of business to the bank at Wittenberg for the bankrupt. Edward Daskam gave his notes to the Bank of Antigo for the amount of each draft at the time, except that the drafts of February 10th and February 21st were embodied In one note. The real estate mortgage and note were delivered by Edward Daskam to the bank at or about the time of the arrangement, but no formal assignment was made to the bank until March 1, 1899. The money thus obtained by the bankrupt was used by it in the purchase of logs for its mill. On May 15, 1899, at the end of the logging season, the bankrupt gave to Daskam its note for $4,106, payable August 10, 1899; being amount received from the bank, with the interest. The note contained this clause: “Having deposited with Edward Daskam certain property, as stated below, as collateral security to this note, for value received .1 hereby authorize said Edward Daskam, or assigns, on the nonpayment of this note at maturity, to sell said property at either public or private sale, with or without further notice to me, and to apply the proceeds thereon. Fire insurance policies, should fire occur.” Daskam indorsed upon this note a guaranty of the payment, and delivered it to the bank as further collateral security. There was a further agreement between the three parties and the insurance agent that the policies of insurance should be renewed as they should expire, and the bankrupt, if able, was to pay the premiums; otherwise the bank or Daskam was to pay them. Prior to the arrangement stated, policies of insurance had been issued by different companies, which remained in the possession of the insurance agent in that locality,—he holding them for the parties interested,—and which contained the clause, “Loss or damage, if any, payable to Edward Daskam, mortgagee.” At the time of the fire there was $12,500 insurance upon the plant, in six different companies. Four policies (being in renewal of prior insurance) were dated respectively June 1, 1S99, and each contained the clause, “Loss or damage, if any, payable to First National Bank of Antigo, Wisconsin, mortgagee.” Two other policies, dated, respectively, August 15 and September 2, 1898, aggregating $3,500 in amount, each contained a clause in the body of the policy, “Loss or damage, if any, payable to Edward Daskam, mortgagee,” with a subsequent indorsement, under date of March 7, 1899, “Loss, if any, under this policy, shall be adjusted with the insured herein named, and piiyable to the First National Bank of Antigo, Wisconsin, mortgagee, as its interest may appear.” There was a subsequent indorsement, under date of July 21, 1899, upon each of the two policies: “Loss, if any, under this policy, shall be adjusted with the assured, and payable to R. W. Roberts as his interest may appear. H. G. Borgman, Agent.” This was done, at the request of the president of the bankrupt, to secure Roberts’ debt,—subject, as he states, to other claims, —but was not done with the knowledge or consent of either Daskam or the Bank of Antigo. On June 15, 1899, and before the fire, Daskam paid the bank on account of the money advanced $3,800, and paid the balance on December 9, 1890; taking an assignment to himself from the bank of its rights to the proceeds of the insurance, a reassignment of the original mortgage, and an assignment of the note of May 15, 1899. On July 21, 1899, Roberts was an unsecured creditor of the bankrupt, to the amount of about $3,600, for money theretofore loaned; and on that day, at the request of the president of the bankrupt, the agent indorsed upon the several policies the clauses stated; retaining, however, possession of the policies. On the 23d of July, 1899, the plant was destroyed by fire; the loss amounting to about $30,000. Thereupon the agent delivered the six policies to the bankrupt, who delivered to the bank four of the policies, and delivered to Roberts the two policies so indorsed. There is conflict of evidence whether the two policies so indorsed to Roberts were passed from the possession of the insurance agent, and whether they were delivered to Roberts before or after the fire, but the fact is not deemed material. The loss under the four policies was adjusted at $8,520.01. The loss on- the two policies was adjusted at $3,313.34. After the fire the bank paid $736.10 for premiums on all the policies, and this amount was repaid to the bank by Daskam when the loan was elosed. On August 1, 1899, the bankrupt executed a voluntary assignment for the benefit of its creditors, under the state law; and the fire loss,- as to the amount, was adjusted by its assignee in those proceedings, with the several companies insurers. On October 19, 1899, a petition for involuntary bankruptcy was filed by certain creditors of the bankrupt, and on November 14, T899, the corporation was adjudged bankrupt by the court below. Daskam thereupon filed his petition against the trustees in bankruptcy, the several insurance companies, and Roberts, claiming the application of the insurance first, to the payment of his real estate mortgage, and second to the note of $4,106. Roberts claimed the proceeds of the two policies which had been so indorsed, and the loss under which was adjusted at $3,313.34. The trustee answered, denying the' right of either Daskam or Roberts. The insurance companies, admitting liability, covered the amount of the loss under the policies into the registry of the court It was decreed that Daskam was -entitled out of the proceeds of the four policies to the amount due upon his note secured by the real estate mortgage, with interest and charges for premiums paid. This decree was accepted by all parties. There remains a balance of $3,560.41, which is the amount here in controversy. After payment to Daskam of his real estate mortgage, there remains of the amount due under the four policies so delivered to the bank a balance of $148.70. The remainder of the fund in the hands of the trustees is derived from the two policies that were delivered to Roberts. The court below decreed that this balance should be paid to Daskam upon the debt represented by the $4,106 note. (D. 0.) 108 Fed. 593. From this decree the trustees and Roberts severally appealed.</p>

The declaration of plaintiff in error charged that defendant was a common carrier of passengers from Chicago, 111., to Dawson City, Northwest Territory; that on August 4, 1897, defendant accepted him as a passenger, and agreed to transport him from Chicago to Dawson City before the end of September, 1897; that defendant carried him only to Tanana, a mining camp on the Yukon river nearly 1,000 miles below Dawson City; that he was compelled to spend the winter there, and did…

<p>1. Copyrights—Persons Entitled to Copyright—Construction of Contract.</p> <p>In 1890 an American publisher entered into a contract with an English author, having in preparation a novel to be published serially in an English magazine, by which he agreed to pay £20 “in return for the sole and exclusive use of advance sheets of said novel in the United States and dominion of Canada”; the price to be paid “off publication of the novel in America.” The author agreed to deliver to the publisher a complete copy of the work, either in advance sheets or manuscript, at least two months prior to the completion of its serial publication in England. Prior to the publication of the work in America, in October, 1891, the greater portion of it had been published serially in England. Until July 1, 1891, there was no statute in the United States under which a copyright could be secured on a work by a foreign author. Held that, construing the contract in the light of such facts, it conferred no rights of proprietorship in the manuscript of the work which entitled the American publisher to copyright the same in the United States, but only the right to the exclusive use of the advance sheets to enable him to ■ publish the work in America coineidently with or in advance of its publication in England.</p>

<p>1. Trial to Court—Finding or Facts.</p> <p>The finding of a circuit court upon the facts In an action tried without a jury, under Rev. St. § 649, may be either general or special, but cannot be both; and where a general finding was made, upon which judgment was rendered, the court was without authority to subsequently sign special findings and embody the same in the bill of exceptions, when there had been no order vacating the general finding or judgment thereon, and in such case the general finding must stand as that of the court.</p> <p>8. Same—Requisites op Special Finding.</p> <p>A special finding of facts should declare all the ultimate facts determining the issues and essential to support the judgment. It should be complete in itself, unaided by reference to bill of exceptions, and should not contain any statement of the evidence, though it may refer to documents set out in the pleadings, or otherwise in the record.</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>In Admiralty.</p> <p>On April 26, 1900, the schooner Commerce was proceeding down the Chicago river toward Lake Michigan in tow of the tug O. B. Green. She had been taken in tow by the tug at a dock just north of Kinzie street, on the North branch of the Chicago river. After passing the Kinzie street bridge and the two railroad bridges, and at about the junction of the North and South branches of the Chicago river, the tug blew the usual signal for the Wells street bridge to open. This bridge was 400 feet further down the river. The bridge did not open promptly, so the tug checked her speed or came to a full stop, and blew a second signal for the bridge. In a short time the bridge tender rang the bridge bell, and, as claimed by the Dun-ham Towing & Wrecking Company and denied by the city of Chicago, lowered the red-ball signal, and began to open the bridge, swinging the north end of the bridge toward the east, the direction in which the tug was heading. The tug, with the schooner in tow, then started for the north draw of the bridge at a moderate rate of speed. The bridge, instead of stopping when it was fully open due east and west and parallel with the bridge protection, continued to swing. The bow of the schooner had reached a point just east of the west end of the center protection of the bridge, and as the bridge continued to swing it fouled the forerigging of the Schooner, and caused the damage complained of.</p> <p>Edward Mullen, the owner of the schooner, filed his libel in personam - against the city of Chicago and the Dunham Towing & Wrecking Company, the owner of the tug, to recover the damages sustained. The libel attributed the fault .to the negligence of those in charge of the bridge in not stopping its course after it had been opened, and in permitting it to swing ¿iter it had been fully opened for the passage of the schooner, and after she had been permitted to enter the draw or channel in range of the bridge. The libel charged no fault upon the Dunham Towing & Wrecking Company, but propounded that the tug would be charged with fault by the city of Chicago, and therefore made the owner of the tug party to the libel, being unable, as the libel states, to point out any special fault or negligence of which the tug was guilty, but, if such fault should be discovered, asked to avail himself of the privilege of so charging and urging any fault that may be established against the tug by any of the parties to the proceeding. The city of Chicago by its answer charged no fault upon the schooner; asserted that when the whistle of the tug was sounded the bridge tender prepared to swing the bridge to an open position; “that the bridge ball which is used as a signal for on-coming vessels, as provided in and by the ordinances of the city of Chicago hereinabove set forth, when up warning them not to enter the draw, and when down as a signal for them to proceed through the draw, was left up upon said bridge, and so remained at the time and during the collision; that said bridge ball was left up as a signal to said tug O. B. Green and said schooner Commerce to stop and not to proceed towards said bridge.” It then charges that the tug and schooner were at a sufficient distance from the bridge to avoid the collision, but no effort was made by the tug to stop, but it proceeded toward the bridge without checking its speed; “that while said tug and schooner were coming on at a moderate speed the bridge tender was swinging said bridge to an open position; that the bridge ball was still up on said bridge as a signal for said tug and schooner not to come on; that said bridge ball was left up upon said bridge as a signal to said tug and schooner* not to proceed toward said bridge until said bridge was in an open position and stopped in the center of the river; that said tug and schooner, not regarding said bridge ball signal being up, came on without checking their speed; that when said bridge reached an open position said bridge tender was unable to cheek the speed of said bridge and stop it, and said bridge continued swinging beyond an open position, and before it was stopped some damage was done tc said schooner.” The answer charges the collision to the fault and mismanagement of the schooner or her tug in not stopping in accordance with the bridge-ball signal displayed and in accordance with the ordinances of the city of Chicago; “that the only signal to vessels to proceed toward the draw is the lowering of the bridge ball in the day time, and of the red light in the night;” and that the collision would not have occurred had proper efforts been made by the tug to stop the schooner.</p> <p>The answer of the Dunham Towing & Wrecking Company charges that, in answer to the signal of the tug to open the bridge, the bridge tender in charge lowered the red-ball signal and opened the draw of the bridge, and the tug, with its tow, proceeded at a moderate rate of speed down through'the north draw of the bridge; and after the tug had entered fully into the draw, and the schooner, in tow of the tug, was about entering the draw, the bridge, without warning, started to close again, the west end of the bridge swinging around to the north instead of remaining at the center after the bridge was fully opened, and the west end of the bridge was thus swung around directly in front of the schooner, and fouled, and caught in the schooner’s rigging, doing the damage,—the fault being charged wholly upon the bridge tender.</p> <p>The ordinances of the city of Chicago referred to in the answer are as follows: '</p> <p>“204. (Vessel Signals.) The commissioner of public works is hereby required to provide and maintain at the several bridges over the Chicago river and its branches, in the best and most practicable manner, vessel signals as required by this article.</p> <p>“205. (Signals Prescribed.) Said signals shall be material of a red color for use in the day time and shall be of such size and so placed, when elevated that they may be readily, seen up and down the river. The signal for the night time shall be a red lantern of such size and so placed and arranged when elevated as to be easily seen up and down the river and the street.</p> <p>“206. (Duty of Vessels.) It shall be unlawful for the owner or owners, officer or officers, or other person or persons in charge of any vessel or vessels navigating the Chicago river or its branches or any part thereof, to attempt to pass any of the bridges oyer the said river or its branches, while said signal or signals are up or elevated, or to approach nearer than the end of the bridge protection to any of said bridges, at such times as that the same may be injured or damaged, or while the said bridges, or any of them, may be opening or closing.”</p> <p>The testimony was taken in open court before the district' judge, who pronounced for the libelant against both of the respondents, dividing the damages between them. From this decree the City of Chicago appeals in the first case, asserting that it ought not to be held responsible for the damage; and the Dunham Towing and Wrecking Company in the second case, by cross appeal, asks for a review of the decree; claiming that it was blameless, and that the fault was attributable wholly to the city of Chicago.</p>

This ease arises upon the following facts: Robert Harpke and Frederick Maier, individually, and as copartners doing business as Harpke and Maier, July 24, 1900, were, upon their voluntary petition,… Held: as a conclusion of law, that the payment of the three thousand dollar note, secured by the endorsement of Riesen, did not constitute a preference, such as would prohibit the allowance of the two thousand dollar claim of the appellee.

<p>1. Shipping—Proceedings for Limitation of Liability—Jurisdiction.</p> <p>A proceeding by a shipowner for limitation of liability under Rev. St. ? 4283 et seq., as amended by 24 Stat. c. 421, and under the admiralty rules, may be brought in the district court for any district in which said owner may be sued in that behalf, on payment into court of, or stipulation to pay, the appraised value of the vessel, or upon the transfer of his interest to a trustee; and the presence of the vessel within the district is not essential to the court’s jurisdiction.1</p> <p>2. Same—Estoppel to Maintain Proceedings—Judgment in Personam in State Court.</p> <p>A shipowner is not estopped by a judgment In personam rendered against him by a state court for damages sustained in a collision from thereafter instituting proceedings in a court of admiralty for a limitation of his liability in respect to such damages under the statutes of the United States, although in such proceeding the fact of liability and the amount of damages sustained by the injured party are matters rendered res judicata by the former judgment.</p> <p>8. Same—Laches—Conditions to Granting of Relief.</p> <p>Nor is the shipowner debarred by laches from maintaining such pnoceeding because the same was not instituted until after he had prosecuted an appeal from the judgment for damages, and the same had been affirmed, nor by the fact that he gave a supersedeas bond, as required by statute, to enable him to safely present his contention to the appellate court; but where there has been such delay he should be required, as* a condition to the granting of the relief prayed for, to pay the costs adjudged against him in the state courts, which might have been, to a large extent, avoided by his more timely action.</p>

On August 14, 1897, the appellant, Lee S. Harrison, entered into a written agreement with the appellee as follows:' “This agreement, made at Chicago, Illinois, on this 14th day of August A. D. 1897, by and between Lee Harrison, of Peoria, the first party hereto, and the Glucose Sugar Refining Company, a corporation organized under the laws of the state of New Jersey, the second party hereto, witnesseth: Whereas, the first party has been for several years last past engaged in…

<p>L Mortgages—Foreclosure—Redemption.</p> <p>Notwithstanding Sess. Laws Wash. 1899, p. 87, § 5, providing that sales of real estate shall be subject to redemption, sale under mortgage of lease of a portion of a harbor area, a wharf, a fishing and fish-canning plant, and all personal property used for carrying on the business, may be without redemption; the chief value of the property consisting in its integrity as a fishing and canning plant.</p>

