Volume 117 — Federal Reporter

On February 6, 1900, the Siegel-Hillman Dry Goods Company, a corporation, was adjudged a bankrupt on the petition of its creditors, which’was filed on December 30, 1899: Pour months before the filing of the petition, the Fourth National Bank of St. Louis held a claim of $60,000 against’ this corporation, which was evidenced by a series of promissory'notes signed by the company, and indorsed by H. A. Loeb and B. Hillman, which amounted to $35,000, and by -another series of…

<p>1. Principal and Surety—Subrogation—Surety Who Pays Acquires No</p> <p>Better Right than Former Holder of Claim.</p> <p>A surety who pays the debt of his principal is subrogated to the rights of the holder of the claim which he pays, but he takes it subject to its disqualifications and limitations. He acquires no higher or better rights than its prior holder.</p> <p>2. Bankruptcy—Indorser or Surety Taking Up Preferred Claim —Re-</p> <p>turn of Preference.</p> <p>An accommodation maker, indorser, or surety on the obligations of a bankrupt, who pays and takes them up after the principal debtor has given a preference to the original holder thereon, is debarred from an allowance of a claim against the estate of the bankrupt either for the-amount owing by the bankrupt upon the obligations or for the amount that the surety paid to take them up until the amount paid to the original holder in preference is returned to the estate of the bankrupt.</p> <p>8. Same—Indorser or Surety for Bankrupt Is a Creditor.</p> <p>An indorser, an accommodation maker, or a surety on the obligation of a bankrupt is a creditor under the act of 1898, and a payment on such an obligation by the principal debtor while insolvent to the innocent holder of the contract within four months before the filing of the petition-for adjudication in bankruptcy will constitute a preference which will debar the indorser, accommodation maker, or surety from the allowance of any claim in his favor against the estate of the bankrupt unless the amount so paid is first returned to that estate.</p> <p>4. Construction—Unequivocal Language not Subject to.</p> <p>There is no safer or better settled canon of interpretation than that where language is clear and unambiguous it must be held to mean what it plainly expresses, and no room is left for construction.</p> <p>(Syllabus by the Court.)</p>

<p>1. Jurisdiction of Federal Courts—Diversity of Citizenship—Suit by Assignee.</p> <p>A federal court is without jurisdiction of a suit on a cause of action existing in favor of a partnership, brought by one partner in his own right and as assignee of the interest of his copartner, unless the bill shows that the citizenship of the assignor is such that the suit might have been maintained in that court by the firm.</p> <p>8. Same—Jurisdictional Averments—Necessary Parties.</p> <p>Plaintiff and another contracted as partners to do certain work in the construction of a railroad as subcontractors. By a contract between themselves, previously made and known to the principal contractor, it was agreed that plaintiff should furnish the materials and do the work, and receive and disburse the money received therefor, accounting to his associate only for a share of the net profits of the contract. After the completion of the work plaintiff brought suit in a federal court to enforce a mechanic’s lien, filed in the name of the partnership, for the balance due therefor under the contract, alleging such facts in his bill and that no net profits were earned under the contract. Held, that it was competent for plaintiff to allege, for jurisdictional purposes, the contract between him and his nominal partner, and that under such agreement the citizenship of such partner did not affect the jurisdiction of the court, since he had no interest in the recovery and was neither an indispensable nor necessary party.</p> <p>S. Mechanics’ Liens—Construction of Statute—“Structures.”</p> <p>The mechanic’s lien law of Oregon of 1885 (Laws 1885, p. 13), which gives a lien for labor performed upon or material furnished to be used in the construction of “any building, wharf, bridge, ditch, flume, tunnel, fence, machinery, or aqueduct, or any other structure or superstructure,” under the rule of construction applied to it by the supreme court of the state, includes a railway by the term “other structure.”</p> <p>4. Same—Oregon Statutes—Application to Railroads.</p> <p>Under the rule that repeals by implication are not favored, and that two statutes on the same subject shall stand together, and both be given effect, if practicable or possible, the general mechanic’s lien law óf Oregon (Laws 1885, p. 13), as applied to railroads, was not repealed by implication by the special act of February 25, 1889 (Laws 1889, p. 75), which gives liens to a class of creditors not embraced within the terms of the general act, as well as to the same class, and provides a different method of procedure for their enforcement, but both statutes may be sustained as giving to the latter class a cumulative remedy as against railroads.</p> <p>5. Same—Property Affected—Right to Enforce against Railroad Extension.</p> <p>Under the mechanic’s lien law of Oregon a subcontractor who performs work in building an extension of a railroad may claim and enforce a lien therefor upon such extension only, and the fact that he does not include in his claim the entire road of the company does not violate any public policy of the state, nor give the company any ground to object to his claim.</p>

The suit in the Circuit Court was by defendant in error, a citizen of the State of Indiana, incorporated under the laws of “that State, against the plaintiff in error, a citizen of the State of Illinois, to recover twenty-five thousand dollars upon plaintiff in error’s subscription to the capital stock of the defendant in error. The declaration, original and amended, set forth two papers as constituting the subscription upon which liability was based.

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

This writ of error was sued out to reverse a judgment for $4,722 against the city of Ft. Scott and in favor of the W. G. Eads Brokerage Company, a corporation, for a breach of a contract. The judgment rests on a peremptory instruction to the jury based upon these facts: The city of Ft. Scott had a bonded debt of $234,000 and a sinking fund of about $45,000. The bonded debt was drawing about 6 per cent, per annum, and tbe sinking fund only 1 % per cent, per annum.

<p>Petition for Writ of Mandamus.</p>

<p>1. Carriers—Steamship—Overcrowding Passengers.</p> <p>A steamship is liable in damages to passengers who, although they were sold second-class tickets, were given only the accommodations of steerage passengers, and who suffered great discomfort from lack of proper food and water and from being overcrowded in unclean and badly ventilated quarters. While the obtaining of an inspector’s certificate permitting the vessel to take more passengers than she actually carried may relieve her from prosecution for the statutory penalty for carrying an excessive number, it does not relieve her from liability to passengers for a violation of her implied agreement to furnish them with reasonable accommodations.</p> <p>2. Admiralty Practice—Taking Testimony on Appeal.</p> <p>The parties to a suit in admiralty should make reasonable effort to obtain all testimony material to the issues in the trial court, and the practice of taking further testimony after an adverse decision, to be used in the appellate court, is one not to be encouraged.</p> <p>8. Carriers—Steamship—Delay in Landing Passengers’ Effects.</p> <p>Libelants contracted for the carriage of themselves and their baggage, and effects, by a steamship from San Francisco to Nome in the spring of 1900. There was no landing place at Nome, and, all landing bad to be done by means of lighters. The tickets provided that the voyage should end at the place of anchorage, and that the landing was no part of the contract. After- they were put on shore libelante were compelled to wait in some cases 10 days, and until the sbi®; bad been to other .ports and returned, before receiving their baggage, effects, and freight,, by reason of which they suffered exposure, expense, and loss qji a.ccount of the delay, which was due, to soine extent at least, to, the fact that the ship was unnecessarily overloaded. Held, that the stipulation in the contracts did not exonerate the ship from liability in damages under the circumstances shown, even if enforceable within reasonable limits, owing to the condition of the port and the prevailing custom.</p>

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

On July 20, 1897, the ¿Etna Life Insurance Company, a corporation, brought this action upon coupons, some of which were cut from 20 bonds dated May 7, 1877, and others from 40 bonds dated May 16, 1888.