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

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

<p>In Error to the Circuit Court of the United States for the District of Washington.</p> <p>This was an action to recover damages from the plaintiff in error for the loss sustained through the alleged negligent killing of Jay H. Adams, the husband and father of the defendants in error. A verdict was obtained in the lower court in favor of the defendants in error in the sum of $14,000, and judgment entered for that amount. The case is now before this court upon writ of error to reverse that judgment. See 95 Fed. 938.</p> <p>It appears that the deceased, Jay H. Adams, was an attorney at law residing at Spokane, Wash., frequently having occasion to travel over the lines of railroad in that section of the country. On November 13, 1898, the deceased, in company with a friend, took the east-bound overland train of the Northern Pacific Railway Company at Spokane about 8 a. m., and continued to ride thereon until the town of Hope, Idaho, was reached, at which point they left the train. They remained in Hope several hours, taking the regular west-bound overland train of the same company for Spokane at 4:15 p. m. of the same day, this train being some three hours and ten minutes late in arriving at Hope. The train consisted of an engine and eight cars, placed in the following order: Engine, mail, baggage, express, smoking car, day coach, tourist sleeper, dining car, and standard Pullman sleeper. These cars were vestibuled, with the exception of the tourist sleeper, which was not only not vestibuled, but had no device whatever for inclosing its platforms or guarding persons who might be upon the same. The deceased, with his friend, boarded the train at either the rear end of the smoking car or the front platform of the adjoining first-class day coach, and proceeded immediately forward into the smoking car, where they took seats. Very shortly after the train left Hope the deceased left the smoking car to go to the dining car for the purpose of getting some cigars. He did go to the dining car, purchased the cigars, and left the dining car again, going in the direction of the smoking car. He did not return to the smoking car, and was not again seen alive. His body, in a somewhat mutilated condition, was found the next day opposite a six degree curve in the railroad track, and between the track and the waters of Pend d’Orielle Lake, at a point about six and a half miles west from the town of Hope.</p> <p>The complaint charges the railway company with negligence in leaving an opening at the side of the platform of one of the cars of its train unguarded while the train was in motion, and in running its train at a high and dangerous rate of speed around a sharp curve of the track; that by reason of this negligence the deceased was thrown from said train and killed; and that the plaintiffs are damaged because of said death in the sum of $100,424.</p> <p>These charges are denied in the answer, and as matter of affirmative defense it is alleged that the negligence and carelessness of the deceased contributed to and caused his death; that he was perfectly familiar with the trains running on said line, and knew of the unvestibuled car upon said train; that he well knew the nature of the country through which the said train was about to run, and that the track had many sharp curves, and well knew the rate of speed at which the train would run; also that he" well knew there would be great risk and danger of being thrown from the train if attempting to pass from one car to another while the train was passing through said country. For a further affirmative defense it was alleged that the deceased was not a passenger for hire, but was a purely gratuitous passenger upon the terms and conditions and subject to the provisions of a free ticket, which terms and conditions were printed on the back of said ticket, and were accepted and agreed to and signed by the deceased before boarding said train. These conditions were as follows; “This free ticket is not transferable, and, if presented by another person than the individual named thereon, or if any alteration, addition, or erasure is made upon it, it is forfeited, and the conductor will take it up and collect full fare.” “The person accepting this free ticket agrees that the Northern Pacific Railway Company shall not be liable under any circumstances, whether of negligence of agents or otherwise, for any injury to the person, or for any loss or damage to the property, of the passenger using the same.” “I accept the above conditions.” It was alleged that under this contract and agreement the railway company owed the decedent no duty whatever as a common carrier toward a passenger for hire, and was therefore not liable for any loss or damage that might have occurred to the plaintiffs by reason of the death of the said Jay H. Adams under the circumstances related. The court sustained a demurrer to this last affirmative defense, holding that as the plaintiffs did not base their demands upon any contract, but complained of a wrong resulting in an injury to them by deprivation of the support, protection, society, and comfort of their husband and father, the question as to the validity of the contract under which the defendant claimed exemption from liability was immaterial. The case proceeded to trial upon the question of negligence, resulting in a verdict against the railway company.</p>

<p>Appeal from the Circuit Court of the United States for the District of Oregon. For opinion below, see 88 Fed. 694.</p>

This is an appeal from the-judgment of the district court of the United States for the Northern district of California, affirming an order of deportation of the appellant, who was arrested in San Francisco on April 20, 1901, upon a warrant of arrest issued by the United States commissioner, Hon. E. H. Heacock, upon a complaint sworn to and lodged with said commissioner, charging the appellant with being a Chinese manual laborer without the certificate of residence required…

This is an action at law by the defendant in error, Robert H. BiEingslea, herein called plaintiff, to recover damages for personal injuries against the Kansas City Southern Railway Company and Samuel W. Fordyce and Webster Withers, as receivers of the properties of the Kansas City, Pittsburg & Gulf Railway Company, the Texarkana & Ft Smith Railway Company, and the Kansas City, Shreveport & Gulf Railway Company, herein styled defendants.

<p>1. Bankruptct—Preferences—What Constitutes—Surrender.</p> <p>■ Bankr. Act, § 57g, provides that “claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.” Section 60 provides that “a person shall be deemed to have been given a preference if being insolvent he has * * * made a transfer of any of his property, and the effect of the enforcement of such * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors oí the same class.” Section 1(25) provides that the word “transfer” shall include the sale and every other and different mode of disposing of or parting with property or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security. Held, that a delivery to a hank by an insolvent depositor of coin, legal-tender notes, bank bills, indorsed checks, and drafts to be passed to the credit of the depositor, and to be subject to his draft, was a preference, within section 60, and would have to be surrendered by the bank before it could prove the balance of its claims.</p>

The appellant filed a bill in the court below for the specific performance of a contract claimed to have been executed by John A. Wansey and Melissa D. Wansey, his wife, on September 14, 1899, by which they agreed to convey to Sidney 0. McLouth certain land in Marine City, Mich., upon which was situated a salt block, for the sum of $25,000, of which $500 was to be paid on the execution of the contract, and the balance on the execution of the deed provided for in the contract.

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

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

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

<p>1. Foreign Corporations—Service upon Agent—Effect of Withdrawal from State.</p> <p>The statutes of Illinois (Act 'July 1, 1897, as amended In 1899) requiring every foreign corporation doing business in the state to file a certificate with the secretary of state, showing, among other things, the name and address of its agent on whom service of process may be made, contain no provision requiring such corporation to give notice of its withdrawal from the state; and, in the absence of legislation on the subject, after a corporation has in fact withdrawn, and is no longer represented by the designated agent, jurisdiction over it cannot be obtained by service upon him.</p>

615,999, for a fire escape, granted to W. H. Logan, December 13, 1898. The bill Is to restrain Infringement of Letters Patent No. 615,990, granted W. H. Logan, December 13, 1898, for certain new and useful improvements in fire escapes, duly assigned to appellants.

<p>1. Patents—Invention—Combination of Old Elements.</p> <p>A combination which is not only of old parts, but of old results, without the addition of any new or distinct function, is not patentable. To constitute invention, such combination of old parts must either produce a new article of manufacture, or a new machine having a distinct character of functions, or a new result must have been obtained, in -an old one, which is due to the joint and co-operating action of all the elements.</p> <p>2. Same.</p> <p>That an aggregation of parts, taken separately from old devices, produces a device which as a whole is more serviceable or durable than those of the old art, does not render it a patentable combination where no new result of operation is attained by the co-operation of the parts in their new relations.</p> <p>8. Same—Undisclosed Functions.</p> <p>In order to entitle a patentee to the benefit of a new function claimed to result from his new combination of old elements, but which is not disclosed by his patent, for the purpose of attributing invention to his combination, such function must be one plainly inherent in the combination, and which* necessarily results when the device is constructed as taught by the patent, and not one which arises only from a particular manner of construction, which is not pointed out, nor required for the accomplishment of any result which is claimed.</p> <p>4. Same—General Use.</p> <p>The general use of a patented article is evidence of value only when the novelty or utility.of the article is a matter of great doubt, and its evidential value even in such cases is nothing upon the question of novelty when it can be attributed to other causes.</p> <p>5. Same—Rubber Tire Wheels.</p> <p>The Grant patent, No. 554,675, for a rubber tire wheel, is void for lack of patentable invention, being merely a combination of old elements selected from devices of the prior art, resulting in no new mode of operation, and in which the parts perform only the old functions in substantially the old manner.</p>

<p>1. Patents—Jurisdiction of Suit for Infringement—Nonresident Defendant.</p> <p>To sustain the jurisdiction of a circuit court in a suit for infringement of a patent against a corporation which is a nonresident of the district, under the provisions of Act March 3, 1897 (20 Stat. 695), the infringement must not only have been committed within the district, but the defendant must also have, at the time the suit is commenced, a regular and established place of business within the district. The fact that defendant had such place of business when the infringement was committed is insufficient, where for any cause it was abandoned prior to the service of process on its former agent.</p>

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

<p>1. Removal or Causes—Diversity of Citizenship—Joinder of Unnecessary Parties.</p> <p>The local manager in a state for a foreign corporation is not a necessary party to a suit by a stockholder for the appointment of a receiver and to wind up the affairs of the corporation, upon allegations that he is aiding and abetting the governing board of directors in carrying out a policy of administration which is ruinous to the corporation and detrimental to the stockholders by obeying the orders of such board in all respects; and his joinder as a defendant in such suit, brought in the state of which both he and the complainant are citizens, will not prevent the removal of the cause into a federal court, since such allegations state no ground which would warrant a decree against him personally.</p> <p>2. Same.</p> <p>The presence on the record of a merely nominal defendant, who is a citizen of the state of venue, will not defeat the right of removal by a nonresident defendant, and the rule that plaintiff’s pleading is to be construed most strongly against him should be strictly applied in determining whether such local defendant is a necessary party, where .there is reason to believe, from facts appearing in the record, that his joinder was for the purpose of defeating a removal. *</p> <p>S. Corporations—Suit by Stockholder—Missouri Statute.</p> <p>Rev. St. Mo. 1899, Ü? 1338, gives the courts of the state jurisdiction over the directors, managers, trustees, and other officers of domestic corporations at suit of a stockholder: First, to compel such directors, etc., “to account for their official conduct in the management and disposition of the funds, property and business committed to their charge”; second, to order, decree, and compel payment by them to the corporation and its creditors of all sums of money and of the value of all property which they may have acquired to themselves, or transferred to others, or which may have been lost or wasted by any violation of their duties or abuse of their powers. By the amendatory act of March 13, 1901 (Laws 1901, p. 89), the first clause of such section was made applicable to alien corporations having property in the state at suit of a local stockholder, but the second clause was omitted from such provision, and instead it was provided that the court might restrain any alienation of property, and appoint a receiver “to take charge of the business, property, or effects of such corporation, and to collect, sue for, and recover the debts and demands that may be owing * * * to such corporation.” <EelA, that the amendatory act did not enable a local stockholder in a foreign corporation to bring suit directly against the local manager to recover from him for an alleged conversion or misappropriation of corporate assets; the specific remedy provided, through suit by the receiver, being exclusive.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see note to Shipp V. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>4. Parties—Suit against Corporation for Injunction.</p> <p>An injunction against a corporation restraining it from disposing of its property is binding upon its officers and agents, and they are not necessary parties to a bill for such relief.</p> <p>6. Equity Pleading—Amendment of Bill.</p> <p>An affidavit filed in the course of a hearing on an application for the appointment of a receiver for the property of a corporation cannot be considered as an amended or supplemental'bill, where leave was not asked or granted to file an amended pleading; nor can the statements made in such affidavit render one a necessary party to the suit who was not such under the allegations of the bill.</p> <p>6. Removal of Causes—Time for Filing Petition—Waiver of Right.</p> <p>The fact that a nonresident defendant corporation appeared and resisted an application for the appointment of a receiver for its property pendente lite, made to the judge of a state court in vacation, as permitted by statute, does not affect its right to remove the cause where petition and bond therefor are filed on or before the time it is required by the laws of the state or rule of the state court to answer or plead to the complaint; nor is the right of removal barred by the taking of an appeal from an order appointing such receiver, though it would seem that the removal operates to vacate such appeal, since under the statute the controversy in its entirety passes into the jurisdiction of the federal court.</p> <p>¶ 4. See Corporations, vol. 12, Cent Dig. § 1965; Injunction, vol. 27, Cent. Dig. § 215.</p>

In Bankruptcy. On question certified from referee. Held: that petitioners were entitled to recover only the $30.

<p>1. Tug and Tow—Sinking of Tug by Capsizing of Tow—Improper Ballasting.</p> <p>A bark in ballast, while being towed by two tugs, capsized, sinking one of the tugs. The weather was no worse than should have been an • ticipated at the season. Held, on evidence showing the tugs to have been without fault, and that the accident was due to the failure of the bark to provide herself with sufficient and proper ballast, that she was liable for the injury to the tug.</p>

<p>In Bankruptcy. On petition in involuntary bankruptcy.</p>

<p>1.. Bankruptcy—Hearing before Referee.</p> <p>Where a proceeding before a referee instituted by a trustee in bankruptcy against a third person to determine the ownership of property was dismissed by the court for want of jurisdiction, the entire proceedings necessarily became null, including the findings of the referee and the taking of evidence by him; and he could not thereafter, in a new proceeding, base a determination of the same issues on the findings made In the prior proceeding, or consider the evidence taken therein, unless by stipulation of the parties.</p> <p>2. Same—Jurisdiction of Court of Bankruptcy—Controversy between Trustees.</p> <p>A court of bankruptcy has jurisdiction to determine a controversy as to the ownership of' property between the trustees of two different estates, both of which are being administered by such court.</p>

<p>In Bankruptcy. On exceptions of trustees to findings of referee allowing claim of Exchange Bank of Macon, Ga.</p>

<p>1. Public Lands—Unearned Railroad Grants—Contests between Private Claimants.</p> <p>It was the purpose of congress by Act March 3, 1887 (24 Stat. 556), and subsequent acts relating to the adjustment of unearned railroad land grants, and providing for the protection of bona fide purchasers from the grantees, to deal liberally with such purchasers so far as the technical rights of the United States on the forfeiture of the grants was concerned; but it was not the legislative intent to declare by such acts that purchasers from the defaulting companies of unearned lands should be favored over other good-faith claimants, without regard to the actual equities of the parties, and a contest between such claimants is to be determined according to the established and recognized rules of equity and public policy.</p> <p>2. Same—Homestead Settlement on Unearned Lands—Good Faith.</p> <p>The good faith of a homestead settler is not impeached by the fact that the land when he settled upon it was within the limits of a railroad grant, under which it had been withdrawn from market, where he had knowledge that the terms of the grant had not been complied with, nor the land earned thereunder, and good reason to believe that it would be restored to the public domain, as it in fact was.</p> <p>8. Same—Superiority of Equities.</p> <p>The right of a bona fide homestead settler upon public land, which, while within the limits of a railroad grant, was never earned nor patented thereunder, and to which the company and the state had forfeited their rights under the terms of the grant many years prior to his settlement, to make entry of such land under the homestead law upon Its restoration to the public domain, is superior to the right and equity of one claiming the land under a. contract of purchase from the railroad company entered into for speculative purposes, after the land bad been improved by the settler, and while he was residing thereon, with his family, of which facts the purchaser had actual knowledge.</p> <p>4. Same—Preference to Bona Fide Purchasers—Construction of Act.</p> <p>To entitle a purchaser of lands from a railroad company to a preference under the provisions of section 5, Act March 3, 1887 (24 Stat. 555), it must appear that at the date of the sale to him by the company the title to the land purchased had been conveyed by the United States to the company or to some one for its use and benefit. A conveyance by the United States of lands to a state as trustee, to be held to ascertain whether they will be earned by the company, is not a conveyance to the company or for its use, within the meaning of such section.</p> <p>5. Same—Bona Fide Purchaser.</p> <p>Under the provisions of Act Biarch 3, 1887 (24 Stat. 556), confirming the titles of bona fide purchasers of lands from á grantee railroad company whose title failed, or permitting such purchaser to enter the lands where the company had no title, a purchaser of unearned lands which have not been conveyed to the company, and which it has long since forfeited the right to earn, is not a bona fide purchaser as against one who is at the time'in the actual occupancy of such lands as a homestead claimant, and of whose occupancy he has actual knowledge.</p>

<p>In Bankruptcy. On application for homestead exemption.</p>

<p>In Bankruptcy. On proceedings against bankrupt for contempt, and on motion by creditors for an order requiring him to turn over money to his trustee.</p>

In Bankruptcy. On exceptions filed in this court to ruling of referee with respect to a claim of the Mallory Commission Company, and motion- to strike such exceptions from the files.

<p>1. Bankruptcy—Hearing before Referee—Revision of Finding</p> <p>The fact that a referee made a finding in writing as to the value of certain land, based upon evidence taken before him, but which had not then been transcribed, which finding, however, he did not incorporate in his record of the ease, does not preclude him from revising such finding, and making a new one, fixing a different value, after he has reviewed the evidence as written out. The proper practice in such case, however, would be to give notice to counsel, so that they may be reheard on the question, if desired, before the change is made.</p>

In Bankruptcy. On certificate from referee. The following is the opinion of Referee Guirkin, embracing his findings of fact and conclusions of law. On the 28th day of March, 1902, the partnership of Jones, Raper & Co. - was duly adjudicated a bankrupt by a voluntary proceeding. There has been no adjudication as to the individuals composing the partnership.

<p>In Admiralty. Suit for collision. On exceptions by claimant to report of commissioner.</p>

<p>1. Bankruptcy—Insolvency Proceedings—Fees of Receiver and Attorneys —Power of State Court to Incumber the Estate.</p> <p>After a receiver had been appointed in insolvency proceedings, the insolvent was adjudged a bankrupt, and the parties in the state court were enjoined pursuant to the provisions of the bankrupt act. Thereafter the state court entered an order that on payment of certain sums for the expenses and compensation of the receiver, and for compensation of the attorneys who secured his appointment, the receiver turn over to the trustee in bankruptcy ail the assets of the bankrupt. Thereupon application was made to the federal court, setting forth that the receiver had not sufficient funds with which to pay such fees and expenses, and that the trustee had given notice of. his intention to except to the order directing such payment, and praying an order to the effect that if the state court so modifies such order as to allow the receiver to turn over the assets of the bankrupt to the trustee, without requiring such fees and expenses first to be paid, the trustee be ordered to at once sell a sufficiency of the estate of the bankrupt with which to pay off such fees and expenses, and pay the same, and that the same shall be a first lien on all the assets of such bankrupt, and be paid in preference to any other claim against his estate. Selth, that the federal court will decline to recognize the authority of the state court to incumber assets of a bankrupt for the fees and expenses of its officers entered after the proceedings therein were suspended by the bankruptcy proceedings, especially when accompanied by a ruling that such assets will not be delivered to the Ixustee until the allowances thus made are paid.</p> <p>2. Same—Fees and Expenses in Insolvency Proceedings—Payment—Delivery of Assets to Trustee—Condition Precedent.</p> <p>Where a state court ordered that certain fees and expenses incurred in insolvency proceedings be paid before the assets of the insolvent be turned over to his trustee in bankruptcy, but did not state by whom such payment should be made, the federal court will not order that such payment be made by the trustee.</p>

<p>1. Navigable Waters—Obstructions—Liability of City.</p> <p>A city, although charged by statute with the duty of keeping the channels of navigable streams within its limits free from obstructions, cannot be held liable for injuries caused by a sunken wreck, where the owners had contracted with a wrecking company to raise the vessel, and the company was prosecuting the work with diligence, using such appliances as were in common use for the purpose, and apparently, even in the opinion of experts, with prospect of success, although the attempt ultimately resulted in failure.</p>

<p>1, New Trial—Mistake, Inadvertence, or Surprise.</p> <p>A motion to vacate a judgment rendered in the absence of defendant and his counsel, and to grant a new trial on the ground of mistake, inadvertence, and surprise, is addressed to the sound, legal discretion of the court.</p> <p>¶ 1. See Appeal and Error, vol. 2, Cent. Dig. §§ 590, 591, vol. 3, §§ 3878, 3879; Judgment, vol. 30, Cent. Dig. §§ 265, 673.</p> <p>3. Same—Showing of Diligence.</p> <p>A defendant who, with knowledge of the day on which his cause Is set for trial, fails to appear in person, or to subpoena witnesses, or make any preparation for trial, is guilty of laches, which must be excused before he is entitled to ask that a judgment rendered against him shall be set aside on the ground of mistake or surprise because his counsel did not appear, and it is not excused merely by the fact that he had employed counsel to represent him, and especially when it was an express condition of their employment that they should be paid a retainer before the trial, and it was not paid.</p> <p>~'8. Attorney and Client—Duty of Attorney—Failure of Client to Pay Retainer.</p> <p>An attorney, who has appeared and filed an answer for a defendant with the express agreement that he will not try the case unless a retainer agreed upon is paid before the time for trial, has the right to withdraw from the case or to fail to appear at the trial if it is not paid.</p> <p>4 New Trial—Mistake, Inadvertence, or Surprise—Affidavit of Merits.</p> <p>An affidavit of merits on an application by a defendant to set aside a judgment and grant a new trial on the ground of mistake, inadvertence, or surprise should show affirmatively that defendant believes his defense to the action to be good, and such belief should be founded on knowledge, and not on information only.</p>

<p>L Bankruptcy—Debts Released by Discharge—Debt Created by Fraud.</p> <p>In the provision of Bankr. Act 1898, g 17a, el. 4, excepting from the debts released by a discharge in bankruptcy debts created by the bankrupt’s fraud, embezzlement, etc., the term “fraud” means positive fraud, or fraud in fact, involving moral turpitude, as does embezzlement, and not implied fraud, or fraud in law; and a debt arising from an overpayment made to the bankrupt through mistake, which he refused to refund, is not created by his fraud, within the meaning of such provision, and is released by his discharge, although his denial of liability when advised of the mistake may have been a mere pretense.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 792.</p>

<p>1. Removal of Causes—Existence of Controversy—How Determined.</p> <p>■ Under the provisions relating to the removal of causes in the federal' judiciary act of 1887-88, which permit a petition for removal to be filed at the time, or at any time before, the defendant is required by the laws of the state to answer, the filing of an answer in the state .court, disclosing the existence of a controversy, is not essential to the right of removal, where the petition for removal states that there is a controversy.</p> <p>2. Same—Diversity of Citizenship—Action by Guardian.</p> <p>Under the statutes of Iowa the appointment of a guardian for a minor- or an insane person does not vest the guardian with title to the property of his ward or to a cause of action existing in his favor, but only with the right to manage and control the ward’s property, and to prosecute-actions in his behalf and for his benefit; and, in an action brought by a guardian for an insane person appointed by a court of Iowa, the ward is the real party plaintiff, and his citizenship, and not that of the guardian, controls with respect to the jurisdiction of a federal court or the right of removal.</p> <p>¶ 2. Diversity of citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p>

<p>1. Fidelity Insurance—Construction or Contract—Misstatements by Employer.</p> <p>A fidelity bond issued to an employer to indemnify it against loss through any defalcation of its manager provided that certain statements made by the employer relative to the duties and accounts of the employed, “together with any statements or declarations hereafter required by, or lodged with, the company, do and shall constitute an essential part and form the basis of this contract.” It further provided that “any material misstatement or suppression of fact by the employer in any statement or declaration to the company” should render the bond void. On the occasion of an annual renewal of the bond, the treasurer of the employer, on its behalf, made a certificate to the company in which he stated that on December 23d the books and accounts of the employed “were examined by us, and we found them correct in every respect, and all moneys handled by him accounted for, to the best of our knowledge and belief.” The funds of the employer were kept in bank, from which they were drawn only on checks signed by the manager; and he drew .such checks in payment of his own salary. A bookkeeper was employed, who made out monthly statements of account, which were submitted to the managing board; but such statements generally purported to show only current receipts and disbursements, and did not show the condition of the bank account or of the manager’s. In fact, at the time the certificate was made to the bonding company, no examination of the manager’s account had been made since the annual examination in the preceding February, and on December 23d he had drawn out, for his own use, $3,700 in excess of his salary, which sums had been debited to his account by the bookkeeper. During the ensuing year he became a defaulter for a large amount. Held, that the certificate of the treasurer was a material misstatement of fact, which, by the plain terms of the contract, rendered the bond void.</p> <p>&, Trial—Province or Court—Reserved Question or Law.</p> <p>Under the Pennsylvania practice, a reservation of “the question whether there is any evidence to go to the jury in support of the plaintiff’s claim” is a good reservation of a question of law; and the entering of judgment for defendant on such reserved point, notwithstanding a verdict for plaintiff, is within the province of the court, being practically equivalent to the direction of a verdict.</p>

This is a suit brought in the court below to recover the contents of certain coupons for interest belonging to bonds issued by the mayor and aider-men of Johnson City, a municipality of… Held: and out of a total of 429 votes 422 were in favor of the proposition. Bonds with interest coupons were prepared and signed by the proper city officials, and deposited with a bank to be held in escrow until the railroad company should' have performed its part of the agreement.

<p>1. Removal op Causes—Jurisdiction—Estoppel.</p> <p>One by having case removed from state to federal court is not estopped from raising question of jurisdiction, on it appearing there was nothing to confer it on the federal court.</p> <p>• 2. Same—Diverse Citizenship.</p> <p>Diverse citizenship authorizing removal of cause from state to federal court must exist at time suit is begun, as well as at time of removal, and must be made to appear.</p> <p>8. Same—Petition.</p> <p>Petition by one only of the defendants for removal of cause from state to federal court is insufficient.</p> <p>4. Same—Separable Controversy.</p> <p>There is not a separable controversy between plaintiffs and defendant bank, justifying removal of cause from state to federal court on the ground of separate controversy between citizens of different states, the complaint alleging that plaintiffs being minors, and owning land in common with defendant T., defendants fraudulently procured a sale to be made and ratified by the probate court of plaintiffs’ interest to defendant T., to be for cash, but in which no payment was made; that defendant T. then gave defendant bank a mortgage; that defendants had ever since been in possession; that afterwards a decree was obtained adjudging the probate proceedings void, and plaintiffs owners of an undivided half,—and the prayer being for an accounting, a partition, and a lien on defendants’ interest for rents and profits.</p> <p>¶ 4. Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Mineral Co., 35 C. C. A. 155.</p>

<p>1. Bankruptcy—Chattel Mortgage—Merger—Estoppel.</p> <p>The owner of a mortgage on certain personal property bought the property, and then sold it, subject to the mortgage “now subsisting upon the' said personal property, and which is assumed to be paid by” the purchaser. The purchaser was thereafter adjudged a bankrupt, and it was stipulated that the property be sold, and the money realized therefor be paid to the party entitled thereto. The trustee claimed,that the mortgage was void as to creditors, and that the- lien had merged in the legal title and was conveyed to the bankrupt. Eelút that, the purchase having been made subject to the mortgage, the purchaser and 4he trustee, who took his title, were estopped from questioning the validity of the mortgage; hence the proceeds of the sale should be paid to the mortgagee.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>The Merchants’ National Bank of Baltimore, Md., filed a bill of complaint against the Ann Arbor Railroad Company, the Toledo, Ann Arbor & North Michigan Railway Company, Wellington R. Burt, and the Metropolitan Trust Company, on behalf of itself and all other beneficiaries, setting up that the complainant owned two bonds of the Toledo, Ann Arbor & Mt. Pleasant Railway Company upon which there was due $1,314.06, the payment of which bonds had been assumed by the Toledo, Ann Arbor & North Michigan Railway Company; that on the 27th day of April, the defendant Wellington R. Burt was appointed receiver of the Toledo, Ann Arbor & North Michigan Railway Company in a suit which, with others, was consolidated under the title of the “Farmers’ Loan & Trust Company v. The Toledo, Ann Arbor & North Michigan Railway Company et al.”; that the receiver, on the 2d day of July, 1895, sold the railway property under a decree of the court; that it was the duty of the receiver to sell the property so as to bring the highest possible price, but that he misrepresented the physical condition of the road, saying that the company had “no road at all,—that they had a couple of streaks of rust running across Michigan, and part of it under water, and it was not worth a cent unless they would put money into it”; that the receiver had inspected the road, and had peculiar and exclusive means of knowing its condition, and the prospective purchasers lived at a remote distance from it, and were ignorant of its condition, and these prospective purchasers believed what the receiver said; that in fact the railroad was in a much better condition than represented by the receiver, and that by his misrepresentations and deceit he caused the prospective purchasers and the public to believe that the railroad property was much less valuable than it was; that said Burt' purchased in his own name, and for his own benefit, a large amount of bonds of the Toledo, Ann Arbor & North Michigan Railway Company, and entered into an arrangement with certain bondholders to form a syndicate to pur■chase the railroad property and to become the owners; that, in order to purchase the property at as low a price as possible, he had depressed the market value, and he and his associates were enabled, through the fraud of Burt, to purchase the property for $2,627,000, when in fact the property was worth $10,000,000; that the sale was confirmed on the 8th day of July, 1895, and the Ann Arbor Railroad Company was immediately formed and issued bonds to the amount of $7,000,000, and common and preferred stock to the amount ■of $7,250,000; and that the receiver was one of the largest bondholders of the new corporation, which is now operating and claims to own the railroad property; that knowledge of the fraud alleged in the bill of complaint had only recently come to the complainant, and then, on the 28th day of November, 1898, the complainant notified the Toledo, Ann Arbor & North Michigan Railway Company, and the directors and stockholders thereof, to commence a suit to set aside said sale, and unless they brought such suit the complainant would bring it; that the Toledo, Ann Arbor & North Michigan Railway Company is utterly insolvent, and has no property out of which claims •of creditors can be made on execution. The complainant asks that the sale and decree under which it was executed be set aside, and that a receiver be appointed to take possession of the railroad property, and that the claims against the property be ascertained. On motion the service of process on the ■defendant Burt was set aside, and he was dropped as party defendant. Afterwards the bill was amended, setting up that the Craig Shipbuilding Company, John Craig, the Farmers’ Loan & Trust Company, and the Central Trust Company were necessary parties, and the complainant was allowed to make them parties defendant. Afterwards, by leave of the comí, an amendment to the bill was filed, substituting Austin B. Fletcher as complainant, he having bought the two bonds owned by the complainant; and the amended bill also sets out that the substituted complainant, in addition, owns sixteen bonds, of the par value of $16,000, of the Toledo, Ann Arbor & North Michigan Railway Company, which bonds he owned prior to and at the time ■of the judicial sale complained of. The amended bill also states that the persons constituting the syndicate who purchased the property at the judicial ■sale knew the facts, and knew that by means of the misrepresentations of the receiver the property was being subjected to sale under gross misinformation as to its real value, and that they combined with the receiver to carry ■out the fraudulent scheme for their own benefit and to the detriment of those interested as bondholders, stockholders, and creditors of the Toledo, Ann Arbor & North Michigan Railway Company. The amended bill also states that the Farmers’ Loan & Trust Company and the Central Trust Company, respectively, were the grantees in the mortgage deeds of the Toledo, Ann Arbor & North Michigan Railway Company and its constituent companies, and were thereby constituted trustees for and on behalf of the holders of the bonds issued concurrently with and secured by the respective mortgages. In other respects, the amended bill was substantially similar to the original bill. A demurrer was filed to this amended bill of complaint, which was ■sustained. After it was sustained, another amended bill was sought to be filed, but the petition in that behalf was denied, and from the decree dismissing the bill of complaint on demurrer and the order denying the petition to file an amended bill of complaint the complainant appealed.</p>

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

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

<p>In Equity. Suit for infringement of letters patent No. 491,012, issued January 31, 1893, to Lewis E. Ericson for a bicycle bell. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 536,734, issued to Arthur J. Moxham, April 2, 1895, and No. 540,796, issued to the same inventor, June 11, 1895, both for railway switch structures. On final hearing.

<p>Action for Damages for Breach of Contract. On demurrer to petition.</p>

Action against Robert E. Kearney as principal and the other defendants as sureties on a postmaster’s bond. Jury trial waived, and case submitted to the court on the law and the facts. Findings of Fact.

<p>1. Railroads—Regulation by State—Abrogation of Common-Law Rule as to Fellow Servants.</p> <p>A state, through whose legislative consent alone a railroad company derives the right to construct and operate a railroad within its territory, may attach to such consent conditions for the protection of the lives and property of those who may be subjected to risk through the operations of such roads, and as one of such conditions it may lawfully abrogate as to railroad companies, by a general law applicable to all companies operating roads within the state, the common-law rule which exempts a master from liability for injuries resulting from tbe negligence of fellow servants.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. § 359.</p> <p>2. Same—Killing of Express Messenger in Wreck—Validity of Contract Exempting from Liability under Iowa Statute.</p> <p>Code Iowa, § 2071, provides that every corporation operating a railway shall be liable to every person, including employés, for the consequences of the neglect or mismanagement of the company’s servants, and that no contract which restricts such liability shall be legal or binding. Section 2074 declares that no contract, receipt, rule, or regulation shall exempt any railway company engaged in transporting persons or property from the liability of a common carrier, and Acts 27th Gen. Assem. c. 49, provides that no contract of insurance, relief, benefit, or indemnity in case of injury or death, entered into prior to the injury, shall constitute any bar or defense to any action based on the provisions of Code, § 2071. By a contract made in Iowa, between an express company and a messenger employed by it, the latter, in consideration of his employment, agreed to assume all risk of accidents and injuries resulting from the gross or other negligence of any corporation or person engaged in operating any railroad, or any employé thereof, whether resulting in death or otherwise, and authorized the company to contract with any railway company on his behalf that no claim should be made against it by him or his representatives on account of any such injury. By a second contract made in accordance with such authority between the express company and a railroad company, the latter agreed to furnish cars for the use of the former over its lines, and the express company agreed to protect the railroad company against liability for injuries to express messengers or agents while being transported over its line in connection with their duties. Held, that while such contracts would be effective to protect the railroad company from liability at common law, under such statutory provisions, declaratory of the public policy of the state, they were invalid, and constituted no defense to an action against it for the death of the messenger occurring in the state of Iowa by reason of the wrecking of the express car in which he was employed through the negligence and want of ordinary care of defendant or its servants, whether the messenger be regarded as an employé of the defendant or not.</p>

<p>On Rule for Contempt.</p>

<p>1. Contempt—Applying Abusive Epithets to Judge.</p> <p>A man who came into a federal district from a distant state for the purpose of inciting a strike among miners, and who there publicly denounced the judge of such district for his official action in granting an injunction, using abusive language, and applying the most opprobrious epithets to him personally, held guilty of a contempt of court</p>

In Bankruptcy. On report of referee, as special commissioner, on the claims of a general assignee under the state law for disbursements and allowances.