<p>1. Jurisdiction op Federal Courts—Amount in Controversy—How Determined.</p> <p>In a suit to enforce a lien claimed to have been given by a contract, to secure advances made thereunder, and also damages for its breach, the aggregate amount of such advances and damages claimed in good faith constitutes the amount in controversy for the purpose of the jurisdiction of a federal court, and it is immaterial to such question that the contract as construed by the court gave a lien only for the advances, which were less than the jurisdictional amount.</p> <p>2. Same—Diversity op Citizenship—Parties to Cross Bills.</p> <p>Where a federal court obtains jurisdiction in a suit to enforce a lien on property, by reason of the diversity of citizenship between the complainants and defendants, such jurisdiction extends to the determination of the rights of defendants or interveners, who also assert liens on the same property, by cross bills against other of the defendants, which give them the right to contest complainants’ claim, although there is no diversity of citizenship between the parties to such cross bills, and notwithstanding the fact that the cross bills make it necessary to bring in new parties.</p> <p>8. Tender—Sufficiency—Evidence to Support.</p> <p>To support a plea of tender, it must be clearly shown that the tender was fairly made, that it was absolute and unconditional, and that it covered the full amount then due.</p> <p>4. Appeal—Review—Findings of Fact.</p> <p>Findings of fact made on conflicting evidence will not be disturbed on appeal unless it clearly appears that they are opposed to the weight of the evidence, or some obvious error or mistake is clearly shown,</p> <p>5. Chattel Mortgage—Construction of Contract—Claims Secured.</p> <p>A contract for the sale of hops to be thereafter raised provided that the purchaser should advance a part of the price when the time for picking the crop arrived, and that, in case the hops should not be delivered in accordance with the contract, such advances should be repaid on demand, with interest. It further provided that it should stand as a chattel mortgage on the entire crop of the sellers, “to secure the payment of said sums advanced, and interest, and the performance of all the provisions hereof”; and that, in case the hops should be sold thereunder, the purchaser should retain, from the proceeds, “said sums and interest and all costs,” and account to the sellers for the remainder. Held, that such provisions could not be construed as giving the purchaser a lien for damages recoverable for the sellers’ breach of the contract.</p> <p>6. Equity Jurisdiction—Legal Demand—Right to Jury Trial.</p> <p>A cause of action for damages for breach of a contract cannot be tried, in a suit in equity in a federal court to foreclose the contract, as a chattel mortgage securing advances made thereunder; the claim for damages being separable from that for a lien, and a legal demand upon which defendants were entitled to a jury trial unless they waived the right.</p> <p>7. Attorneys’ fees—Enforcement of Stipulation in Contract—Discretion of ' Court.</p> <p>Where a chattel mortgage provided for attorneys’ fees in case of foreclosure, but before the commencement of a suit to foreclose the same defendants offered, and subsequently paid into court, a sum nearly equal to the amount recovered, and the subsequent litigation was principally with respect to a further claim of the mortgagee as to which he was ■ unsuccessful, the court properly refused to allow the complainants attorneys’ fees.</p>

<p>1. Admiralty—Review on Appeal—Finding oe Facts.</p> <p>A finding of fact made by the court in an admiralty case upon the conflicting testimony of witnesses examined in open court will not be disturbed on appeal.</p> <p>3. Contract—Consideration—Performance oe Legal Obligation.</p> <p>Libelants contracted with respondent, which owned a salmon canning plant in Alaska, to perform services as sailors in navigating a vessel from San Francisco to such plant and return, and in catching and canning salmon, while there, during the season, for which they were to receive a stipulated compensation. After reaching the plant they refused, without cause, to further perform the contract unless respondent’s superintendent signed an agreement to pay additional compensation. He stated that he had no authority to do so, but being unable to procure other men, owing to the remoteness of the place and the shortness of the season, he compiled with their demand, and a second contract was signed, identical with the first except as to the compensation to be paid. Held, that the agreement to pay additional compensation for services which libelants were legally bound to render under the old contract was void for want of consideration, conceding the superintendent’s authority to make it, there being no just ground to claim, under the circumstances shown, that respondent voluntarily waived the breach of the original contract by libelants.</p>

<p>1. Guardian’s Sale—Jurisdiction to Issue License.</p> <p>A guardian’s sale of real estate is void in a case In which the court which issued the license to the guardian to sell the property had no jurisdiction of the subject-matter.</p> <p>2. Same—Petition for Sale to Pay Debts Insufficient to Give Jurisdic-</p> <p>tion to Sell fob Maintenance or Investment.</p> <p>The statutes of Nebraska provide two different modes 'of procedure for the sale of the real estate of a ward by a guardian,—one to authorize its sale to pay debts, and the other to authorize its sale to support the ward, or to invest the proceeds in personal property. Upon a petition sufficient to warrant a guardian’s sale to pay debts, a sale was made pursuant to the course of procedure prescribed for that purpose, which was conceded to be invalid because the court failed to cause the issue and service of the statutory notice of the hearing upon the petition which was requisite to give it jurisdiction. In the procedure to sell for maintenance and investment no notice to the ward was essential, and an attempt was made to sustain the guardian’s sale on the ground that it was made for the maintenance of the ward and the investment of the proceeds. Held-, (a) A petition which contains only the essential allegations to warrant a guardian’s sale to pay the debts of the ward does not give the district court jurisdiction, under the statutes of Nebraska, to order a sale for the maintenance of the ward or for the investment of the proceeds of the sale, (b) The petition did not contain the requisite allegations to invoke the jurisdiction of the court to license a sale for maintenance or investment; the court did not attempt to license such a sale, did nbt follow the course of procedure prescribed by the statute to authorize such a sale; and the guardian’s sale in question was void, because the license to the guardian was not issued by a district court of competent jurisdiction, within the meaning of section 64, c. 23, Comp. St. Neb. 1901.</p> <p>(Syllabus by the Court.)</p>

In 1857 the Belleville & Southern Illinois Railroad Company was chartered by the legislature of. Illinois. It had an authorized capital stock of $2,000,000, the issuance of which was under the control of the directors. The charter authorized the company to receive stock subscriptions from counties, which should be binding on the counties if made conformably to the railroad aid act of 1849.

The plaintiff in error brought suit against the city of Superior upon two of its bonds, of $1,000 each, numbered 10 and 11, respectively, of installment E, and two coupons for interest thereon; the bonds being of like tenor and effect, and of the form following: “United States of America. "Number-. $l,000.oo/loo. “Installment E. “State of Wisconsin. “City of Superior. “Street Improvement Bond. “County of Douglas. “Know all men by these presents that the city of Superior, in…

The plaintiff in error (defendant below) is a corporation engaged in slaughtering cattle, sheep, and swine, and in curing, packing, and selling the products. The defendant in error (plaintiff below) was one of its employes, and on November 8, 1900, was engaged in removing hams from the fourth story to the pickling department in the third story of a packing house of defendant in Omaha.

The plaintiff in error was an experienced miner, engaged in the work of driving a tunnel in the mine of the defendant in error. The work was being continuously conducted by three shifts of men, working eight hours each. In each shift there were seven men, one of whom was the foreman or shift boss.

<p>L Municipal Corporations—Extent of Power and Liabilities Question of Local Law.</p> <p>The extent of the powers and liabilities of municipal corporations under the statutes of a state is generally a question of local law, upon which the decisions of the courts of the state are authoritative in the-national courts.</p> <p>2. Statute—Adoption—Prior Construction.</p> <p>The enactment or adoption of a statute, which has been elsewhere In force, is presumed to be the adoption of the construction which had been previously given to that statute by the judicial tribunals whose duty it was to interpret it.</p> <p>8. Municipalities in Indian Territory—Defects in Streets or Sidewalks-—Liability.</p> <p>On May 2, 1890, congress made chapter 29 of Mansfield’s Digest of the Laws of Arkansas, which governs municipal corporations, a part of the laws of the Indian Territory (chapter 15, Ind. T. Ann. St. 1899). Prior to that time the supreme court of Arkansas had twice held that municipalities subject to that chapter were exempt from liability to individuals for negligence in the construction, maintenance, or repair of their streets, ffeld, the legal presumption is that, when congress adopted the statute of Arkansas as the law of the Indian Territory, it also adopted the construction of this statute which the supreme court of that state had previously put upon it, and a municipality in the Indian Territory governed by this chapter 29 (chapter 15) is not liable to individuals for defects in its sidewalks or streets, notwithstanding the fact that the-more reasonable rule, which is sustained by the greater weight of authority, is otherwise.</p> <p>(Syllabus by the Court.)</p>

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

<p>Petition to Review an Order of the District Court of the United States for the District of New Jersey.</p> <p>In Bankruptcy. On petition for review.</p>

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

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

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

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

<p>1. Patents—Suit for Infringement—Severance for Purpose of Appeal.</p> <p>A licensee under a patent, having the right to join the patentee as a co-complainant in a suit for infringement with or without his consent is entitled to prosecute an appeal from an adverse decree in such a suit, although the patentee declines to join in such appeal, by having him summoned, and his refusal entered of record.</p> <p>3. Equity—Prater for Discovery—Sufficiency of Bill.</p> <p>A prayer for discovery in a bill may be disregarded where the bill propounds no interrogatories, and answer under oath is expressly waived.</p> <p>8. Patents—Licensee—Right to Sue for Infringement.</p> <p>A grant by a patentee of the exclusive right to manufacture and sell • the patented article within a specified territory is a mere license, which conveys no title to the patent within such territory, and no exclusive right of use therein which entitles the grantee to sue for infringement one who uses the article, manufactured by others outside of the territory.</p>

<p>In Equity. Suit for specific performance.</p>

In Equity. Suit for infringement of letters patent No. 397,280, issued February 5, 1889, to Thomas A. Edison, for a phonograph recorder and reproducer, No. 430,278, issued June 17, 1890, to the same inventor, for a phonograph, and No. 484,584, issued October 18, 1892, to the same inventor, for a phonograph reproducer. On final hearing.