<p>1. United States—Bight-Hour Law—Contracts for Work in Alaska.</p> <p>The eight-hour labor law of August 1, 1892, is not applicable to work contracted for by the United States to be performed in Alaska.</p> <p>2. Army—Force and Scope of Regulations.</p> <p>The army regulations are mandatory, and are intended to govern the conduct of the army, and all work done under the superintendence of its officers, wherever assigned to duty.</p> <p>3. Same—Civilian Employes—Eight-Hour Days.</p> <p>Article 62, par. 812, of the army regulations, providing that “eight hours constitute a day’s work for all mechanics and laborers employed by or on behalf of the United States, except in cases of emergency,” is an implied condition of every contract for labor made by an army officer on behalf of the government, wherever such labor is to be performed; and where the employs is required by the officer in charge, and who represents the government, to work more than eight hours in a day, when there is no emergency, the United States is legally bound, the same as an individual employer would be, to pay for the extra work upon a quantum meruit.</p> <p>4. Same—Construction of Contract.</p> <p>Plaintiff was employed as a carpenter by a quartermaster officer of the army to work on army buildings to be constructed at Nome, Alaska, until their completion. By the contract he was to be furnished transportation to Nome, and, if he completed the term, was to be given transportation back to Seattle. He fulfilled his contract, and on completion of the buildings was discharged, and after a short delay for a vessel was furnished return transportation. Helé, that he was not entitled to wages from the time of discharge to the time of his return, his contract having terminated, by its terms, on completion of the buildings.</p>

<p>In Bankruptcy. On petition for review of an order of the referee.</p>

Objections to Petition for Intervention. This- action was brought by the plaintiff against the defendant to recover the value of 1,000 shares of the capital stock of the Roceo-Homestake Mining Company, on deposit with the bank of defendant, of which she claims to be the owner, and which the bank refused to deliver to her upon demand therefor. The amount claimed is $15,000. Petitioners herein ask leave to intervene in this action.

<p>1. Sales—Contract—Confirmation.</p> <p>Where plaintiff offered, through a broker, to sell to defendant certain cotton on specified terms, and defendant, in a letter to the broker, accepted the offer, “subject to” plaintiff’s “confirmation,” and it was the custom, in making purchases through a broker, to require confirmation of the principal, the contract was not complete until so confirmed, and, when canceled by defendant before it was so confirmed, no action could be maintained thereon.</p> <p>2, Same—Waiver, of Confirmation—Calling for Security.</p> <p>Where plaintiff’s offer, through a broker, to sell to defendant certain cotton, was accepted subject to plaintiff’s confirmation, and before confirmation there were rumors of plaintiff’s insolvency, whereupon defendant insisted that plaintiff should give security, such insistence was not a waiver of the requirement that he confirm the contract.</p>

<p>1. Customs Duties—Findings of Board of General Appraisers.</p> <p>The board of general appraisers was established to determine controverted questions of fact arising in the administration of the customs laws, and its decision on such questions should not be overruled unless clearly against the weight of evidence.</p> <p>2. Same—Classification—Jewelry.</p> <p>Findings of the board of general appraisers that hat pins, hair pins, breast pins, buckles, and other similar ornaments adapted for personal adornment, and composed of base metal, in imitation of precious metals and otherwise, some being set with imitation precious stones, were “articles commonly known as jewelry,” and as such dutiable under paragraph 434 of the tariff act of 1897, affirmed.</p> <p>8. Same—Millinery Trimmings.</p> <p>Black hat ornaments, composed of metal and black glass, made to resemble jet, are not articles commonly known as jewelry, and included in paragraph 434 of the tariff act of 1897, but are millinery trimmings, dutiable either under paragraph 112, as manufactures of glass, or under paragraph 193, as articles made wholly or in part of metal, not specially provided for, depending upon whether or not the glass is the component material of chief value.</p> <p>¶1. See Customs Duties, vol. 15, Cent. Dig. § 205.</p>

<p>1. Collision—Steam Vessels Meeting—Error in Changing Course.</p> <p>A tug witli two barges lashed to ber starboard side was passing down the Delaware river about tbe middle of tbe channel when she met a ferryboat, which was coming up near the western side. It was early in the morning, but the vessels saw each other when half a mile apart, and each showed to the other her green light. They were on courses which would have taken them past each other in safety, but when some 200 yards apart they exchanged signals to pass starboard and starboard, and the tug starboarded her helm, to give still more room, but the ferryboat, through some error, changed her course to starboard directly across that of the tug, and a collision resulted, her port bow striking the starboard bows of both barges, and injuring them, so that both sank with their cargoes. Held, that the ferryboat was solely in fault for the collision.</p> <p>2. Same—Defenses.</p> <p>In a suit to recover the value of the cargo of a barge, sunk in collision while in tow, against the vessel through whose fault the collision occurred, it is no defense to such vessel that the tug was negligent in permitting her tow to sink after the collision.'</p>

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

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

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

Suit brought in the district court of Plymouth county, Iowa, and thence removed into this court on petition of Thomas M. Thornton, receiver. On motion to remand.

<p>1. Discharge of Bankrupt—Fraudulent Conveyances.</p> <p>Where, on an application by a bankrupt for a discharge, It appears that he considered a large portion of his legal liabilities to be unjust, that in view of bankruptcy he contemplated transferring considerable property directly to his daughter, but was deterred from doing so by being warned that such proceeding would probably get him into trouble, and that he then, by a series of questionable trades, so manipulated his property that his children were benefited to the extent of several thousand dollars, at the expense of his estate, his discharge should be denied.</p> <p>3. Same—Gifts—Bights of Creditors—Limitation as to Time.</p> <p>The right of the creditors of a bankrupt to pursue and reclaim property transferred fraudulently by an insolvent debtor as a voluntary gift is not limited to such transfers made within four months of the institution of the bankruptcy proceedings.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 740.</p>

<p>1. Bankruptcy—Final Settlement of Estates—Necessity of Complete Record.</p> <p>The records in a bankruptcy matter at the time of the final closing of the estate should be full and complete, so that any one interested-may at any time ascertain from them the full facts in regard to any given transaction, without extrinsic explanation; and until such a record is made by the officers chargeable with that duty, showing a compliance with the requirements of the statute and the rules of court, a final-settlement will not be ordered.</p> <p>2. Same—Balance Sheets and Vouchers.</p> <p>Upon final settlement of a bankrupt estate, a clear balance sheet should be presented, and proper vouchers should be filed, and the balance-shown by such sheet should correspond with that shown by the statement'of the depository, in which, by the statute and rules, all funds of the estate are required to be deposited.</p> <p>8. Same—Payment of Dividends—Checks.</p> <p>Cheeks issued by a trustee in payment of dividends, if made payable to attorneys, should designate them as such, and they must also, in compliance with the rules, state the account on which they are drawn, to constitute proper vouchers corresponding with the dividend sheet. Cheeks payable to persons whose names do not appear on such sheet, which do not show what claims are covered thereby, or the authority of the payee to receive them, will not be approved as proper vouchers.</p> <p>4. Attorney’s Fees.</p> <p>The power to allow attorney’s fees is a judicial, not an arbitrary, discretion vested in the court. When the fee asked for is exorbitant, even when recommended by the referee, no fee will be allowed.</p> <p>¶ 4. See Bankruptcy, vol. 6, Cent. Dig. §§ 874, 897,</p>

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

On December 6, 1899, the Alaska & Pacific Steamship Company, a corporation created under the laws of the state of Washington, and having its principal place of business at the city of Seattle, chartered the steamship Robert Dollar from the owner thereof, who resided at San Francisco, Cal., for the transportation of freight and passengers between the city of Seattle and Cape Nome, Alaska, for a term of six months after the delivery of the vessel, which was to be between May 1…

<p>1. Involuntary Bankruptcy—Petition—Allegations of Jurisdiction—Sufficiency—Demurrer Piled as Part of Answer.</p> <p>A petition in involuntary bankruptcy against a corporation, alleging its principal place of business within the court’s jurisdiction for the greater portion of the preceding six months, and that it had property within such jurisdiction and owed debts amounting to $1,000, was sufficient on a demurrer for want of jurisdiction, which was filed as a part of the answer on which the parties went to final hearing, notwithstanding that such petition contained no allegation of the nature of the company’s business.</p> <p>2. Same—Provable Claims—Damages for Breach of Executory Contract.</p> <p>Under Bankr. Act 1898, § 59, providing for involuntary bankruptcy proceedings against a debtor by creditors having “provable claims,” and section- 63, defining provable claims as those founded on contract, and providing that unliquidated claims may be liquidated in such manner as the court may prescribe, and thereafter be provable, where a company which was furnishing its customers ice at so much per ton, payable weekly, under contracts covering a period of several years, broke such contracts and became unable to continue them in the future, the claims of the customers for damages sustained by reason of the company’s inability to fulfill the executory portions of the contracts were “provable claims” fa involuntary bankruptcy proceedings against the company.</p> <p>8. Same—Jurisdictional Amount—Damages for Breach of Contract—Sufficiency of Evidence.</p> <p>In an involuntary proceeding in bankruptcy against an ice company by former customers to whom it had agreed to furnish ice for several years at a certain price per ton, the evidence showed that only a few months of such contracts had expired when the company became unable to fulfill them; that petitioners used a thousand tons a year; that under the new contracts which they had been compelled to make they were paying an excess over the price specified in the broken contracts of from 60 cents to $1.50 per ton; that they had made unsuccessful attempts to get it cheaper; and that the price of ice fluctuated from year to year. EelA, that the evidence was sufficient to sustain a finding of damages to petitioners exceeding $500, thus entitling them to maintain their petition.</p>

<p>1. Master and Servant—Injury of Brakeman—Defective Appliances.</p> <p>Plaintiff, while employed as brakeman on a freight train on defendant’s road, was injured by being knocked from the top of a car by the spout of a water tank which hung down in nearly a horizontal position over the track. There was testimony of several witnesses tending to show that for some weeks before the accident the spout, after being used and released, would not spring back to an upright position, as it was intended to do, and that, after being raised up, it would gradually settle down again. One witness testified that this occurred within an hour previous to the accident. Held, that such evidence justified the court in refusing to take the case from the jury on defendant’s motion, as being sufficient, if believed, to sustain a finding by the jury that the injury did not result from the negligence of fellow servants, but from the defective condition of the spout and its appliances, which had existed for such length of time that defendant would have known of it if it had performed its duty of inspection.</p>

<p>1. Chinese—Deportation.</p> <p>Chinamen arrested Just after crossing into the United States from British Columbia should be deported to China under Act May 5, 1892, § 2 (27 Stat. 25), there being no evidence that they were citizens of or subjects of British Columbia, but merely that they had lived there between one and a half and three years, and had property there, and no trick being played on them in the matter of their arrest, further than that the person who drove them to the boundary line disclosed to the officers the nature of the work he was engaged in.</p>

<p>1. Chinese Exclusion—Place of Birth—Evidence—Finding—Appeal.</p> <p>Where, in proceedings for the deportation of a Chinese woman, she testified and offered other evidence to prove that she was born in the United States, which evidence was practically without contradiction, but there were inconsistencies in the evidence which might well cause its truths to be doubted, and circumstances which tended to impeach her evidence, the finding of the commissioner against such evidence should not be set aside.</p> <p>2. Same—Chinese Laborer—Prostitute.</p> <p>The term “Chinese laborers,” as used in the act of congress of May 5, 1892, entitled “An act to prohibit the coming of Chinese persons into the United States,” and the act of November 3, 1893, amendatory thereof, includes a Chinese prostitute.</p> <p>8. Same—Specification of Certain Laborers—Effect.</p> <p>The act of congress of November 3, 1893, amending the act of May 5, 1892, “to prohibit the coming of Chinese persons into the United States,” providing in section 2 that “the words ‘laborer’ or ‘laborers,’ wherever used in this act, or the act to which this is an amendment, shall be construed to mean both skilled and unskilled manual laborers, including Chinese employed in mining, fishing, huckstering, peddling, laundrymen, or those engaged in taking, drying or otherwise preserving shell or other fish for home consumption or exportation,” did not limit the meaning of such words so as to exclude any persons who were laborers within the meaning of such words as used in the treaty of 1880 (22 Stat 826).</p>

<p>In Equity.</p> <p>This is a suit in equity, m the nature of a bill of intervention, brought by the appellants (complainants below) to obtain a decree adjudging their judgment lien prior to any lien or rights of other creditors in and to the property of the American Developing & Mining Company, and for the sale of said property, and application of the proceeds thereof to the satisfaction of such lien. It appears that on March 21, 1898, one Livingston Cushing, a citizen and . resident of the state of Massachusetts, on behalf of himself and all other creditors of the American Developing & Mining Company, brought a suit in equity against said company, a Montana corporation, alleging the insolvency of the corporation, and that the complainants had become personally responsible as guarantors and indorsers for certain indebtedness of the corporation. The bill prayed that the court might administer the assets of the corporation; that a receiver be appointed to take charge of the property of the corporation, and required to pay off and discharge the notes on which the complainant Cushing was surety, and also the other debts of the corporation; that in default of such payment by the receiver the property of the corporation be sold, and the proceeds applied in accordance with law and the rules and practice of equity. The usual injunction was also prayed for. On the same day the corporation by its secretary, F. W. Bacorn, filed in court its answer to said bill, admitting all the allegations of the bill. The said Bacorn, as such secretary, also filed an affidavit describing the exact financial condition of the corporation, and a statement of its indebtedness. Thereafter, on the same day, the judge of the circuit court of the United States for the district of Montana appointed said Bacorn receiver of the said corporation and of its property, with general power to have, hold, and manage the same under the orders and directions of the court, and enjoined all creditors of said corporation from in any way intermeddling with the property directed to be turned over to the receiver. The corporation by its president on said 21st day of March, 1898, made, executed, and filed in said court a consent in writing to the appointment of the said Bacorn as receiver, and the said Bacorn thereupon filed his oath, and on the 15th Hay of April, 1898, gave his bond as receiver, and entered upon his duties as such receiver. It further appears that on the 30th day of April, 1898, the appellants herein obtained a judgment in the state court of Montana against the said corporation for the sum of $41,376.68. On June 17, 1899, about 15 months after the appointment of the receiver as aforesaid, the appellants herein instituted the present suit, alleging in their bill that the said corporation was indebted to appellants at the time the said receiver was appointed in the sum of about $40,000 upon an overdraft for moneys expended for and on behalf of said corporation; that by the entry, docketing, and recording of the transcript of the judgment of April 30, 1898, obtained in the state court, the appellants have a lien upon the property of the said corporation anterior and prior to the lien of any other creditor; that by the order of the circuit court appointing a receiver of said property the appellants are prevented from perfecting their lien upon and from proceeding against the property covered thereby, by writ of execution or otherwise; and asking that their lien be declared prior to that of any other creditor, that the receiver be directed to sell the property of the corporation and apply the proceeds to the satisfaction of their judgment lien and such other liens as may be determined by the court to exist; also that the said Livingston Cushing be enjoined from further prosecuting his suit against the said corporation. A general demurrer to this complaint was filed by the receiver, Bacorn. It was sustained by the circuit court, and the bill dismissed. The case is now before this court upon appeal from the judgment of dismissal.</p>

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

<p>1, Railroads—Injuries to Licensees—Contributory Negligence.</p> <p>Plaintiff, employed by a grain shipper to superintend the transfer of grain from loaded to empty cars on adjacent tracks, found cars so situated that he supposed they were set for that purpose. Not seeing the switch engine in sight, he stepped between the cars where the work was to be done, and was struck and injured by an empty car, which had been kicked forward by a shunted car. The switch crew had given no warning. Held, that plaintiff was not guilty of contributory negligence.</p> <p>2. Same—Duty to "Warn.</p> <p>A switch crew, knowing that the employes of a grain shipper intended to transfer grain from loaded to empty cars, were charged with a dnty to warn them of their approach, and .the danger likely to arise from cars being shunted on the tracks where they were at work.</p>

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

See 111 Fed. 290. This cause comes here upon a writ of error by the defendants below to review a judgment of the circuit court for the Southern district of New York, entered upon the verdict of the jury. The decedent, plaintiff’s son, 16 years and 7 months old, was at work, at the time of the accident complained of, on the ninth floor of the Sherry building, at the corner of Fifth avenue and Forty-Fourth street.