In Equity. Suit for infringement of letters patent No. 377,706, issued to John Broderick February 7, 1888, for improvements in stencil sheets. On motion for preliminary injunction.

<p>1. Witnesses—Appearance before Grand Jury—Privilege.</p> <p>Code Cr. Proc. N. Y. § 393, declaring that the defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him, applies only to “defendants,” or persons against whom a charge has been brought, and is not the same as the constitutional provision declaring that no person shall be compelled to testify against himself, which provision includes, not only defendants, but all witnesses.</p> <p>Ü. Same—Indictment—Use of Evidence.</p> <p>Where an investigation before a grand jury is in progress for the purpose of ascertaining whether a crime has been committed, hot based on any complaint or formal accusation, evidence given in such investigation by persons subsequently indicted is not used elsewhere,, in violation of Rev. St. U. S. § 860, declaring that any evidence voluntarily given by a witness cannot be used against him in any criminal prosecution.</p> <p>8. Same.</p> <p>That a person subsequently indicted was subpoenaed before the grand jury and compelled to take the usual oath was not an infringement of his constitutional right not to testify against himself; he not being able to claim his constitutional privilege until he had been sworn as a witness.</p> <p>4 Same—Compulsion.</p> <p>Where defendants were subpoenaed to appear before a grand jury and testify in an investigation concerning matters in which they were the principal actors, and before any complaint or accusation had been brought against them, and before appearing had time to consult counsel, and on appearing stated that they were desirous of an opportunity to testify, and made no claim of their constitutional privilege to refrain from testifying, they were not “compelled” to testify, within the constitutional prohibition declaring that no person shall be compelled to testify against himself, so as to invalidate an indictment subsequently found on evidence disclosed.</p> <p>5. Same.</p> <p>Where a witness, on appearing before a federal grand jury in response to a subpoena, stated that he had been advised not to answer any questions in regard to the subject under investigation, on the ground that his answers might tend to incriminate him, and he was thereupon fully informed that he could not be so compelled to testify, and he continued to answer questions or not, according to his free will, he could not thereafter claim, on a motion to quash an indictment against him, that his constitutional privilege was violated.</p>

<p>1. Shipping—Injury Causing Death, on High Seas—Jurisdiction.</p> <p>A steamship company operating an American vessel registered In the port of New York is liable to the administrator of a passenger whom it negligently permits to be washed overboard and drowned in the high seas, under Code Civ. Proc. N. Y. § 1902, conferring on a personal representative the right to sue for the death of his decedent where it was caused by a default for which the latter might have recovered if only injured thereby; since the tortious act was committed on board the vessel, and hence within the territory of the state of New York, though the injury was consummated by the death of the decedent in the high seas.</p> <p>2. Death by Negligence—Damages.</p> <p>A verdict of $5,000 awarded to a father, 52 years old, and in poor health, for the negligent killing of his daughter, a domestic servant, 23-years old, who habitually remitted to him about $3 a month, is grossly excessive, $1,500 being ample.</p>

<p>1. Collision—Theory—Impossibility.</p> <p>A contention, in an action for collision, between a steamer and a scftooner, that the steamer crossed the schooner’s bow, and changed her course within the limits of a few hundred feet, so as to strike the starboard bow of the schooner at a right angle, should be rejected as unreasonable and impossible.</p> <p>2. Same—Evidence.</p> <p>Where, in an action for collision between a steamer and a schooner, the evidence of the officers of each as to the courses of the other and their courses could not be harmonized with the happening of the collision, and the wheel of the schooner was controlled by a young man, whose evidence showed that he had no knowledge of navigation, it will be held, that the collision resulted from the fault of the schooner’s helmsman.</p>

<p>In Equity. On petition against receivers.</p>

<p>1. Contempt of Court—Offense against United States.</p> <p>Contempt of a federal court is an offense, within Rev. St. U. S. § 1014, which, with Act May 28, 1898 (29 Stat. 184), authorizes a United States commissioner to arrest, imprison, or bail for an offense against the United States.</p> <p>2. Same—Affidavit for Warrant of Arrest.</p> <p>Affidavit for warrant of arrest for contempt of court In disobeying an injunctive order against interfering with work by lawless acts of intimidation need not be made by a party to the injunction suit, but by any one knowing the facts; the acts forbidden being themselves offenses.</p> <p>8. Habeas Corpus—Questions Considered.</p> <p>On petition for habeas corpus by one arrested and committed for disobeying an injunction, the question whether petitioner knew of the injunction cannot he inquired into; this being a matter of defense on the merits, and not material on the question whether the judgment of committal was void.</p>

<p>1. Unfair Competition—When Action Lies.</p> <p>Action for unfair competition, in that defendant sold whisky labeled “Kentucky Club Bourbon,” while complainant had previously used the label “Kentucky Club,” cannot be maintained; there being no intent by defendant to palm off his goods as manufactured by complainant, his label not being otherwise similar to complainant’s, and bearing his own name, and no damage to complainant being shown.</p>

<p>1. Shipping—Charter Party—Port op Discharge.</p> <p>Where a ship was chartered from Halifax to the port of New York, she cannot he compelled to discharge at New Rochelle, on Long Island Sound; that place being neither within the port of New York geographically, nor as defined by Greater New York Charter 1901, § 864, etc.</p> <p>2. Same—Waiver.</p> <p>Where consignees of a cargo illegally required the consignee of a vessel to unload at a certain point, which he refused to do, the fact that he also refused because his vessel would not lie afloat'at that place did not constitute a waiver of his claim that the cargo consignees had no right under the charter to compel a delivery there.</p>

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

<p>1. Federal Courts—Jurisdiction—Bemedies Given by State Statute.</p> <p>A state cannot by legislation confer a substantive right or remedy in the way of a suit inter partes upon its own citizens that will not be available to the citizens of the other states, nor can it by any device restrict such right or remedy thus made available to enforcement in its own courts, the conditions of citizenship being such that it would otherwise be enforceable in the federal courts.</p> <p>2. Same—Suit to Contest Will.</p> <p>Where the statutes of a state confer upon a state court of equity original jurisdiction of suits to contest the validity of a probated will a circuit court of the United States has concurrent jurisdiction of such a suit in which the amount in controversy is sufficient and the parties are citizens of different states.</p> <p>8. Equity—Joinder of Causes of Action—Multifariousness.</p> <p>Two causes of action, one for setting aside a will and the other for setting aside a deed, both made by the same person, and alleged to have been procured by the fraud and undue influence of one of the defendants, may be joined in the same bill, without rendering it multifarious, where the rights of the other defendants will not be prejudiced thereby, although they claim interests in different portions of the property in controversy through their codefendant; nor is it an objection to such joinder that the statutes of the state require the issue with respect to the will to be submitted to a jury, since a court of equity has power to conform to such requirement.</p> <p>4 Same—Parties—Practice of Federal Courts.</p> <p>To a suit in equity by one of the two heirs at law of a decedent to set aside a will and a deed executed by such decedent for fraud and undue influence, and to recover complainant’s share of the property, the other heir is not an indispensable party, and a federal court will not require his joinder where it would oust its jurisdiction.</p>

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

Action by Isaac P. Ryland against E. C. Hollinger and others. There was judgment for defendants, and plaintiff brings error. Affirmed.

This cause comes here upon writ of error to review a judgment of the circuit court, Northern district of New York, in favor of defendant in error, who was plaintiff below. 109 Fed. 273.

In his complaint the plaintiff (defendant in error) alleged that the defendant (plaintiff in error) on April 27, 1895, being indebted to him in the sum of $480, in satisfaction thereof transferred to him two promissory notes, the payment of which he “guarantied absolutely.” One of said notes was as follows: “$380.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>These causes come here upon appeal from decrees of the district court, Southern district of New York, holding the steamship* Comanche and the steam tug James A. Lawrence both responsible for a collision between Car Float No. I, in tow of the Lawrence, and the steamer. 97 Fed. 351.</p>

<p>1. New Trial—Discretion of Court—Review.</p> <p>An order granting or refusing a motion for a new trial is in the discretion of the trial court, and not reviewable.</p> <p>2. Judgment—Control by Court.</p> <p>The jurisdiction of the court over a cause and the parties continues after the term at which judgment is rendered, if during the term a motion respecting the judgment is entertained or allowed, and held open for further consideration.</p> <p>8. New Trial—Granting Motion—Subsequent Term.</p> <p>Where, at the term of court at which a judgment is rendered, an order granting leave to file a motion for a new trial is entered, and the matter is not disposed of at such term, the court has jurisdiction to decide the motion at a subsequent term.</p> <p>4. Same—Unfinished Business.</p> <p>When no judgment is entered on a verdict during the term at which the verdict is rendered, the cause passes over to the next term for entry of judgment, disposition of a motion for a new trial, and any other action that might be taken in the case.</p> <p>'5. Same—Records op Court—Presumption.</p> <p>An order granting a new, trial, as entered of record in the circuit court, showed that it was made “at the November, 1900, term, and on the 12th day of April, 1901.” It was contended that April 12, 1901, could not have been in the November term, because a term fixed by statute to be held at another place in the district on the third Monday in January would intervene. Held, that the contention was of no merit, since, if the business of the November term made such course desirable, it might have been continued to a date beyond the January term, and it would not be presumed that the court had committed unapparent error or falsified its records.</p>

In the month of July, 1900, the partnership firm of Orman & Crook, defendants below, were engaged in the construction of a railroad grade between Colorado Springs and Cripple Creek in Colorado, and employed In that work a large number of men, who, to keep the work in progress, were divided into day and night shifts; the night shifts working from 7 o’clock in the evening until 6 o’clock the next morning, and the day shifts the remainder of each day.

<p>1. Contracts for Boilers—Construction—“Nominal Horse Power.*</p> <p>In a contract for furnishing boilers for heating a building, it appearing that the words “nomin.al horse power” had no technical meaning in the trade, a requirement that each boiler should have a “capacity of 140 nominal horse power” must be construed as meaning its rated or professed horse power as distinguished from its capacity above or below its nominal horse power which it might actually develop when in use.</p> <p>8. Same—Breach.</p> <p>A contract for furnishing boilers for heating a building required that they should have a capacity of 140 nominal horse power, and that they should meet prescribed tests to determine their evaporating capacity under ordinary firing and their maximum capacity. Held, that each of such three requirements was an essential element of the contract, and that the boilers did not comply with the contract as to nominal horse power where the manufacturer admitted that they were rated at the shop, in accordance with its usual rules, as 130 horse power boilers.</p>

Bankruptcy proceedings against William T. Sinnard, a retail clothing merchant of Monroe, Jasper county, Iowa, were instituted by the filing of creditors’ petition June 4. 1900. On June 29, 1900, after adjudication, the matter was referred to S. S. Ethridge, referee in bankruptcy, at Des Moines.

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

This cause comes here upon an appeal of the complainant in the court below from a decree of the United States circuit court for the Southern district of New York, dismissing the hill alleging infringement of the first claim of patent No. 390,921, issued to Charles J. Van Depoele, October 9, 1888, for a carbon contact or commutator brush.

The circuit court in this case found the following findings of fact: “(1) That the plaintiff American Sales Book Company is a corporation duly organized, existing, and domiciled at Elmira, in the state of New York, and that Warren F. Beck is a citizen of the state of New York, also residing at Elmira, aforesaid, and that the defendant is a citizen of the state of Oregon. “(2) That on the 24th day of April, 1900, letters patent of the United States were, upon the application…

<p>In Admiralty. Petition for limitation of liability.</p>

<p>1. Contract for Railroad Constrcction—Delay in Completion of Wore— Liquidated Damages.</p> <p>Liquidated damages stipulated for in a contract for railroad construction for each day’s delay in the completion of the work after the time fixed cannot be deducted against the contractor where the delay was caused by the default of both parties, and it is impossible to apportion the damages between them.</p> <p>2. Same—Taking Possession of Plant of Contractors—Liability for Use.</p> <p>Where a railroad construction company took over the working plant of a firm of contractors under the protection of an injunction, claiming the right to do so and to use it in completing the work at the expense of the contractors under the terms of the contract, because of the contractors’ default, but it was afterward adjudged not to have such right, it is liable to the contractors for the reasonable value of the use of the plant which it employed in completing the work on its own account.</p> <p>8. Same—Statement of Account.</p> <p>Account stated between the parties to a contract for railroad construction.</p> <p>4. Contract—Validity—Consideration.</p> <p>The bid of a firm for the construction of a railroad was reduced by their agent without authority, and they refused to execute the contract at the reduced price. To induce them to do so, a third person orally agreed to pay a sum in addition to the contract price for a certain class of the work, in consideration of which they executed the contract and performed the work. Held, that such agreement was valid and binding on the promisor.</p>

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

<p>In Admiralty. Suit to enforce lien on cargo for freight.</p>

<p>1. Shipping—General Average—Losses Subjects op Compensation.</p> <p>Where the rudder of a ship was partly torn loose in a gale at sea, and it became necessary to cut it away to prevent its beating a hole in the ship during the storm, its value in its damaged condition before it was cut away is a proper subject for allowance in general average.</p> <p>2. Same—Wages and Provisions op Crew.</p> <p>The wages and provisions of a crew during the time they were engaged at sea in constructing a jury rudder after it became necessary to cut away the broken rudder to save the ship in a storm are proper items for allowance in general average.</p>

<p>1. Insurance—Construction of Conditions in Policy—Working of Mechanics.</p> <p>A clause of a fire insurance policy providing that it shall be void “if mechanics be employed in building, altering, or repairing the within described premises for more than 15 days at any one time,” unless otherwise provided by agreement, is reasonable and valid, and must be given effect as limiting by agreement the alterations or repairs which may be made without special agreement with the insurer, and without avoiding the policy, to such as can be completed within 15 days, even though the work done is reasonably necessary for the ordinary repair and preservation of the property.</p> <p>2. Same—Repairing—Avoidance of Policy,</p> <p>Under such a clause, work done on an insured building in rubbing and polishing the woodwork, regilding light fixtures, reburnishing, plumbing, and repairing defects in the plastering and spouting, is “repairing,” and its continuance for 24 days without notice to the insured, prior to the destruction of the building by fire, during which time 351 days work had been done, rendered the policy void.</p>

<p>Petition to Review an Order of the District Court of the United States for the Western District of New York.</p> <p>In bankruptcy. This is a petition to review an order of the United States district court for the Western district of New York in bankruptcy, granting the petitioning creditors leave to amend their petition for the adjudication of Sears, Humbert & Co., as bankrupts, by inserting an additional act of bankruptcy. The petition for adjudication was filed October 10, 1901, and October 23, 1901, another petition for adjudication was filed by other creditors in the district court for the Southern district of New York." Subsequently the creditors in the first petition moved for leave to set up in their petition the act of bankruptcy alleged by the creditors in the second petition. See 112 Fed. 58.</p>

This is a suit in equity for the infringement of° claim 4 of letters patent of the United States No. 468,144, granted to Mark Anthony and William C. Savage on February 2, 1892, for an improvement in thimbles and bushing for barrels.

<p>In Equity. Suit for infringement of letters patent Nos. 556,280, 556.282, 556,283, and 556,285, all relating to a method of producing combustion, and apparatus therefor, granted to Paul J. Schlicht. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 342,268, issued May 18, 1886, to Thomas L. Smith and William S. Doig, for a box-nailing machine. On final hearing.

<p>1. Patents—Construction of Claims—Electrical Distribution.</p> <p>The Stanley patent, No. 469,809, for a system of electrical distribution, as construed in Westinghouse Electric & Mfg. Co. v. Saranac Lake Electric Light Co. (C. C. A.) 113 Fed. 884, is for a transformer in which the so-called Stanley rule for ascertaining the proper length of primary coil inheres as an essential feature of the invention, and must be read into the claims, and such construction is conclusive upon the parties to such suit and their privies.</p> <p>2. Same—Suit for Infringement—Preliminary Injunction.</p> <p>In a suit for infringement of a patent, the first thing to determine is the scope of the invention; and the second, whether the alleged infringing device comes within the invention as thus defined; and this rule applies on the hearing of a motion for a preliminary injunction, although the patent had been construed and its validity sustained in a prior suit between the same parties, where there is a dispute as to such construction.</p> <p>8. Same—Infringement—Electrical Distribution.</p> <p>The Stanley patent, No. 469,809, for a system of electrical distribution, claims 1 and 3, as previously construed and limited in a suit between the same parties, held not infringed, on a motion for a preliminary injunction.</p>

<p>1, Patents—Construction—Secondary Batteries.</p> <p>The Brush patent, No. 337,299, is the generic patent covering the Brush invention of secondary or storage batteries, and has uniformly been sustained by the courts, and given a broad construction. The patents previously issued to the 'patentee, but subsequent to the date of the original invention, were for improvements merely, and their expiration did not affect the validity of the basic patent.</p> <p>2. Same—Delay in .Issuance—Interference Proceedings.</p> <p>The fact that delay in the issuance of a patent after the filing of the application will result in giving the patentee a monopoly "for a longer period of time than 17 years, cannot shorten the term of the patent, where such delay resulted from interference proceedings, and was not attributable to the patentee.</p> <p>8. Same—Suit for Infringement—Preliminary Injunction.</p> <p>Where the validity of a patent has been frequently sustained by undoubted authority, and infringement is clear, a court should not exercise its discretion to deprive the patentee of the monopoly the "law gives him for the full term of his patent by refusing him a preliminary injunction either because the patent will soon expire, or because the defendant offers to give a bond for the payment of all damages recovered.</p>