<p>1. Patents—Invention—Rubber Tire Wheels.</p> <p>The Grant patent, No. 554,675, for a rubber tire wheel, shows a combination of elements in a rubber tire, which, although such elements severally were old, brings them to bear in such way and with such relation to each other as to differentiate such tire from all prior inventions, and to produce new and useful results, such as to re-enforce the presumption arising from the issuance of the patent, and sustain the claim of invention, as distinguished from the mere application of mechanical skill. Such patent also helé infringed.</p> <p>8. Same—Estoppel to Dent Validity-—License.</p> <p>One who obtained exclusive rights under a patent, to run during its life, by a contract of license, in which he acknowledged its validity, which rights he has sold to another for a valuable consideration, is estopped to contest the validity of such patent; and the fact that the owner of the patent has also assigned or transferred its rights under the contract does not work such a novation as to relieve him from the operation of such estoppel.</p>

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

<p>Criminal Prosecution. On demurrer to indictment.</p>

<p>1. Attorneys—Improper Argument.</p> <p>While an attorney may properly attack In his brief In a court, In suitable terms, any particular action of the land department believed to be prejudicial to his case, general denunciation of the department is outside the limits of proper discussion, and will be stricken out by the court as disrespectful to a co-ordinate branch of the government</p>

<p>Criminal Prosecution. On demurrer to indictment.</p>

<p>1. Constitutional Law—Delegation of Legislative Power—Creation of Crimes.</p> <p>Tbe provision of the sundry civil appropriation act of June 4, 1897 (30 Stat. 11), making it a crime to violate any rule or regulation thereafter to be made by the secretary of the interior for the protection of forest reservations, is void, as in substance and effect a delegation of legislative power to an administrative officer.</p>

In Bankruptcy. Rule on Ezekiel Hunn, Jr., assignee of J. W. Mercur & Co., to turn over property in his hands. Also petition of Vulcanite Paving Company to have the firm of J. W. Mercur & Co. •declared bankrupt.

<p>Bankruptcy—Members of Firm—Firm Assets.</p> <p>A trustee in bankruptcy for individual members of a firm has no right to interfere with firm assets.</p> <p>8. Building Contracts—Right to Mechanic’s Lien.</p> <p>A building contract having expressly provided that there shall be no lien or right of lien, and being recorded as provided by Act Pa. June 26, 1895 (P. L. 869), so as to be binding on subcontractors and material men, provision that final payment shall not be due till all mechanics’ liens and material men shall have acknowledged full payment by the contractor is merely for the protection of the owner, and gives no right of lien:</p> <p>8. Partial Assignments — Rights as against General Assignment fob Creditors.</p> <p>Where the debtor admits the debt constituting the fund for distribution, and commits its disposition to the court, which has all the parties interested before it, and the fund is made up of the 20 per cent, withheld till final settlement from estimates of amount done by a contractor under his building contract with the debtor, and no work was done after the general assignment for creditors by the contractor, except that the debtor finished the building, partial assignments by the contractor, prior to his general assignment, will be given preference to the general assignment.</p> <p>¶1. See Bankruptcy, vol. 6, Gent Dig. §§ 229, 428.</p>

Action in assumpsit, brought to the superior court of New Haven county, and removed to this court by defendant under Rev. St. § 634.

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

<p>In Equity. Suit lor injunction. On final hearing.</p>

<p>1. Interest—Debts of Insolvent Corporation—Effect of Receivership.</p> <p>Where a court of equity has taken possession of the property of an insolvent corporation for distribution, a creditor is not entitled to interest on his claim after the appointment of the receiver, although he is given priority by reason of his having a lien on property of the corporation, when there has been no attempt to enforce such lien, but the claim is paid from the general funds in the hands of the receiver.</p> <p>2. Building and Loan Associations—Preferences in Insolvency—Withdrawing Members</p> <p>Shareholders in a building and loan association to whom certificates of indebtedness were issued on their withdrawal, for the value of their stock, ceased to be shareholders and became creditors, and, on a subsequent winding up of the association in insolvency, they are. entitled to payment before distribution is made to shareholders, in the absence of any evidence of fraud in the transaction.</p> <p>8. Same—Holders of Pull-Paid Stock.</p> <p>Holders of so-called full-paid stock issued by a building and loan association in accordance with its by-laws, differing from ordinary stock only in that it is paid for in advance, and is to receive a fixed dividend instead of sharing pro rata in the profits of the association, are shareholders, and not creditors, and on the winding up of the association in insolvency are not entitled to preference over the holders of installment stock.</p> <p>¶ 2. See Building and Loan Associations, vol. 8, Cent. Dig. § 88.</p>

<p>In Bankruptcy.</p>

In Bankruptcy. On exceptions to report of special master in a proceeding instituted by the trustee in bankruptcy of Rosenthal & Reliman to recover the proceeds of property sold by defendant as trustee in a chattel deed of trust executed by the bankrupts for the benefit of creditors.

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

<p>In Equity. Consolidated causes. On intervention of Robert S. Adams and the Charleston & Western Carolina Railway Company. Exceptions to master’s report.</p>

<p>1. Plea in Bar—General Replication—Not Admission that Plea is Sufficient.</p> <p>Under equity rule 33, providing that, “if upon an issue the facts stated in a plea are determined for the defendant they should avail him so far as in law or equity they ought to avail him,” the filing of a general replication to a plea in bar is not an admission of the sufficiency of the plea.</p> <p>8. Same—Former Judgment—Identity of Issues.</p> <p>Where, in a suit to enjoin defendants from extracting ore from a certain mine, defendants filed a plea in bar that in a suit for the same purpose, brought by the grantor of complainant against these defendants, they had judgment, and it appears that in such suit they denied that the complainant therein owned the mine, and also denied that they had extracted any ore therefrom, and it does not appear on which of such issues the case was decided, the plea is insufficient.</p> <p>¶1. See Equity, vol. 19, Cent. Dig. §§ 485, 658, 664.</p>

<p>1. Removal of Causes—Amount in Controversy—Petition.</p> <p>Where, in an action for injunction to restrain the excavation of defendant’s lot for a building, the petition on which the cause was removed from a state court alleges that matter in dispute exceeds, exclusive of interest and costs, the value of $2,000, and there is no direct averment in the pleadings, as to the value or means, by which the court can determine that it is less than $2,000, a motion to remand on the ground of insufficient value in controversy should be denied.</p> <p>2. Injunction—Building—Noise and Jar—Sick Neighbor.</p> <p>Where it is necessary for defendant, in erecting a house on his lot, to drill and blast in a stratum of solid rock in the lot, and such work, so far as done, has been done 'in a careful manner, and without damage to other property, the prosecution of such work cannot be enjoined because plaintiff, occupying a house on an adjoining lot, is, by reason of disease and an operation, in such a feeble condition, and so sensitive to any noise or jar, that his life may be endangered by such blasting.</p> <p>If 1. Jurisdiction of circuit courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Shoe Co. v. Roper, 36 C. C. A. 459.</p>

<p>L Bankruptcy—Trust Funds—Lien of Cestui—Necessity of Tracing Funds.</p> <p>Where a bankrupt, having possession of the property of another, with authority to sell on account of the owner, the proceeds to be immediately handed to such owner, sold the property, and delivered the proceeds, with a larger sum of other money, to a broker, where the most of it was lost in stock speculations, and there is no evidence that the stocks remaining in the hands of the broker and recovered by the trustee of the bankrupt were purchased with such proceeds, such owner has no lien on such stocks as against the trustee.</p> <p>2. Same.</p> <p>Where a bankrupt, having possession of the property of another, with authority to sell on account of the owner, and pay the proceeds to him, sold the property, and deposited the proceeds in a bank to such bankrupt’s own account, which included his own money and an unascertainable amount of other trust funds, though more than such proceeds, and afterwards checked out the moneys until there was less remaining than such proceeds, such owner cannot establish a lien on the whole or any part of the balance of such account remaining in such bank.</p> <p>8. Same—Petition for Lien—Pleading.</p> <p>On the hearing of a petition by a creditor of a bankrupt to be awarded a lien on certain assets on the ground that they were derived from trust funds' belonging to such creditor, the trustee may oppose the petition without pleading.</p>

<p>1. Streets—Dedication—Maps and Surveys.</p> <p>The mere making of a survey and a map platting land in lots and streets, but which is not recorded nor exhibited to the public, and in reference to which no lots are sold, is not a dedication of such streets to the public.</p> <p>2. Same—Maps—Biding—Sale of Lots—Effect.</p> <p>Where one makes a map platting his land in lots and streets, files it in a public repository, and sells lots on such map with reference thereto, he thereby permanently dedicates such streets to the public, notwithstanding that the public is not bound to maintain them until the dedication has been accepted by the proper public authority.</p> <p>8. Judgments—Res Judicata—Identity of Issues.</p> <p>An adjudication of dedication of a street, based on evidence of the acts of a former and of the present owner, without particular reference to the acts of either, is not res judicata as to dedication by the former owner.</p> <p>¶ 2. See Dedication, vol. 15, Cent. Dig. §§ 35, 37, 46.</p>

Appeal by Importer from a Decision of the Board of United States General Appraisers. The merchandise in question consists of crude tartar, the product of Algeria, exported from Marseilles, France.

<p>1. Bankruptcy—Allowance of Pees by Referee—Review.</p> <p>Allowance of fees by the referee in bankruptcy to himself and the trustee is reviewable, though under his order payment has been made to the trustee; his account never having been presented to or passed on by the court, as required by Gen. Orders in Bankr. 26, 35, and the funds having been drawn without the warrant being countersigned by the judge, or one designated by him to do so, in contravention of order 27.</p> <p>2. Same—Commissions—Dividends.</p> <p>“Sums to be paid as dividends,” on which referees and trustees are allowed commissions by Bankr. Act 1898, §§ 40a, 48a, are what remain after payment of taxes and priority claims in full, as provided by sections 64a, 64b; section 65a providing that dividends shall be paid on all al- • lowed claims, except such as have priority or are secured.</p> <p>3. Same—Compensation for Notices.</p> <p>Under Gen. Order in Bankr. 35, par. 2, providing for compensation to the referee for expenses necessarily incurred in giving notices, he cannot, in case of re-examination of a claim, be allowed for notices to creditors other than one provided for by order 21, par. 6, to the creditor whose claim is to be re-examined, or for notices on distribution of money to preferred creditors; Bankr. Act 1898, § 58, providing only for notice of payment of dividends, or for notice of protest against confirmation of sale, and none being required by the act or general orders.</p> <p>4. Same—For Investigations as to Specific Liens.</p> <p>In the absence of any provision therefor in Bankr. Act 1898 or the general orders, compensation cannot be allowed a referee for investigation and finding in the usual and ordinary way in cases of specific liens.</p> <p>6. Same—Allowance for Stenographers.</p> <p>Except where the stenographer is employed on application of the trustee, as provided by Bankr. Act 1898, § 38a, cl. 5, or there has been a stipulation of the parties, or money has been deposited for the expense as provided by general order 10, the referee cannot be allowed for expense of stenographer.</p> <p>& Same—Allowance to Trustee—Equity Powers.</p> <p>The court.under its equity power will allow the trustee a commission for selling, not exceeding what would have been allowed a master commissioner,—J., mortgagee of the timber land constituting the main value of the lumber plant of bankrupt, having filed a bill to foreclose; it having, on consultation between the trustee and J.’s attorney, with assent of the referee, been concluded that if the mortgage was foreclosed, and the land sold under the decree apart from the mill properties, and bought by J., the mill properties would be of no value to any one else, whereas, if all could be sold at one time, free of incumbrance, the whole would bring more than if sold separately, and suggestion having been made and carried out, without objection, that J.’s. attorney prove up his claim in bankruptcy, dismiss the foreclosure suit, and petition the referee for sale of the property free from incumbrance, and appropriation of enough of the proceeds of the sale of the land for payment of the mortgage debt, and sale having been made accordingly by the trustee on order of the referee.</p> <p>¶ 1. Appeal and review In bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p>

<p>In Equity. In the matter of the intervening petition of Joseph R. Leeson and John Hopewell, Jr. On motion for a preliminary injunction.</p>

<p>In Bankruptcy.</p>

<p>1. Coi.ltston—Running Steamers Abreast—Suction.</p> <p>Where two steamers were proceeding down a river on a clear day in a broad channel from 200 to 400 feet apart, running abreast of each other, and the suction created thereby caused one of the steamers to sheer beyond control, and come into collision with a barge, and the evidence showed that the colliding steamer was the overtaking vessel, and as such was illegally running abreast of the other steamer, she was thereby wholly at fault, and liable for the damages sustained.</p>

In Equity. On demurrers to bill. On December 15, 1901, the board of mayor and councilmen of the city of Ensley passed an ordinance “to prescribe and fix licenses for businesses, occupations, professions and vocations in the city of Ensley, Alabama, for the year 1902." The first section ordained “that the following be and the same is hereby declared to be the schedule of licenses for the year 1902, for divers businesses, professions, occupations, and vocations carried on or…

<p>In Admiralty. On exceptions by libelants to answer of respondent.</p>

<p>1. Bankruptcy—Judgment Liens—North Carolina Statute.</p> <p>Under Code N. C. § 435, a judgment rendered against a bankrupt more than 10 years prior to his bankruptcy is not a lien upon his real estate, nor provable as a debt against his estate in bankruptcy, unless it has been renewed, as provided by statute.</p>

<p>In Equity. Exceptions to master’s final report in partition. See 114 Fed. 517.</p>

<p>In Bankruptcy. On petition by trustee and answer of Andrew Brady.</p>

In Bankruptcy. On certificate by referee of question concerning application of the National Cash Register Company for possession. The certificate of the referee was as follows: “I, Henry G. Newton, one of the referees of said court in bankruptcy, do hereby certify that in the course of the proceedings before me the following question arose pertinent to the said proceedings: The trustee found among the assets of the- bankrupt a cash register.

<p>1. Bankruptcy—Exemptions—Georgia Statute.</p> <p>The provision of Code Ga. § 2830, that “it shall be the duty of each and every person who claims the benefit of the exemption allowed in this article * * * to act in perfect good faith,” and that the exemption shall not be allowed to a claimant who is guilty of fraud, has reference to the $1,600 homestead exemption, and not to the $300 exemption.</p> <p>2. Same—Findings op Fact by Referee—Review.</p> <p>The rule that a finding of the referee on the facts will not be interfered with by the court unless clearly erroneous is particularly applicable to a finding as to the good or bad faith of the bankrupt in connection with his claim to an exemption under the law of Georgia, which makes such good faith material.</p>

<p>1. Bankruptcy—Involuntary Proceedings—Amendment of Petition.</p> <p>An order dismissing a petition in involuntary bankruptcy on tbe ground that it stated no act of bankruptcy will not be set aside, and tbe filing of an amended petition permitted, setting up other'acts of bankruptcy, of a different character from those attempted to be charged in the original petition, unless the omission to state such grounds therein is excused, and it appears that the allowing of the amendment would be clearly in furtherance of justice.</p> <p>¶1. See Bankruptcy, vol. 6, Cent Dig. § 128.</p>

<p>Petition for Mandamus. On motion to quash order for alternative writ and to dismiss, and on demurrers to said petition.</p>

At Law. Trial by the court, a jury trial having been waived. This action was begun September 29, 1898, by the plaintiff, who was appointed receiver of the Commercial National Bank of Denver, Colo., by the comptroller of the currency, to recover of the defendants, as executors of Richard E. Hungerford, the amount of his statutory liability under the constitution and laws of Kansas, as stockholder in the Western Farm Mortgage Trust Company, a Kansas corporation.