<p>1. Equity—Commencement of Suit.</p> <p>A suit in equity in a court of the United States Is commenced by the filing of the bill.</p> <p>2. Patents—Suit for Infringement—Evidence.</p> <p>A suit for infringement of a patent cannot be sustained by proof of acts of infringement committed after the bill was filed.</p>

<p>1. Patents—Validity—Riveting Machine.</p> <p>The Frisbie patent, No. 501,681, for a riveting machine, Is void because the patentee was not the inventor of the machine therein shown.</p>

<p>1. Patents—Invention—Means for Preventing Loss of Freight in Shipment.</p> <p>Tke Mockridge patent, No. 493,595, for means for securing railroads and skippers against loss of freight by means of a system of numbering applied to the ears and packages, the duplicating of the numbers on checks and the shipping receipts, and a temporary receptacle on the car for holding the checks in loading, is void on its face for lack of patentable invention.</p>

In Equity. Suit for infringement of letters patent No. 608,720, granted to W. C. Shaw, August 9, 1898, for a collar turning and iron-, ing machine. On final hearing.

In Equity. Suit for infringement of letters patent No. 31,745, granted October 31, 1899, to Arthur E. Shaw and Edward S. Sanderson for a design for a street lamp. On motion for a preliminary injunction.

<p>1. Patents—Infringement by Corporation—Liability of Officers.</p> <p>A suit for infringement cannot be maintained against an individual who is not alleged to have infringed, except in his official capacity as an officer of a corporation charged to have committed the infringement, and not shown to be insolvent, unless some other special reason appears.</p>

<p>In Equity. On motion for allowance of appeal,</p>

<p>In Admiralty. Action by insurer to recover possession of a ship sold by the master while lying stranded.</p>

<p>1. Bankruptcy—Trust Funds—Recovery by Owner.</p> <p>Bankrupts, who were brokers, a short time before their bankruptcy purchased certain stocks for a customer, through another firm, which were fully paid for by the customer by money to his credit with bankrupts. The firm through which the purchase was made retained the stocks, and subsequently sold the same, with other stocks purchased for the bankrupts, and from the proceeds paid an indebtedness from the bankrupts to them, leaving a balance in their hands. Eeld that, as against the bankrupts and their general creditors, whose rights were no greater, the presumption was that the proceeds of the customer’s stocks • were in such balance, and that he was entitled to recover the same.</p> <p>2. Same—Brokers—Stocks Purchased for Customer.</p> <p>The bankrupts purchased other stock for the same customer, which had been paid for, but not delivered. At the time of the bankruptcy the bankrupts held a larger quantity of such stock, some of which had been pledged, and some of which came into the hands of the trustee, who sold the same. Eeld, that the presumption- was that a part of the stock on hand was held for the customer, and that he was entitled to the proceeds received therefor by the trustee.</p> <p>8. Same—Conversion of Stocks by Broker—Adjustment of Claim.</p> <p>A broker purchased stock for a customer, and charged the same to his account. On the same day the customer drew out a sum from his account, which left a balance to his credit less than the cost of the stock. Between that time and the broker’s bankruptcy the customer had increased his credit, and also some time between the two dates the broker converted the stock, and the customer filed a claim for its value. Eeld, that he was entitled to credit as a payment on the stock for his credit balance at the close of the day on which the purchase was made, together with the subsequent increase in such credit; also that the sum withdrawn on that day was not chargeable to him as a preference, it not appearing whether it was withdrawn before or after the stock was purchased, and the presumption being that it was in either case prior to the accrual of his claim for conversion.</p> <p>4. Same.</p> <p>Where a bankrupt converted certain stock purchased by him as a broker some time between the time of its purchase and his bankruptcy, the exact time not appearing, the value of the stock, for the purpose of measuring the owner’s damages, may properly be taken as of the date when the petition in bankruptcy was filed.</p> <p>5. Same—Preferences.</p> <p>At the. time of the making of a general assignment by a firm of brokers, and shortly prior to their bankruptcy, their bookkeeper had a credit upon their books, and also a claim against them for certain stock owned by him, which it appeared they had previously converted. On that date he received payment of the balance due him on the book account. Eeld that, as his claim growing out of the stock transaction was at that time one for damages only, the payment received was a preference, which he must surrender before proving such claim.</p>

On Motion to Remand. This suit was commenced in the circuit court of Colbert county, Ala., by E. L. Goodloe against the Tennessee Coal, Iron & Railroad Company to recover $50,000 damages for personal injuries, and was removed on the petition of the defendant, which states that it is a citizen of the state of Tennessee, “a corporation organized and existing under the laws of the state of Tennessee,” and that plaintiff is a citizen of Alabama.

<p>1. Customs Duties—Classification—Scrap Steel.</p> <p>Strips of steel cut from the sides of boiler plates after their first trimming, to remove holes or other defects, or to obtain the exact size of plate desired, having two cut edges, but generally untrue, and of varying length, breadth, and thickness, and which after importation are separately rolled into long thin plates, and used for the manufacture of tacks, trunk irons, and other small articles, are “waste or refuse steel fit only to be remanufaetured,” and dutiable as “scrap steel,” under paragraph 122 of the tariff act of 1897, and not under paragraph 135, covering steel in all forms or shapes not specially provided for.</p>

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

<p>1. Bankruptcy—Production of Books—Indictment—Evidence against Oneself—Constitutional Law.</p> <p>Where a bankrupt is charged, in a state court with the crime of having fraudulently removed and disposed of property and with grand larceny in obtaining goods on false pretenses, it being charged that the crimes relate to matters involved in the bankruptcy proceedings, and the bankrupt deposes that a furnishing of books of account and filing of schedules pursuant to the usual order would tend to incriminate him and compel him to be a witness against himself, within Const. U. S., art. 5, and the New York constitution, he will not be required to produce the books, etc.</p>

<p>1. Bankruptcy — Mortgage — Validity—Stipulation—Sale of Property-Proceeds— Contest in State Court — Setting Aside Stipulation— Authority of Attorney—Good Faith—Laches.</p> <p>According to a stipulation between a trustee in bankruptcy and the attorney for a mortgagee of the bankrupt’s property it was ordered in the federal court that the property be sold, the proceeds deposited in a bank, and that the trustee should sue in a state court to determine as to the validity of the mortgage, and that such determination should be final. After the rendition of a decree for the trustee in the state court the mortgagee moved by a substituted attorney that it be relieved of the stipulation with reference to the finality of the judgment, the mortgagee contending that the previous attorney had had no authority to make it, and that the mortgagee was ignorant thereof. It appeared that the whole matter had been left to the former attorney, and that the mortgagee knew the money when in the bank was there by some arrangement by which it was to be a subject of contest. Held, that the application was of no merit and too late.</p>

<p>1. Copyright—Picture—Exhibition Without Notice of Copyright—Publication—Injunction.</p> <p>An artist transferred to complainant the copyright in his picture, and complainant caused it to be copyrighted in this country, and published copies, all of which carried the notice of copyright required by Rev. St. § 4962, as amended by the act of June 18, 1874. After such transfer the picture was publicly displayed at the exhibition of the Royal Academy of Arts at London for several months, without a notice of the copyright Thereafter defendants published copies of the picture, and complainant sought to restrain their further publication. Held, that such exhibition of the picture was a publication thereof within the meaning of such section; hence the injunction should be denied.</p>

<p>Í. Removal of Causes—Local Prejudice.</p> <p>25 Stat. 434, provides that, when it shall be made to appear that from prejudice or local influence a nonresident defendant in a suit will not be able to obtain justice in the state courts, he may remove such suit into the circuit court' of the United States. Held that, irrespective of any moral justification for a widespread or practically unanimous public sentiment in favor of or against a litigant, such a sentiment is, under the statute, ground for removal.</p> <p>2. Same.</p> <p>Where the suit is against several defendants, some of whom are nonresidents, it is settled by the letter of the statute, as well as by the great weight of adjudicated cases, that the nonresident defendants may remove the suit.</p> <p>S. Same—Order for Removal—Certified Copt—Filing in State Court.</p> <p>While the law does not require it, proper respect for state courts demands that a certified copy of an order of removal be filed in the state court from which the cause is removed.</p>

On Exceptions to Report of a Master Appointed under an Interlocutory Decree. The complainant was the beneficiary of a testamentary trust of $10,000, ■of which the defendant Oakes was trustee. On an accounting in the surrogate court it developed that the amount of the trust had been reduced, by payment of debts, etc., to $8,786.

<p>Submitted on Review of Action of Referee with Respect to Sale of Realty. See (D. C.) 116 Fed. 429.</p>

<p>Appeal by D. A. Shaw & 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 decision of the board, which was under review in this case, was on the question of the sufficiency of a protest filed by the importers. The merchandise in question consisted of tapioca flour, which was properly free of duty under paragraph 677 of the tariff act of 1897, which provides for the free entry of tapioca. The claim of the importers was that the merchandise was free of duty under paragraph 646 of the tariff act of 1894, which is identical in language with the said paragraph 677. The board held that the protest did not satisfy the terms of section 14 of the customs administrative act of 1890, which requires that protests shall set forth “distinctly and specifically” the reasons of the importer’s objections to the classification of the collector.</p>

<p>1. Customs Duties—Classification—Whiting.</p> <p>A powder put up in small packages for use by Jewelers In polishing metals, and composed of over 93 per cent, carbonate of lime, is whiting, and dutiable as such, under paragraph 46 of the tariff act of 1894, and not under paragraph 86, as an article composed, of earthen or mineral substances not specially provided for.</p>

<p>Conclusion of Court on Motion to Remand.</p>

<p>1. Principal and Agent—Limitation of Authority.</p> <p>A principal may limit the authority of his agent, and when he does so the latter cannot bind his principal beyond the limits of his authority by contract, estoppel, or waiver, to those who know the limitations upon his power.</p> <p>2. Insurance—Principal and Agent—Limitations of Agent’s Authority by Policy or Benefit Certificate.</p> <p>Insurance companies and beneficial associations may limit the authority of their agents by provisions in their policies, or by by-laws which are a part of their contracts; and an agent whose powers are thus limited cannot bind his company beyond the limits of his authority by contract, estoppel, or waiver, to those-who know the limitations upon his powers.</p> <p>3 Insurance—Principal and Agent—Beneficiary’s Knowledge of Limita tions of Agent’s Authority.</p> <p>The insured and the beneficiaries under contracts with insurance companies and beneficial associations are charged with knowledge of the limitations upon the powers of the agents of the companies which are found in the policies or certificates or in the by-laws or applications which are a part of their contracts, and they are bound by these limitations.</p> <p>4. Beneficial Associations—Limitation of Authority of Agent—Local Clerk of Modern Woodmen of America.</p> <p>The by-laws of the Modern Woodmen of America, which constitute a part of the contracts with its members and beneficiaries, provide that a member who fails to pay a benefit assessment at the time specified for its payment is ipso facto suspended, and his benefit certificate is thenceforth void; that he may be reinstated within a certain time, if in good health, by furnishing a warranty of that fact, and paying his arrearages; that the clerk of the local camp shall collect and remit to the head camp the assessments paid in accordance with the bylaws; that he shall report to the head camp suspended members; that he is the agent of the local camp, and not of the head camp; and that no act or omission by him shall create any liability or waive any immunity or right of the society. Reto: (1) The clerk of the local camp is the agent of the head camp to collect and remit the benefit assessments in accordance with the terms of the by-laws. (2) His authority is limited by the by-laws, and the members and beneficiaries are charged with knowledge of these limitations, because they are a part of their contracts. (3) The clerk of the local camp has no authority by contract, estoppel, or waiver to bind the society to its members or beneficiaries either by extending the time of payment of a benefit assessment, or by waiving default in its payment, or by reinstating a suspended member without a warranty of good health, in the absence of notice or knowledge of such acts and «acquiescence therein by some of the principal officers of the head camp.</p> <p>6. Beneficial Associations—Stipulations for Prompt Payment Substance of Their Contracts.-</p> <p>Stipulations to insure the prompt payment of benefit assessments constitute the substance and the essence of insurance contracts of beneficial associations.</p> <p>6. Beneficial Associations—Notice of Assessment.</p> <p>The by-laws of the Modern Woodmen of America constitute a part of its contracts with its members and beneficiaries, and a service of a notice of assessment by mail in accordance with the terms of the bylaws is sufficient and effective.</p> <p>(Syllabus by the Court.)</p> <p>f 6. See Insurance, vol. 28, Cent. Dig. § 1854.</p>

<p>1. Building and Loan Associations—Rights op Shareholders— Change in Character op Stock.</p> <p>Complainants were holders of full-paid, or so-called “common,” stock of a building and loan association. By the by-laws the holders of full-paid stock were given the sole right to vote and to control the business of the association, but their capital was made subject to reduction to make good any losses sustained by the association in favor of installment stockholders. At a meeting called for the purpose in which both classes of stockholders participated, the laws of the association were amended so as to place both classes of stock on an equality in the respects stated; nearly all of the common stock, including that owned by complainants, who were represented by proxy, being voted in favor of the proposition. Held that, in the absence of any evidence of fraud or claim that the meeting was irregular or the proxy exceeded his authority, such action was valid and binding on complainants, and that they could not recover of the association as creditors the price paid for their stock either on the ground that its issuance with the privileges originally accorded to it over installment stock was ultra vires, or that the action taken was a repudiation by the corporation of the contract by which they became stockholders.</p> <p>2. Corporations—Special Stockholders’ Meetings—Transaction op Busi-</p> <p>ness not Stated in Notice.</p> <p>The requirement that the business transacted at a special meeting of stockholders shall be limited to that stated in the notice of such meeting is one for the benefit of the stockholders, which they may waive, and which is waived by their attendance and participation in the business done without objection.</p> <p>3. Same—Right to Repudiate Action op Proxy—Laches.</p> <p>A stockholder is bound by the action of his proxy at a stockholders’ meeting, unless he exerciser the inost active diligence in repudiating the same, and is chargeable with such knowledge of what was done at the meeting as he ought to have obtained and would have obtained in the exercise of reasonable diligence and care with respect to his business and property rights; a delay of more than a year before taking any steps to repudiate the action of his proxy, if unexcused, is such laches as will debar a stockholder from the right to relief.</p> <p>4. 'Building and Loan Associations—Rights op Shareholders—Change in Character op Stock.</p> <p>The holders of full-paid stock in a building and loan association, who were given full control of its business by the by-laws, but were required to make good any impairment of capital in favor of installment stockholders, at a stockholders’ meeting charged up against their stock the amount of losses which had been sustained by the association. Subsequently they consented to, and were instrumental in bringing about, a change in the by-laws by which full-paid and installment stock were placed on an equality. Held that, in the absence of misrepresentation or deceit inducing their action, they were not entitled to have the losses previously charged to them repaid.</p>

This is a bill by some of the heirs at law and creditors of the estate of Lovett Eames to set aside sales of property belonging to the estate for the satisfaction of certain alleged fraudulent claims against the deceased. The bill is 'one of prodigious length, covering 62 pages of the printed record. Lovett Eames died intestate, in Kalamazoo, Mich., in September, 1863, leaving an estate, real and personal, which the bill avers was of the value of about $50,000.

<p>1« Equity_Laches.</p> <p>By Act June 2, 1858, congress authorized the issuance of certificates to holders of deferred land claims confirmed under the treaty of cession of Louisiana, which should be receivable at any land office of the United States in payment for lands. A holder of such a claim, who had never applied for or obtained a certificate thereon, died in 1862, domiciled in Mississippi, and his will was there probated, by which he devised all his property to his children, one of the complainants and the father of the other complainants. Subsequently, without the knowledge of the devisees, proceedings were instituted in Louisiana for the settlement of decedent’s succession, in which his land claim was sold, and the purchaser, through whom defendants claim, obtained a certificate thereon, which was located on the lands in controversy. Held, that complainants were not chargeable with notice of the proceedings in Louisiana, nor barred by laches from asserting their rights against defendants, where suit for that purpose was instituted within two years after they first learned of the existence of any adverse claim.</p> <p>2. Same—Implied Trust—Measure of Trustee’s Liability.</p> <p>In such case, however, defendants were not chargeable with an express trust in favor of complainants, but with a trust implied by equity, and complainants were entitled to recover only the value of the scrip, with interest from the time of its location, and not the land into which the same had been converted.</p> <p>'8. Attorney and Client—Contracts for Compensation—Validity. -</p> <p>Under the law of Michigan, an agreement that attorneys shall receive a share of the recovery in payment for their services is lawful.</p> <p>4. Trusts—Suit to Enforce—Defenses.</p> <p>In a suit to recover lands alleged to be held in trust for complainants, defendants cannot plead as a defense a deed executed by complainants to a third person, describing other lands, upon an allegation that it was intended to convey the lands in suit.</p>