Appeal by J. B. Carberry & Co. from a decision of the board of United States general appraisers, which affirmed the decision of the collector of customs at the port of New York. The following is the opinion of the board of general appraisers: The protestants imported a number of bottles, which appear to have been once used, and which they claim are entitled to free entry as old junk, under the provisions of paragraph 588 of the act of 1897.

On Demurrer to Complaint. This is an action to recover the sum of $154, paid by plaintiff under protest as a tax claimed by defendant to be due on $77,796.14 under the war revenue act of 1898. This sum is called “Profit and Loss” on plaintiff’s books, and “Undivided Profits” on the brief of plaintiff’s counsel.

<p>Appeal by the United States from a decision of the board of United States general appraisers, which reversed the decision of the collector of customs at the port of New York.</p> <p>The following is the opinion of the board of general appraisers:</p> <p>The merchandise covered by the protest consists of cotton cloth' of the following description: (1) It is bleached. (2) It contains under 50 threads to the square inch, counting both warp and filling. (3) It cost over 9 cents per square yard. The goods were assessed for duty at 25 per cent, ad valorem, under paragraph 253 of the tariff act of August, 1894, and are claimed to be dutiable at V£ cents per square yard, under paragraph 252 of said act. Paragraph 253, under which the assessment was made, provides, among other kinds of cotton cloth, for bleached cotton cloth, of various specified weights, “exceeding fifty, and not exceeding one hundred, threads to the square inch, counting the warp and filling.” Then follows a proviso, which reads in part as follows: “Provided, that in all cotton cloth, not exceeding one hundred threads to the square inch, counting the warp and filling, * * * bleached, valued at over nine cents per square yard, twenty-five per cent, ad valorem; and dyed, colored, stained, etc., * * * valued at over twelve cents per yard, there shall be levied, collected, and paid a duly of thirty per cent, ad valorem.” The language of this paragraph is awkward in its grammatical arrangement, but must be construed to imply that the phrase, “there shall be levied, collected, and paid,” etc., has reference as well to the words “twenty-five per cent, ad valorem” preceding, as to the words “thirty per cent, ad valorem” following it. The collector obviously so construed it in making the assessment of the duties in question. The claim made in the protest is that the goods in. question are more specifically provided for in paragraph 252, which enumerates “cotton cloth, * * * not exceeding fifty threads to the square inch, counting-the warp and filling, * * * bleached, one and one-fourth cents per square-yard.” The contention is that the proviso to said paragraph 253 applies only to the goods described in that particular paragraph, and not to those mentioned in the preceding one, i. e., to bleached cotton “exceeding fifty, and not exceeding one hundred, threads to the square inch,” and not to cotton cloth under, or not exceeding, 50 threads to the square inch. The rule as to a proviso is that it is generally “to be construed with reference to the immediately preceding parts of the clause to which it is attached, and limits only the passage to which it is appended, and not the whole section or act, or at least only the section with which it is incorporated.” Endl. Interp. St. §’ 186; Lehigh Co. v. Meyer, 102 Pa. 479. The case of Marine v. Packham, 3 C. C. A. 210, 52 Fed. 579, which was decided by a divided court, cannot be construed to be in conflict with this well-settled rule of statutory construction. In re Salomon (C. C.) 55 Fed. 285. We accordingly hold that the proviso in question does not apply to said paragraph 252, but only to paragraph 253, to which it is attached. The protest is sustained, and the collector’s decision reversed, with instructions toreliquidate the entry accordingly.</p>

Appeal by A. Keppelmann from a decision of the board of United. States general appraisers, which affirmed the decision of the collector of customs at the port of New York. Held: in effect, that the term alizarine or artificial alizarine, as used in the tariff acts of 1894 and 1897, has acquired a definite, fixed meaning, by which it is limited to such dye stuffs as are derived from anthraeine. The protests are overruled, and the assessment of duty affirmed in eách case.

Appeal by R. F. Downing & Co. from a decision of the board of United States general appraisers, which affirmed the decision of the •collector of customs at the port of New York. The following is the opinion of the board of general appraisers: The protests are against the assessment of duty on certain old cannon imported from Cuba.

<p>Appeal by J. H. Rossbach & Bros, from a decision of the board of United States general appraisers, which affirmed the decision of the collector of customs at the port of New York.</p> <p>The following is the opinion of the board of general appraisers:</p> <p>The goods are the hides of the East Indian buffalo, a domesticated animal of the bovine species, not to be confounded with the bison of North America. They were assessed for duty as hides of cattle at 15 per cent., under paragraph 437 of the act of July, 1897, and are claimed to be entitled to free admission under paragraph 664. Lexicographers define cattle as “domesticated bovine animals” and the buffalo as a “bovine ruminant.” We find that the hides in question are cattle hides, and affirm the assessment of duty.</p>

<p>1. Salvage—Salving op Capsized Dbbelict.</p> <p>Two tugs awarded compensation for services rendered in salving a capsized schooner, which was a derelict, and her cargo.</p>

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

<p>In Bankruptcy. On objections to discharge.</p>

<p>{. Corporations—Suit by Stockholders—Appointment of Receivers and Granting of Injunction.</p> <p>A bill by minority stockholders of a private corporation against the corporation, which alleges that it is insolvent or in imminent danger of insolvency, gross mismanagement, inefficiency and inattention on the part of the managing officers, resulting in great loss to the stockholders, and that the managing officers had perpetrated a fraud on complainants and the other stockholders in the purchase of property owned by certain of such officers, and which prays for a dissolution of the corporation, the appointment of a receiver and for an injunction restraining the officers and agents of the corporation from interfering with his management of the property, but to which no creditor is made a party, which does not allege that any debts are due and unpaid, or that creditors are pressing their demands, and which shows that the purchase of the property objected to was made pursuant to a vote of the stockholders, states no facts showing danger of irreparable injury from delay, such as to warrant the court, under Rev. St. § 718, in granting an injunction, or in appointing receivers, without notice to the-defendant.</p> <p>2. Same—Bill to Set Aside Purchase of Property—Equity Rule 94.</p> <p>Where such bill was amended by making the former owners of tiu¡ property purchased by the corporation parties defendant and attacking the validity of the purchase, it came within the operation of equity rule 94, as one founded upon a right existing in favor of the corporation; and under such rule it was not maintainable, in the absence of statements therein setting forth with particularity the efforts of ■ the plaintiffs to secure such action as they desired on the part of the managing directors and the shareholders, and the causes of their failure to obtain such action.</p> <p>¡5. Same—Grounds for Appointment of Receiver.</p> <p>Insolvency alone will not authorize the appointment of a receiver for a private corporation at suit of a minority stockholder, but, to warrant such appointment, the insolvency must have been brought about by the fraud or gross mismanagement of the officers or directors of such a character as to create a clear necessity for the interference of the court to protect the interests of stockholders.</p> <p>4. Same.</p> <p>A court appointed receivers for a private corporation, and granted an Injunction at suit of a minority stockholder, without notice to the corporation, on the ground of insolvency and fraud and mismanagement on the part of the managing officers. The defendant answered, denying all such' allegations, and moved for a discharge of the receivers and a dissolution of the injunction. A report of the receivers placed the value of the property of the corporation at nearly double the amount of its liabilities. No creditor joined in asking the appointment of the receiver, but, on the contrary, it was shown-that nearly all the creditors and a large majority of the stockholders opposed the receivership. The alleged fraudulent action of the officers, which consisted in the purchase of property owned by two of the directors, was shown to have been taken pursuant to the unanimous vote of the stockholders present or voting at a meeting called to consider the purchase. The charges of mismanagement were also controverted by affidavits showing that the corporation had been prosperous until the year preceding the suit, and that its losses during that time were due, in part at least, to general business conditions. Reid, that under such showing it was error to continue the receivership or the injunction.</p> <p>¶3. See Corporations, vol. 12, Cent. Dig. § 2203.</p> <p>6. Same—Dissolution—Bill by Minority Stockholders.</p> <p>A bill by minority stockholders of a private corporation praying its dissolution on the ground of insolvency and that its business is being carried on at.a loss, but which does not allege any act which is illegal, fraudulent, or ultra vires, nor show any action on the part of plaintiffs to induce a change of management either by the officers or stockholders, does not present a case for equitable relief, nor authorize a circuit court of the United States, in the absence of statute, to take the property of the corporation from its possession and management.</p> <p>6. Appeal—Review op Interlocutory Order—Power to Direct Dismissal op Bill.</p> <p>On appeal from an interlocutory order granting or continuing an injunction the appellate court may direct the dismissal of the bill, where it is found to be without equity to support it.</p>

Appeals from the Circuit Court of the United States for the Southern District of Ohio. These four separate appeals involve subcontractors’ liens asserted under a statute of Ohio against the property of the Great Southern Fireproof Hotel Company at Columbus, Ohio.

<p>1. Mechanic’s Lien — Affidavit of Subcontractor — Sufficiency under ■ Ohio Statute.</p> <p>Bates; Ann. St. Ohio, §' 3185, requires a subcontractor, in order to be entitled to a mechanic’s lien, to file an affidavit, which shall contain an “itemized statement” showing the value and amount of labor done or materials furnished, and also “a copy of the contract if it is in writing.” An affidavit filed thereunder contained a copy of a contract by which the claimant agreed to furnish, to be used in a building, for a lump price, “certain described scenery, stage work, fixtures, and properties,” “as set forth in detail in a certain specification, which is marked ‘A,’ attached to, and is hereby made a part of, this contract.” The affidavit also stated that it'contained an itemized statement of account, marked “Exhibit A.” But a single paper marked “Exhibit A” was filed, which was in the form of an account including a large number of items of stage scenery, ptc., but with no price attached to such items. Held, that under the liberal construction to be given to the statute, in accordance with the rule of the supreme court of the state, such exhibit might fairly be considered as constituting both the specification of the contract and the itemized statement of account, and that the affidavit was sufficient to entitle the claimant to a lien, in the absence of any evidence showing that it did not truthfully and intelligibly describe both the items contracted for and those furnished.</p>

This was an action for libel, brought by John C. Underwood against S. A. Cunningham and the Book Agents of the Methodist Episcopal Church South.

On December 3, 1896, John O’Rourke commenced an action in the district court for the Second district of the state of Montana against the Grand Opera House Company, a corporation, as defendant, and joined in his complaint two causes of action,—one upon a promissory note of the corporation for $762; the other for $585, claimed by O’Rourke to have been paid out by him for the corporation.

<p>1. Public Administrator—Unknown Death—Unclaimed Assets.</p> <p>While congress might properly provide that money found on a dead body floating on the high seas, to which no claim is made by heirs or personal representatives, should be paid into the federal treasury, yet, in the absence of legislation, money so found and brought into the custody of a United States district court on the libel of salvors is properly ordered paid over, after allowance of salvage, to the state statutory public administrator, especially when with a reservation of any rights of the federal government therein.</p> <p>2. Same.</p> <p>Unclaimed assets of a decedent, which are in the custody of a United States district court, are within the purview of Pub. St. Mass. c. 131, § 2, providing that the public administrator in. each county shall administer on the estates of persons who die leaving property to be administered, and not leaving a known husband, widow, or heir in the commonwealth.</p> <p>8. Same.</p> <p>Unclaimed assets of a decedent, which are in the registry of a United States district court, though sitting customarily or always in a particular county, may be administered on, in the absence of special determining circumstances, such as residence, priority of proceedings, etc., in any county in the district, as the fund is ubiquitous in each county; and the fact that a dead body floating on the high seas is brought to shore in a certain county, the assets found thereon being libeled by the salvors in the United States district court, usually sitting in another county, does not make the first county the place of administration to the exclusion of the second. U. S. v. Borcherling, 22 Sup. Ct. 607, 185 U. S. 223, 46 L. Ed.-, applied.</p>

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

The Perris irrigation district, the plaintiff in error, was the defendant in an action at law brought by Robert H. Thompson, the defendant in error, to enforce the payment of certain bonds and coupons.

This is an action upon three negotiable bonds of the independent school ■district of Riverside, which aggregate §2,000, and upon certain coupons attached to them. The case was tried by the circuit court, and a special finding of facts has been made. The constitution of the state of Iowa limited the lawful indebtedness of this district to 5 per cent, of its assessed valuation. Article 11, § 3.

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

<p>In Error to the Circuit Court of the United States for the District ■of Utah.</p> <p>John Strickley, the defendant in error, who will hereafter be called the plaintiff, brought an action in. one of the district courts of the state of Utah .against the Highland Boy Gold Mining Company, a corporation, the plaintiff in. ■error, which will hereafter be called the defendant. That action was removed to the United States circuit court for the district of Utah, and thereupon the ■plaintiff filed an amended complaint. In this complaint he alleged that he was the owner of the Argonaut No. 1 placer mining claim in West Mountain mining district in the state of Utah; that the defendant had erected an aerial tramway across a portion of his claim, which was supported by towers or stations resting thereon; that he had been injured thereby in the sum of $5,000; that he had notified the defendant to vacate the premises, but that corporation had refused to do so, and that it was continually trespassing upon his premises by operating the tramway to transport its ores across his land. He prayed for the possession of the premises, for $5,900 damages, and for an injunction forbidding the defendant from continuing its trespasses upon his property. The defendant by its amended answer, upon which the case was tried, denied the ownership of the mining claim by the plaintiff, denied that he had been damaged by the acts of the defendant in any sum exceeding $100, admitted that it had constructed and that it was operating a tramway over the mining claim described in the complaint, and that it had been requested to vacate the premises and cease its operations. “And for a further answer, by way of. equitable defense,” it alleged that It was the owner of, and was working, mining claims in the West Mountain district, and was smelting its ores about 18 miles away from its mines; that its mines were situated at a considerable height above Bingham gulch, and about two miles distant from it; that the only railroad in the mining camp was in this gulch; that it was necessary for the defendant to get Its ores down to the railroad, in order to transport them to the smelter; that it had constructed the tramway a distance of 959.7 feet over the Argonaut No. 1 placer mining claim, and had sustained it by supporting towers resting thereon, and was operating it by gravity and steam power, for the purpose of transporting its ores from the mines to the railroad; that at the time it constructed the tramway the placer claim was unoccupied, and that the plaintiff knew that it was building the towers and constructing the tramway at the time that it built them, but made no objection until after it had expended the necessary funds to put them in operation. The defendant averred that it was willing and offered to' pay whatever damages might be assessed for the appropriation of the right of way over' the mining claim for its tramway, and prayed that no judgment for its ejectment from the portion of the premises occupied by its tramway be rendered, but that the plaintiff have judgment only for the damages for the permanent use and occupation of the strip of land across the claim occupied by the tramway. The case was tried by a jury. The plaintiff proved his title to the mining claim, waived any claim for damages, and rested. Thereupon the defendant called a witness, John Boitano, who testified that there was a pit on the Argonaut No. 1 placer mining claim that he had worked in for many years. He was asked how much he was able to make the full working day, and answered: “It is pretty hard to tell what you can make; one day you might make ten, and—.” When the plaintiff objected to the question, counsel for the defendant stated that the purpose of it was to show the value or lack of value of the land. The court sustained the objection, the defendant excepted, and offered to show by the witness on the stand and other witnesses that the value of the land from which the plaintiff sought to eject the defendant did not exceed $25. The court sustained the objection of the plaintiff to this offer, and the defendant excepted. There was evidence tending to show that the plaintiff knew that the defendant was constructing the tramway at the time it was built, and that he was present upon or near the premises, and took no action regarding the matter. The court instructed the jury to return a verdict for the plaintiff, and the defehdant excepted to this instruction. Judgment was rendered in accordance with the verdict, and the defendant sued out this writ of error to reverse it.</p>

<p>1. Admiralty—Jurisdiction— Set-Ofp.</p> <p>Admiralty will not také jurisdiction of a mere legal or statutory set-off, but proceeds with reference to the topic to which set-off relates on broad equitable principles.</p> <p>¶ 1. See Admiralty, vol. 1, Cent. Dig. § 327.</p>

<p>Appeal' from the Supreme Court of the Territory of Oklahoma.</p>

<p>1. Evidence—Absence of Discussion of Character Evidence of Good Reputation.</p> <p>The fact that one who has long been acquainted with a witness and his associates has never heard any discussion or remarks concerning his-character is excellent evidence of his good character and good reputation. Testimony that one’s reputation for truth and veracity is good is not rendered incompetent by the statement of the witness on cross-examination that it had never been brought up to him before.</p> <p>2. Indictment—Charge of Sale of Liquor to Persons to Grand Jurors Unknown.</p> <p>A charge in an indictment that the defendant sold liquors to divers ■ Indians of the Ponca tribe to the grand jurors unknown sufficiently specifies the buyers, in the absence of evidence that their names were known to the grand jury.</p> <p>(Syllabus by the Court)</p> <p>¶ 2. See Intoxicating Liquors, vol. 29, Cent. Dig. §§ 238, 239.</p>

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

<p>1. Injury to Employe—Negligence—Pleading—Defective Car Coupler.</p> <p>Two acts of negligence as causes of tile accident, one being the use of a car on which the coupler was in such condition that it would not work properly and couple by impact, are charged by a petition which at length describes the faulty condition of the coupler, avers that its condition was due to defendant’s negligence, and made it necessary for plaintiff’s intestate to go between the cars, and that, while there, other cars were negligently kicked against the cars to be coupled, causing him to be crushed.</p> <p>2. Same—Statutes—Pleading.</p> <p>That the statute may avail plaintiff, it is not necessary or permissible that the petition in an action for injury from a defective car coupling cite or refer to Act Cong. March 2, 1893, relative to couplings on ears used by carriers in interstate commerce.</p> <p>8. Same—Right to Benefits.</p> <p>Though an employé, in an action for injury from defective car coupling, does not, by his argument or otherwise, indicate that he is relying on Act Gong. March 2, 1893, relative to couplings on cars of carriers engaged in interstate commerce, the court may and should instruct as to his rights thereunder.</p> <p>4. New Trial—Surprise.</p> <p>Though defendant was taken by surprise by the court’s calling the attention of the jury to a statute, this is not ground for new trial, it having made no request when the court, at the end of the charge, inquired whether there was any point or matter as to which instruction was desired, and it not being shown or claimed that defendant has evidence which will change the facts on which the court held the statute was to be considered.</p> <p>5. Same.</p> <p>Defendant having known the condition of a car coupler was an issue of fact in the case; and the question of its actual condition having been thoroughly gone into, and evidence having been introduced by both parties, it cannot have a new trial on the theory that, if it had foreseen the court was going to cite a statute on the question of the legal obligation resting on it as to couplers, it might perhaps have had further evi- • dence on the question of fact.</p> <p>6. Instructions—Pleading and Evidence.</p> <p>Though a petition in action for injury from a defective car coupling does not allege that the car was used in connection with interstate commerce, the fact appearing in the evidence, the court may instruct that Act Cong. March 2, 1893, is applicable.</p> <p>7. Master and Servant—Car Couplers.</p> <p>Act Cong. March 2, 1893, requiring ears used in moving interstate commerce to be equipped with couplers coupling automatically, applies to a car designed for interstate traffic, though at the time being hauled empty.</p> <p>8. Same—Proximate Cause—Concurrent Causes.</p> <p>Failure to equip a car with a coupler coupling automatically, by reason, of which a car coupler was obliged to go between the cars, where he was crushed, is a proximate cause of the accident, though the ears were forced together by the negligent kicking of other cars against them.</p> <p>9. Same—Car Couplers.</p> <p>A carrier, by permitting couplers, originally sufficient, to become worn out and inoperative, is within the prohibition of Act Cong. March 2, 1893, against using cars in interstate commerce not equipped with couplers' coupling automatically.</p> <p>10. Same—Assumption of Rrsx—Instruction.</p> <p>It must be shown that an employé, claimed to have assumed the risk of the manner in which work was done, knew, or had means of knowing, how it was done; and an instruction that, if it was the custom to do the work as it was done when he was injured, he assumed the risk, is properly refused, no reference being made to knowledge or means of knowledge.</p> <p>11. Same—Custom—Applicability.</p> <p>The question of the custom of kicking back cars, under ordinary circumstances, without notice, is immaterial, but that of ordinary care under an exceptional situation is presented where the first cars kicked down did not, by reason of a defective automatic coupler, couple to' the standing car, but separated from it a few feet, and deceased went between them to manipulate the coupler, and other cars were kicked back, crushing him; and it was claimed that the circumstances were sufficient to show the other members of the switching crew that the first coupling had not been made, and-that he had gone between the cars.</p> <p>12. Death—Excessive Damages.</p> <p>Verdict for $9,000 for death of a man 29 years old, with a life expectancy of 35 years, he being sober, industrious, and of good habits, and earning from $75 to $78 per month, is not so excessive as to justify reduction.</p> <p>18. Pleadings—Amendment—Variance.</p> <p>Under Code Iowa, § 3597, making variance immaterial where the adverse party was not actually misled to his prejudice, and providing for amendment only where such party was so misled, plaintiff need not file an amendment to petition, because of variance, where defendant is es-topped to say that it was misled thereby.</p>

<p>1. Tax Titus'—Equity—Fraud.</p> <p>Where one acting as attorney in fact or agent of a bank secured a sale of its lands for taxes after it went into the hands of‘receivers, and purchased the tax title thereto, such title is void in equity for fraud, though regular in other respects, and according to the state statutes.</p> <p>2. Depositions—Objections—Sufficiency.</p> <p>The mere interposition of the word “objection” in depositions, or the statement that one or the other party excepts, is not sufficient to raise the questions on the hearing by the court.</p> <p>¶ 2. See Depositions, vol. 16, Cent. Dig. §§ 324r-326.</p>

This case was submitted upon an agreed statement of facts, the substance of which is as follows: In December, 1888, the defendant company issued its policy of insurance upon the life of George F. Putnam. It was a 20-year policy upon the endowment plan. If the insured survived the 20 years he was to receive 85,000 or other substantive equivalent. In the event of his death within the period, the policy 'was made payable to his executor, administrator, or assigns.

<p>1. Marine Insurance—Implied Warranty.</p> <p>In a contract for marine insurance, a warranty of seaworthiness of the Vessel insured is implied.'</p> <p>2. Same—Burden of Proof.</p> <p>In an action for loss under a marine policy, the burden of showing a loss within a peril insured against is on the libelant.</p> <p>8. Same—Cause of Loss.</p> <p>Where a vessel insured was old and in bad condition, and was loaded with a heavy deck load, and during the night sunk at the head of a pier to which she was fastened, and it was claimed by the libelant in an action on the policy that the loss was caused by the vessel striking a hidden pile as the tide fell, but the evidence showed that at the time the vessel began to leak and sunk the tide was high and that she was probably not so injured, the libelant failed to sustain the burden of proof that the sinking was from an accident, and not from the unseaworthiness of the vessel.</p> <p>¶1. See Insurance, vol. 28, Cent. Dig. § 583.</p> <p>' Marine insurance, see notes to Dauagh v. The Dunbritton, 19 O. C. A. 465; Pacific Mail S. S. Co. v. New York, H. & R. Min. Co., 20 C. C. A. 357.</p>

Motion to Remand to State Court. The complaint filed in this suit in the state court contains five counts. In each count plaintiff, Thompson, claims damages of the defendant for personal injuries sustained by him while a passenger on'the defendant’s road, between Bel Mina and Huntsville, Ala., on January 7, 1901.

In Equity. On demurrer to bill. For opinion of supreme court on certified questions from court of appeals and copy of bill, see 22 Sup. Ct. 770, 46 E. Ed.-.

Action at law to recover damages for the death of a minor son of the plaintiffs caused by the negligence of the defendants Arthur Flynn, John Doe, and Richard Roe in connection with their work as linemen in the service of their codefendant, the Sunset Telephone & Telegraph Company. Heard on motion to remand to the state court, in which the action was commenced. Motion denied.

<p>1. Federal Court—Jurisdiction.</p> <p>Guaranty Co. v. Hanway, 104 Fed. 369, 44 C. C. A. 312, followed as to the proposition that an action against an agent appointed by the shareholders of a national bank to close its affairs is a suit which alises under the laws of the United States, of which a federal court has jurisdiction.</p> <p>2. Lease—Covenants—Action—Answer—Demurrer.</p> <p>A lease provided that the premises should be used as business offices, and for no other purpose,' and that on default by the lessee the lessors might take possession, and relet the premises at the risk of the lessee. On the lessee becoming insolvent, the lessors took possession, and thereafter brought an action under the lease to recover an amount equivalent to the rent reserved and accruing since they took possession. The answer alleged that responsible parties were ready and offered to take a lease at a rent greater than that reserved, but that plaintiff arbitrarily refused to accept said parties as tenants of the premises. The names of the proposed tenants were not stated, nor when the offer to rent was made, nor facts showing their responsibility, nor that they would use the premises for office purposes only. Held, that a demurrer to such answer should be sustained.</p>

<p>1. Collision—Ship at Anchor—Presumption.</p> <p>Where a collision occurs between a bark lying at anchor and a steamship, it will be presumed that the collision resulted from the fault of the steamship, and such presumption of innocence in favor of the bark can only be overcome by a clear proof of a contributory fault.</p> <p>2. Same—Evidence.</p> <p>Where a steamship came into collision with a loaded bark lying at anchor in the Delaware river, and the steamship was guilty of negligence in not maintaining a lookout forward, and the steamer claimed release by reason of the fact that the bark’s anchor light was not burning, while the bark contended that the anchor light was mistaken by the steamer’s pilot for one of the range lights, and that a wrong course was thereby adopted, such evidence sufficiently proved that the bark was anchored dangerously near the channel, and therefore that both vessels negligently contributed to the collision.</p> <p>¶1. See Collision, vol. 10, Cent Dig. 103.</p>

<p>L Admiralty—Carriage of Goods—Car Float—Loss of Car—Negligence of Fellow Shipper—Sufficiency of Evidence.</p> <p>Libelants owned, certain pig lead loaded on two cars which were in process of transportation on a car float owned by a wharf transfer company. Respondent ran a train of cars onto the float when it reached a float bridge, and libelants’ cars were precipitated overboard, with loss of the lead. Evidence examined, and held to require a decree for libelants.</p>

<p>1. Mortgage Lien—Improvement by Lessee.</p> <p>A feed wire, placed on the poles of an electric railway by the lessee ■ for its own convenience, and not in lieu of other equipment, its lease requiring that the property be returned in as good condition as when received, was not subject to a prior mortgage with a subsequently acquired property provision, given by the lessor upon all the property and equipment.</p>

<p>1. Bailboad Station—Cab Drivers—Solicitation op Business—Injunction.</p> <p>A railroad company may enjoin persons from entering its station for the purpose of soliciting the custom of incoming passengers for cabs, carriages, express wagons, and hotels.</p> <p>2. Same—Occupation op Adjoining Streets and Sidewalks.</p> <p>Persons engaged in transferring passengers and baggage to and from a railroad station have a right to occupy the sidewalk and street adjoining the main entrance in so far as necessary for the transaction of their business in the delivery and receipt of passengers and baggage, but they are not entitled to occupy such places for the purpose of soliciting business.</p> <p>8. Same—Enjoining Occupation.</p> <p>The railroad company may enjoin the use of the sidewalk and street for the purpose of soliciting business.</p>

<p>In Bankruptcy.</p>

<p>1. Corporations—Foreign—Right to Do Business—Protection of Property.</p> <p>In an action by a New York corporation against a township in New Jersey, a declaration alleging that the defendant with force and arms injured and damaged 200 telegraph and telephone poles standing in such township, the property of plaintiff, and that defendant willfully, wantonly, and maliciously, with force and violence, destroyed a part of a telegraph line in operation in such township, to plaintiff’s damage, states a cause of action, notwithstanding the New Jersey corporation act (section 387), providing that, until.a corporation has complied with its provisions, it may not transact business in the state; since the prohibition to transact business does not subject the property of a corporation to wanton destruetion.</p> <p>¶ 1. See Corporations, vol. 12, Cent. Dig. §§ 2543, 2544.</p>

Appeal by James W. Roche from a decision of the board of United States general appraisers, which affirmed the decision of the collector of customs at the port of New York. The following is the opinion of the board of general appraisers in Re Thompson, which was followed by the board in the case at bar: The goods are pickled limes. They were assessed for duty at 40 per cent., under paragraph 241, Act 1897, and are claimed to be exempt from duty under paragraph 559.

<p>1. Creditors’ Bill—When Lies.</p> <p>A widow’s share of rents and' profits of lands in which she has right of dower unassigned is liable for her debts, and may be reached by creditors’ bill in the hands of the persons receiving them.</p> <p>2. Same—Description of Property.</p> <p>A creditors’ bill sufficiently describes property sought to be reached where defendants will probably understand what is meant.</p> <p>¶ 1. See Creditors’ Suit, vol. 14, Cent. Dig. § 35; Dower, vol. 1Y, Cent. Dig. $ 218.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Iowa.</p> <p>This is a suit in equity to rescind a release of a claim for personal injury on the ground of fraud, undue influence, and mistake. The complainant, Lucy A. Wilcox, was a widow, and she had been engaged in the occupation of nursing for 10 years. She was 65 years of age. On December 22, 1898, as she was standing in a passenger car of the defendant, it was suddenly started, and she fell and broke the neck of the femur of her left leg. One week after her injury she compromised her claim against the railway company, and executed a written release of it for $600 and the agreement of the company to pay her doctors’ bills. On March 14, 1901, she exhibited her bill in this suit to rescind this release. In this bill she alleged that her release was obtained by the fraud, undue influence, and circumvention of the agents of the defendant, in that the physician of the latter, who was attending her, and the agent of the company informed her that her injuries were temporary, and that she would be well and able to attend to her ordinary avocation within a year, when the injuries were permanent, and she never could recover. She averred that she did not know the serious character of her injury, but relied on the statement of the physician, and was induced thereby to make the settlement and to execute the release. There were general averments of fraud on the part of the company and of incompetence to contract on the part of the complainant, but these allegations were not sustained by the evidence, and the answer denied all the equities of the bill. After a hearing the court below found that the complainant was competent to make the settlement when she signed the release, and that the agentsi of the defendant were not guilty of any fraud, deceit, or wrongdoing in procuring it, but that the release was executed under a mistake of the probable time she would be incapacitated by her injury, and on account of this mistake it rendered a decree rescinding the contract of settlement. Ill Fed. 43|>. The railway company has appealed from this decree.</p>

The agreed statement of facts, and the statute referred to in the opinion of the court, are as follows: “Agreed Statement of Facts. First. That defendant, Tsoi Sim, is a female of Chinese descent, and was born In China on February 14th, 1879. Second.