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

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>This writ of error was sued out to reverse a judgment in favor of the defendant upon a directed verdict founded upon the following undisputed facts: On February 5, 1885, the plaintiff, Aaron Keyser, recovered a judgment against the defendant, John W. Lowell, in a court of general jurisdiction of the territory of Utah. In the year 1884 or the year 1885 the defendant, John W. Lowell, who had theretofore been a resident of Utah, removed to, and became and has ever since been a citizen and resident of, the state of Colorado. On January 18, 1901, the plaintiff commenced an action in a court of general jurisdiction of the state of Utah against the defendant upon the judgment of February 5, 1S85. The summons was personally served on the defendant, and he appeared generally in that action. Thereupon, and on March 2, 1901, a judgment was rendered by the court of the state of Utah in favor of the plaintiff and against the defendant for the sum of $9,052.61 and costs. On January 18, 1901, when the action was commenced which resulted in this judgment, the cause of action upon the judgment of February 5, 1885, was barred in the state of Colorado by its general statute of limitations, which limits the time within which such an action may be brought to six years from the accrual of the cause of actlon. On May 31, 1901, the plaintiff commenced this action in the circuit court of the United States for the district of Colorado upon the judgment of the district court of the state of Utah rendered on March 2, 1901. The defendant pleaded that this cause of action was barred by the statutes of the state of Colorado, and the court below instructed the jury to return a verdict for the defendant, on the ground that the third proviso of the act of the legislature of the state of Colorado of April 6, 1899, entitled “An act to amend an act approved on the 29th of April, 1895, entitled ‘An act to limit the time in which suits may be brought upon causes of action accrued or judgments or decrees rendered without this state and to repeal various acts in conflict or inconsistent therewith,’ ” barred the maintenance of the action. That proviso reads in this way: “Provided, further, that if at any time after a period of six (6) months from and after the passage of this act any action, suit or proceeding be brought against any bona fide resident of this state in the courts of any other state, territory or jurisdiction beyond the limits of this state upon any debt, contract, demand or liability that at the time of the commencement of such action, suit or proceeding was wholly barred by the statute of limitations of this state so that no action, suit or proceeding could be commenced upon the same in any of the courts of this state, and a judgment or decree should be rendered upon any such debt,' contract, demand or liability in such other state, territory or jurisdiction, and any action, suit or proceeding should afterwards be commenced in this state upon such a judgment or decree so rendered against said defendant and said defendant should still be a bona fide resident of this state, it shall be lawful for such defendant to plead in bar to any such action that said judgment or decree had been so recovered upon a debt, contract, demand or liability, that was wholly barred by the statute of limitations in this state at the time the action, suit or proceeding was commenced upon the same in such other state, territory or jurisdiction.” Sess. Laws Colo. 1899, c. 113.</p>

Petition to Review an Order of the District Court of the United States for the Southern Division of the Eastern District of Tennessee. The case was submitted on the following facts: On October 24, 1893, Carney Bros, recovered judgment against John Gollahon, the bankrupt, in the supreme court at Knoxville, Tenn., for the sum of $261.S5 and costs, amounting to $33.66.

<p>1. Patents—Construction of Claims—Reference to Specification.</p> <p>When the language of a claim for a combination includes an element only described in general terms, the court may look to the specification to ascertain its meaning, and the claim may be limited by the specification, especially where it contains the expression “substantially as described,” and the element in the particular form described in the specification is essential to the production of the result which is its most important function.</p> <p>2. Same—Invention—New Combination of Old Elements.</p> <p>A combination of old elements, if it is novel and produces a new and useful result, may be patentable.</p> <p>8. Same—Scope—Incidental Advantages of Invention.</p> <p>A patentee is not required to describe in full all the beneficial functions of his invention; but if a thing accomplished is a necessary consequence of the improvement made and described, making it obvious that the inventor intended it, though not specifically pointed out, he is entitled, to the benefit thereof in construing his patent.</p> <p>4. Same—Anticipation—Use of Old Element to Perform New Function.</p> <p>A patent for a combination in which one of the parts performs a new and important function in the operation of the machine is not anticipated as to such feature by a prior patent for a combination in which a similar part was used in a different place, where it did not perform such function.</p> <p>6. Same—Invention.</p> <p>Simply to do by a steam attachment, without novelty of application or operation, what in the operation of prior machines had been done by hand, does not constitute invention.</p> <p>6. Same—Infringement—Oil Meal Cooker and Cake-Former.</p> <p>The Yaile and Tompkins patent, No. 421,454, for a combined cooker and cake former for oil meal, was not anticipated, discloses patentable invention, and is valid as to claims 1, 2, 4, and 9. Claim 3 is invalid as too broad. Said valid claims also held infringed.</p>

This case comes up on appeal from the circuit court of the United States for the Eastern district of Virginia. The questions in the case arise in thb administration of the affairs of the Richmond & Danville Railroad Company, in the consolidated cause of Central Trust Company of New York v. Richmond & Danville Railroad Company.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p> <p>This case comes up on appeal from the decree of the circuit court of the United States for the Eastern district of Virginia. It is one of the cases arising in the administration of the affairs of the Richmond & Danville Railroad Company. The claim is made by the Chapman Jack Company against the Southern Railway Company, purchasers of the property of the Richmond & Danville Railroad Company at the sale made under a decree of foreclosure of the mortgages upon this property. The decree on this point is in these words: “The purchaser or purchasers at said sale shall as part of the consideration .of such sale, and in addition to the payment of the sum or sums bid, take the property purchased upon the express condition that he or they would ‘protect the security given for the lien of the North Carolina Railroad Company,’ and will also pay off and satisfy any and all outstanding and unpaid receivers’ certificates or receivers’ notes and obligations issued under the order of June 28, 1892, and having priority over the lien of said mortgage of October 22, 1886, and all other claims heretofore filed in this case, or in either of the causes consolidated herein, but only when said court shall allow such claims and adjudge the same to be prior in lien or superior in equity to the mortgage foreclosed in this suit, and in accordance with the order or orders of the court allowing such claims and adjudging with respect thereto.” In this connection is inserted a clause from the decree of June 15, 1892, appointing the receivers: “The said receivers shall, from time to time, out of the funds coming into their hands from the operation of the property, pay the expense of operating the same and executing their trusts, and all taxes and assessments upon the said property or ‘ any part thereof, and also pay and discharge all such trafile and car mileage balances as may be due to connecting and other railways, and all such loss and damage claims arising from the previous operation of said property as, in their judgment, on examination, are proper to be paid as expenses of operation, and shall also, out of the moneys coming into their hands, pay and discharge all the current and unpaid pay rolls and vouchers, and supply accounts incurred in the operations of said railroad system, at any time within six months prior hereto.” When the receivers were appointed, the court also appointed special masters, who were directed to call in creditors of the Richmond & Danville Railroad Company. This they did, and among others the Chapman Jack Company filed the present claim. There was much delay in examining and passing upon the various claims. Among those so delayed was this of the Chapman Jack Company. It was not finally passed upon until 1901. This delay has been charged as laches upon the part of the claimant; but we concur with the special master and the court below that this charge will not lie. The claim of the Chapman Jack Company is on the following accounts:</p> <p>Central R. R. & Bkg. Co., to the Chapman Jack Company.</p> <p>July 13,1891. 20 Chapman jackscrews, $126, less 33% per cent.. $ 84 00 The Same to the Same.</p> <p>Aug. 20,1891. 12 Chapman jackscrews at $3, $36, less 33% per</p> <p>cent ........................................ $ 24 00</p> <p>Richmond & Danville R. R. Co., to the Chapman Jack Co.</p> <p>Jan. 28,1892. 24 Chapman jackscrews, $324, less 33% per cent.. $216 00</p> <p>The Same to the Same.</p> <p>April 6,1892. 12 Chapman jackscrews, $162, less 33% per cent... $108 00</p> <p>The Chapman jackscrews for the Central Railroad & Banking Company were ordered by the purchasing agent of the Richmond & Danville Railroad Company, and were sold, shipped, and delivered under and because of that order. The Central Railroad & Banking Company was at that time operated by the Richmond & Danville Railroad Company, which had assumed the obligations of the Georgia Pacific Company, which latter company had secured a lease of the property of the Central Railroad & Banking Company. The articles purchased and charged to this last-named company were for use on its road. From all that appears in the record, the articles purchased and charged to the Richmond & Danville Railroad Company were for the use on the property of that company covered by the mortgage foreclosed and purchased by the Southern Railway Company. Special Master Dickinson, who heard the case, reported in favor of the entire claim of the Chapman Jack Company and recommended its payment. The court, hearing his report and the exceptions thereto, concurred with the master and confirmed the report on the whole. The matter comes here on assignments of error.</p>