<p>1. Patents—Infringement—Hand Stamps.</p> <p>The Hill patent, No. 344,903, for a hand stamp, held valid and infringed.</p> <p>2. Same—Damages Recoverable.</p> <p>Only nominal damages are recoverable for infringement of a patent, where it appears that for a time the owners made and sold the patented article without marking it “patented,” and giving the date of the patent, as required by statute, and it is nob shown that defendant was notified of infringement, and continued to infringe thereafter.</p>

<p>L Trial—Courts—Jurisdiction after Term.</p> <p>Where a motion for a continuance was filed, but not prosecuted, and a judgment of “neither party” was entered, the court lost jurisdiction of the cause at the conclusion of the term, and had no power thereafter to grant an application to open the default.</p> <p>¶ 1. See Judgment, vol. 30, Cent. Dig. § 264.</p>

<p>Appeal by the United States from a decision of the board of United States general appraisers, which reversed the decision of the collector of customs at the port of New York.</p> <p>The following is the opinion of the general appraisers:</p> <p>All of the merchandise covered by these protests is of the same character, and was returned in one case by the local appraiser as “acetate of copper and verdigris, the latter being subaeetate of copper,” and in the remaining cases as a chemical salt. It was assessed in each case, under paragraph 3 of the tariff act of 1897, at 25 per cent, ad valorem, as a chemical compound not specially provided for in said act, and is claimed to be free of duty, under paragraph 694 of said act, which places on the free list “verdigris, or sub-acetate of copper.” In U. S. v. Dueas, 24 O. O. A. 121, 78 Fed. 339, the circuit court of appeals for the Second circuit construed the corresponding paragraph (749) of the tariff act of 1890, and decided that acetate of copper, though a variety of verdigris, was dutiable, under paragraph 76 of said tariff act, as a chemical compound, and was not entitled to free entry, under paragraph 749 of the same act, as verdigris or subacetate of copper; or, in other words, that the article intended to be exempt from duty was the kind of verdigris known as subacetate of copper. The only question in this ease, therefore, is whether the article covered by the protests is subacetate of copper. It appears from the testimony taken at the hearing that the article is used for hat and wool dyeing as a mordant to logwood, and that acetate of copper is worth about 100 per cent, more than subacetate of copper; or, in other words, that the latter article is sold for about 18 cents or 19 cents a pound, while acetate of copper is sold at from 35 cents to 50 cents per pound. The weight of the testimony, in our opinion, supports the conclusion that the article is a subacetate of copper, as claimed in the protests.</p> <p>The protests are all sustained, as far as this claim is made, and the collectors’ decisions are reversed, with instructions to reliquidate the entries accordingly.</p>

<p>1. Shipping—Injury to Cargo—Improper Stowage.</p> <p>Where barrels of cod oil were stowed in a compartment of the hold of a vessel partly filled with wool, another compartment being available, and the barrels were laid on their bilges in a single tier upon' a wooden bedding, separated from each other by hanging pieces of wood, no attempt being made to secure them, and during the voyage some of the barrels were broken open and the wool saturated, the steamship was answerable for such damage on the ground of negligent stowage.</p> <p>2. Same—Peril of the Sea.</p> <p>Where weather encountered on a voyage was not more severe than was to be expected at that season of the year and in the locality traversed, peril of the sea is no defense to an action for injuries to goods from improper stowage.</p> <p>8. Same—Bills of Lading—Limitation of Liability.</p> <p>A shipowner is not relieved from liability for injury to goods caused by improper stowage by a limitation of liability in the bill of lading, declaring that the vessel shall not be answerable for damage caused by any act or omission, negligence, malfeasance, default, or error of judgment of the stevedores or1 other persons in the service of the shipowners; improper stowage, whether due to carelessness or a mistake in judgment on the part of the stevedores, being a fault in improperly loading the cargo for which the vessel is liable.</p> <p>4. Same—Liability for Negligence.</p> <p>A provision in a bill of lading relieving a shipowner from liability for the negligence of stevedores and persons in his employ is ineffective, and will not be enforced in the federal court of admiralty.</p> <p>¶ 3. Limitation of owner’s liability, see note to The Longfellow, 45 C. O. A. 387.</p>

<p>Appeal by Dana & Co. from a decision of the board of United States general appraisers, which affirmed the decision of the collector of customs at the port of New York.</p> <p>The following is the opinion of the board of general appraisers:</p> <p>The merchandise is ferrochrome. It was assessed for duty as an. unwrought metal at 20 per cent., under paragraph 183 of the act of July, 1897,'' and is claimed to be exempt from duty as chromate of iron or chromic ore, under paragraph 520, or to be dutiable at 10 per cent., under section 6, or at $4 per ton by similitude, under paragraph 122 and section 7. Similar claims were overruled in G. A. 3715, and the collector’s decision in classifying the article at 20 per cent., under section' 3, Act Aug., 1894, was affirmed. This decision was recently reversed by the circuit court for the Southern district of New York in Re Dana & Co., 91 Fed. 522, the court holding that ferrochrome was dutiable, as claimed, at $4 per ton, under paragraph 110, Act 1894, by similitude with ferromanganese. The government has appealed from the decision of the circuit court of appeals, but it is unnecessary to await the final result of that issue for the determination of cases arising under the act of 1897. Paragraph 183 of the act of 1897 enumerates “metals unwrought,” a provision not contained in the act of 1894. We find that ferrochrome is a metal unwrought. Being thus specially enumerated, it cannot be classified by similitude, arid the protests are overruled accordingly.</p>

Suit in equity by subjects of the king of Great Britain, residing in Ireland, for a decree establishing their rights as the legal heirs of John Sullivan, deceased, and to set aside and annul an alleged nuncupative will of said deceased, and a decree of the superior court of the state of Washington, for King county, admitting the same to probate.

<p>1. Exchanges—Property Right in Quotations—Protection in Equity.</p> <p>The Board of Trade of the City of Chicago has at least a qualified property right in the quotations made on its exchange based on transactions between its members and gathered by its own employés, and in their distribution, and in such right it is entitled to protection by a court of equity, as against one who obtains and uses such quotations without complying with reasonable regulations established by it as a condition to the right of others to receive and use its quotations.</p> <p>¡2. Same—Claim of Public Right in Quotations—Province of Courts.</p> <p>In the absence of legislative action, a court of equity is not authorized to deny relief to a corporation conducting a market exchange merely because the chancellor is of the opinion that its business, originally private, has grown to such magnitude and assumed such impon..nee that the public is entitled to an interest therein, and to a control thereof commensurate with that interest. When such a condition arises, the measure of the public control is limited by the extent of the public interest, and the initiative in declaring a public use and the making of regulations pertaining thereto are of legislative, and not judicial, cognizance.</p> <p>•8. Same—Right to Equitable Relief—Illegality of Business.</p> <p>The rules of the Board of Trade of the City of Chicago prohibit gambling transactions on its exchange, and impose upon both parties to a sale for future delivery the obligation to deliver and receive the commodity sold, and in view of such rules all sales made thereunder are presumptively valid, and the burden of proof rests upon one asserting the contrary to show that neither party to the transaction contemplated an actual delivery; nor does the mere fact that gambling transactions may be carried on in its exchange, in violation of its rules, establish the claim that the organization is a bucket-shop concern, doing business in violation of the laws of the state, and therefore not entitled to maintain a suit in equity to protect its property right in its market quotations, it being indisputable that it transacts a vast amount of legitimate business.</p> <p>¶1. See Exchanges, vol. 21, Cent. Dig. § 16,</p>

<p>1. Removal of Causes—Separable Controversy—Suit to Quiet Title.</p> <p>A suit to quiet title, brouglit in a state court against a number of defendants, for tbe purpose of obtaining an adjudication of all claims adverse to complainant which may exist In favor of any of the defendants, and in which the bill contains no averment that defendants claim through a common source of title or of right, is severable as to each defendant, and a defendant who is a citizen of a different state from complainant may remove the cause as against him unto the federal court.</p> <p>¶ 1. Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Mineral Co., 35 C. C. A. 155.</p>

<p>1. Jurisdiction of Federal Courts—Federal Question—Requirements of Pleading.</p> <p>To confer jurisdiction of a suit between citizens of the same state upon a federal court on the ground that legislation of a state which it is sought to have declared invalid impairs the obligation of a contract or deprives complainant of his property without due process of law, and that, therefore, the questions involved arise under the constitution of the United States, it must appear from complainant’s pleading that there is a legal contract subject to impairment, or that complainant has become vested with property rights in the particular thing of which he is alleged to have been deprived.</p> <p>8. Same—Protection of Constitutional Rights.</p> <p>A street railroad company which has acquired a franchise to construct its line has a property right therein of which it cannot be deprived without due process of law, and also contract rights which cannot be impaired by the state by subsequent legislation; but, before it can invoke the provisions of the constitution of the United States for the protection of such rights by a suit in a federal court, it must show that it has done all the things required under the laws of the state to vest it with the contract and property rights which it seeks to protect.</p> <p>8. Same—Vested Rights of Street Railroad Company—New York Laws.</p> <p>Under the constitution and statutes of New York, the consent of the municipal authorities is a condition precedent to the right to construct a street railroad, and a company incorporated under the general statute for the purpose of constructing and operating a railroad in the streets of the city of New York, upon the surface or underground, which never obtained the consent of the city authorities, acquired no property rights merely by the filing of a map and profile of its proposed line, nor did it become vested with any contract rights with the state subject to impairment by subsequent legislation, and it cannot upon a bill showing such facts maintain a suit in a federal court to enjoin the city from constructing a railroad along or under the streets selected for its line, under the provisions of the rapid transit act (Laws N. Y. 1891, c. 4, as amended), on the ground that such act impairs the obligation of a contract or deprives it of property without due process of law.</p> <p>4. Street Railroads—Rights in Streets—Consent of Municipality.</p> <p>The action of the authorities of the city of New York in giving consent to the construction of an underground railroad in the streets of the city, under the rapid transit act of 1891, cannot inure to the benefit of a corporation organized prior to the passage of such act for the purpose of constructing such a road so as to vest it with a precedent right.</p> <p>5. Same—Forfeiture of Charter—Nonuser.</p> <p>Under the law of New York, a corporation organized under the general incorporation act of 1850 as amended in 1867, for the purpose of constructing and operating a street railroad, forfeited its charter where it failed to obtain the consent of the municipal authorities or the property owners to the construction of its line within five years, as required by the act.</p> <p>¶1. Jurisdiction of federal courts in cases involving federal question, see notes to Bailey v. Mosher, 11 C. O. A. 308; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 O. C. A. 7.</p> <p>See Courts, vol. 13, Cent. Dig. §§ 95S, 957.</p> <p>0. Federal Courts—Following State Decision—Validity of Statutes.</p> <p>The New York rapid transit act of 1891 having been declared valid under the state constitution by the highest court of the state, such decision is conclusive upon a federal court.</p> <p>7. Constitutional Law—Equal Protection of Laws—Validity of New York Rapid Transit Act.</p> <p>The New York rapid transit act of 1891, which authorizes the rapid transit board provided for therein to contract for the construction of an .underground street railroad in the city of New York “with any person, firm, or corporation which in the opinion of the board shall be best qualified to fulfill and carry out such contract,” is not subject to the objection of unconstitutionality as depriving other companies desiring to construct a road on the same line of the equal protection of the laws.</p> <p>¶ 6. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p>

The question for decision involves the right of the Dayton Hydraulic Company, as lessor of a certain leasehold estate, to be paid the rentals which have accrued thereon since the appointment of a receiver for the lessee, the Columbia Straw Paper Company. The material facts are as follows: The Columbia Straw Paper Company is a corporation organized in 1892 under the laws of New Jersey.

<p>1. Public Lands—Suit by United States for Cancellation of Patent— Defenses.</p> <p>Where a patent has been issued to a railroad company for land to which an individual had acquired a prior right under the homestead law, the United States is under an obligation to convey the land to the rightful claimant, which entitles it to maintain a suit to cancel the patent, but in such suit, which is in fact one between private parties, involving no public interest or right, the court may properly take into consideration the equities as between the real parties in interest.</p> <p>2. Same—Suit for Benefit of Private Person—Defense of Laches.</p> <p>At the time of the passage of an act making a railroad grant, and of the withdrawal thereunder of the lands within its limits from entry, a certain tract within the indemnity limits was covered by a valid homestead filing. This filing was subsequently canceled on a contest, and the contestant then sought to file a homestead claim thereon, but was denied the right, by the local land office, on the ground that the land had been withdrawn under the railroad grant. The land was afterward selected by the railroad company as indemnity land, and was . patented as such, and sold by the company to a purchaser who had no knowledge or notice of the homestead claim, which was not of record. After the purchaser and his grantees had been in possession for 16 years, and had paid for the land, suit was brought, by the United States against the railroad company and its grantees, to cancel the patent, for the benefit of the homestead applicant. It was 30 years after the original sale of the land by the company before subpoena in the suit was served on its grantees. Under the statute of the state, an action at law to recover land was defeated by 15 years’ adverse possession. Held, that the knowledge of the homestead claimant of the existence of his claim during the years the land was held by defendants was attributable to the United States, and that its right to maintain the suit in his interest was barred by laches.</p>

In Equity. Suit for infringement of letters patent No. 622,247, for a lubricated bearing for electric ceiling fan motors, issued to Charles R. Meston April 4, 1899.

<p>1. Patents—Infringement—Hose Supporters.</p> <p>The Gorton patent, No. 552,470, for a hose supporter, held not infringed on a motion for a preliminary injunction.</p>

<p>In Bankruptcy. On review of findings of fact and law by the referee with respect to claim of James E. Moore.</p>

On Motion to Remand Cause to State Court. On the 21st day of January, 1902, the county of Montgomery brought suit in the city court of Montgomery against “John J. Cochran as principal, and the Fidelity & Deposit Company of Maryland, a corporation existing under the laws of the state of Maryland, as surety,” for breaches of Cochran’s official bond as county treasurer.

<p>1. Bankruptcy—Provable Debts—Notes Paid by Surety.</p> <p>A testatrix by her will divided her residuary estate equally between her daughters, providing that in case either should be indebted to her upon any liability, whether absolute or contingent, the amount of such liability should be deducted from her share of the estate. The will further provided that, if the husband of either daughter should be indebted to testatrix, such indebtedness must be paid to her executor before his wife should be entitled to her share of the estate. At the time of testatrix’s death, the husband of one daughter was indebted to her for money borrowed by him for which he and his wife had given their joint notes, and the wife was also indebted on notes of her own. In settlement of the estate, the executor turned over to her all of such notes as part of her share, with the consent of all parties in interest, and the husband subsequently paid some of his notes. Held, that the will evidenced no intention on the part of testatrix.to benefit her daughters’ husbands, but clearly contemplated payment by them of any indebtedness to her estate, and that the transaction by which the wife of one received his notes was equivalent to her payment of them with her own money, which gave her the right by subrogation to enforce them against him, or to prove them against his estate in bankruptcy.</p> <p>2. Same—Payment of Debt by Wife as Surety—Right of Subrogation</p> <p>The law of Massachusetts, which holds contracts between husband and wife to be unenforceable either at law or in equity, does not prevent a wife who has signed notes with her husband as a joint maker, but who is in fact a surety thereon, from proving the notes against the estate of her husband in bankruptcy, where she has paid the same with her own money; her right in such case not being dependent upon the contract with her husband, but upon the equities arising out of the transaction by which she is subrogated to the rights of the creditor.</p>

<p>In Bankruptcy. On specifications of objection to discharge.</p>

<p>1. Bankruptcy—Jurisdiction op Bankruptcy Court—Proceedings against Third Persons.</p> <p>A court of bankruptcy has jurisdiction to cite a third person to show cause why he should not be required to surrender for cancellation an instrument purporting to convey property of the bankrupt which it is alleged by the trustee was never delivered or became effective, and to determine upon the answer of the person so cited whether it has final jurisdiction to adjudicate the matters in issue.</p> <p>8. Same—Service op Process Outside op District.</p> <p>Bankr. Act 1898 confers no power on a court of bankruptcy to summon before it by a rule to show cause third persons who are not parties to the record and who reside without the district and state, and are there served with the order, and under the general rules of law governing the federal courts, in the absence of express authority, such service is ineffectual to confer jurisdiction in personam.</p>

<p>1. Constitutional Law—Impairment of Contract—Stockholders in Corporations.</p> <p>A charter of a corporation which authorizes the issuance of common stock, preferred stock, and bonds, and gives the corporation the right to increase the bond issue “for any object in and about its business,” and to decrease its capital stock by purchasing certain shares for retirement, does not create a contract which entitles a stockholder to permanency in the relative proportions of the different classes of stock or of stock and bonds, which is impaired by an act of the legislature authorizing corporations to issue and sell bonds for the purpose of retiring stock.</p> <p>2. Same—Statute Amending Charter of Corporations—Effect of Reservation of Power.</p> <p>Where the general incorporation statute of a state reserves to the state the power to alter, suspend, or repeal the charter of any corporation, in the discretion of the legislature, such reservation becomes a part of the contract of every stockholder in a corporation organized thereunder; and an amendatory act authorizing such corporations to increase their bond issues, for the purpose of retiring a portion of their stock, is not unconstitutional, as impairing the contracts of stockholders.</p>

<p>On Appeal from Clerk’s Taxation of Costs.</p>

<p>1. Tariff Duties—Sheet Steel Strips.</p> <p>Strips of steel from 1 to 6 inches wide, in coils of 100 feet or more in length, varying in thickness from No. 10 wire gauge to No. 30, and shaped by passing through cold rolls, are, when of sufficient value, dutiable under Tariff Act 1894, par. 124, providing for sheet steel in strips, valued above 4 cents per pound: otherwise, under paragraph 122, providing for steel in all forms and shapes not otherwise provided for.</p>

<p>In Bankruptcy. On review of referee’s decision with reference to-claim of Wachusett Bank.</p>

<p>At Law. On motion to dismiss and motions for direction of verdict.</p>

<p>1. Customs Duties—Scientific Books—Unbound Sheets.</p> <p>Printed sheets of an English work on anatomy, imported unbound, and comprising all of the book except the first few pages, which had been printed in this country by the American publisher, were admissible free of duty, under paragraph 410 of the free list in the tariff act of 1894, as a “scientific book.”</p>

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

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

<p>Appeal from 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 California.</p>

<p>In Equity. Final hearing on pleadings and proofs to enjoin the use of the words “Vichy” and “Grande Grille” on packages and in advertisements of certain salts of bicarbonate of soda manufactured in this country by the Keasbey & Mattison Company.</p>

<p>Exceptions to Master’s Report on Allowance for Costs, Disbursements, and Counsel Fee to Withdrawing Attorney.</p>