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

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Plaintiff in error brought an action in the court below against defendant in error, for the purpose of recovering $3,000 and interest, by reason of the facts' alleged in its complaint. The complaint alleged the following facts:</p> <p>“That the Bankers’ Mutual Casualty Company, during all of the year A. D. 1900, and up to the present time, is and was a corporation duly organized under the laws of the state of Iowa, and a citizen of said state, with its principal place of business at Des Moines in said state, engaged in the business of insuring banks against loss from robbery and burglary, including the insurance against loss of packages of money, while in the course of transmission from place to place, while regularly carried in the United States registered mails.</p> <p>“That defendant, during all of the year A. D. 1900, and up to the present time, is and was a corporation duly organized under the laws of the state of Minnesota, and a citizen of said state, with its principal place of business at Minneapolis in said state, engaged in operating a line of railroad situated in the states of Minnesota and North Dakota.</p> <p>“That the German State Bank, during all of the year A. D. 1900, and up to the present time, is and was a corporation duly organized tinder the laws of the state of North Dakota, and a citizen of said state, with its principal place of business at the town of Harvey in said state, engaged in a general banking business at said town.</p> <p>“That during the whole year A. D. 1900, and up to the present time, defendant is and was engaged in carrying the United States mails between the terminal and intermediate stations located upon and along its said line of railroad, under and by virtue of the statutes and laws of the United States, and the regulations established by the post-office department of the United States government, and in pursuance of a fixing of the compensation to be paid to defendant by the United States government for carrying said mails and the person in charge thereof, based upon the last preceding reweighing of said mails, and upon notice in writing, in the usual form, from the second assistant postmaster general of the United States, requiring defendant to carry said mails and the person in charge thereof.</p> <p>“That said depot at or near the town of Harvey was an intermediate station on that part of defendant’s said line of railroad within the state of North Dakota which extends from the station at Hankinson to the station at Portal, and the railroad line between said stations at Hankinson and Portal is designated by, and known to the post-office department of the United States as, ‘Railroad Route No. 161,018,’ being a distance of 344.58 miles, and the compensation fixed by the United States post-office department to be paid annually by the United States to defendant, during all the period herein referred to, for. the carriage of said mails and the person in charge thereof, is and was the sum of sixty-four thousand eight hundred and fifteen and 49/100 dollars (864,815.49) at the rate of 8188.10 per mile.</p> <p>“That this substituted plaintiff is not in possession of the aforesaid notice to defendant, and is unable to attach to this petition said notice or a true copy thereof.</p> <p>“That, during all of the period hereinbefore referred to, there was no contract of any kind between defendant and the United States government concerning or providing for the carriage by defendant of said mails, or any part thereof, or of the person in charge of said mails, upon or along defendant’s said line of railway or any part thereof.</p> <p>“That on or about the 10th day of November, A. D. 1900. the Me+ronolitan Bank, a corporation organized under the laws of the state of Minnesota, was engaged in transacting a general banking business in the city of Minneapolis in said state, and on or about said date said bank deposited, in the United States mails at Minneapolis in said state, a package containing lawful money of the United States, commonly known and called ‘currency,’ of the actual cash value of three thousand dollars (83,000.00), in an envelope properly addressed to the German State Bank at Harvey, North Dakota, and prepaid thereon the postage and registration fee, and said package was thereupon duly registered by the postmaster at said post office; that from and after the time of depositing said package in said post office at Minneapolis, said package and its contents was the property of said German State Bank.</p> <p>“That said registered package was covered by insurance and indemnity against loss, while in transit through the United States mails from Minneapolis to said Harvey, under a policy of insurance issued by said Bankers’ Mutual Casualty Company, the substituted plaintiff; said insurance being for the use and benefit of said German State Bank; that a true copy of said policy is hereto attached as part hereof, and marked Exhibit A.</p> <p>“That on or about November 10th, A. D. 1900, and •while said package was in good safety, and prior to the departure of the train carrying said registered package, said Metropolitan Bank deposited in the United States mails, at the post office in said city of Minneapolis, a letter of advice properly addressed to said Bankers’ Mutual Casualty Company at Des Moines, Iowa, with postage thereon prepaid; that said letter of advice notified said Bankers’ Mutual Casualty Company of the shipment by said Metropolitan Bank of said sum of three thousand dollars to said German State Bank of Harvey, and upon said mailing of said letter of advice the contract of insurance and indemnity of said registered package of currency immediately attached thereto, and became a valid and complete contract of insurance and indemnity, by the said Bankers’ Mutual Casualty Company, in favor of said German State Bank.</p> <p>“That, in the regular course of transmission of the United States mails between the said city of Minneapolis and the said town of Harvey, said registered package was duly delivered by the post-office officials of said city of Minneapolis to the railway mail clerk or other proper postal official, and placed in a railway mail car or other proper car, the property of defendant, then standing upon defendant’s said line of railway, and was transported by defendant railway company to defendant’s railway depot or station situated in or near said town of Harvey, North Dakota.</p> <p>“That, prior to the arrival of said registered package at said town of Harvey, the same, together with other registered mail packages and other mail matter, was, by said railway mail clerk in charge of said mails, duly inclosed in a regular United States mail sack or mail pouch, which said mail sack or mail pouch was securely locked or fastened by the official government strap and lock.</p> <p>“That from and after the time of the depositing of the mail sack containing said currency in defendant’s mail car at Minneapolis, Minnesota, for the purpose of transit and transportation for delivery at Harvey, North Dakota, the same was under the exclusive care, custody, and control of the postal clerks regularly employed by the United States government, and in charge of the mail in said car; that the mail sacks containing said registered package, from and after the time of its delivery in said postal car, to the proper postal clerks therein, up to and including the delivery of said mail sack at Harvey, North Dakota, was in the exclusive care, custody, and control of the said postal clerks or authorities.</p> <p>“That upon the arrival of defendant’s said train and postal car at said town of Harvey, North Dakota, said railway mail clerk or other postal official, between eleven and twelve o’clock of said night, delivered said mail sack, duly locked, together with said registered package of currency therein contained, to one James Magson, the night station agent or night operator of defendant at said town of Harvey; that said night station agent or night operator was not sworn as an official or employs of the post-office department of the United States government as required by law, but was then and there employed and duly authorized by the defendant to receive and take charge of all mail matter received over defendant’s said line of railway at said town of Harvey, including the mail sack or mail pouch containing said package of currency, and to deposit same in defendant’s- depot at Harvey, North Dakota, and did so receive, take charge of, and deposit said mail sack or mail pouch.</p> <p>“That defendant was not sworn as an official or employs of the post-office department of the United States government, and had not subscribed or sworn to any oath relating to or concerning the carriage of the United States mails, or the performance of defendant’s duties as such carrier of the mails.</p> <p>“That section 713 of the postal laws and regulations of the United States of the year A. D. 1893, which was in force at the time of the receipt and transmission of said registered postage, is in words and figures as follows, to wit: ‘The railroad company will also be required to take the mails from and deliver them into all intermediate postoffices and postal stations located not more than 80 rods from the nearest railroad station at which the company has an agent or other representative employed.’</p> <p>“That said post office at Harvey was an intermediate post office, and was located not more than 80 rods from defendant’s railroad station or depot at or near said town of Harvey.</p> <p>“That, under said postal regulation, it was the duty of said defendant to provide a sufficient and safe receptacle or place for the safety and security of said mail, while in its said custody; also to safely care for and guard said mail sack and its contents during the night; also, to safely deliver the same to the. postmaster or postmistress at the post office in said town of Harvey, North Dakota. But, neglecting its said duty in the premises, defendant wholly failed and neglected to provide any receptacle or place for the safe or secure keeping of mail, and also failed to place a duly sworn official in charge of said mail sack, and further wholly failed to safely care for or guard said mail sack and its contents, and also wholly failed to safely deliver the same at the post office, to the postmaster in said town of Harvey; that by reason of defendant’s said negligence some person, to this plaintiff unknown, in some manner not known to this plaintiff, obtained access to said mail sack, and opened the same, and abstracted or took therefrom said registered package, whereby the same was wholly lost to said German State Bank.</p> <p>“That one George A. Soule was then the roadmaster or foreman employed by said defendant at said town of Harvey, or one of defendant’s employés or servants, but was not sworn in as an official or employs of the post office department, as required by law, and was not authorized or employed by defendant to take charge of said mail sack, or to perform any duty in relation thereto, and had no right of access to said mail sack, or to the mail therein contained, by virtue of his said employment by defendant.</p> <p>“That said Soule had previously unlawfully obtained, and caused to be made, a key to the United States government mail sacks or mail pouches, and personally, or with the aid and assistance of some person or persons to this plaintiff unknown, did enter one of the rooms contained in the said depot building, where said mail sack or mail pouch had been placed by defendant’s operator or night agent on the floor or wall of said room, and not in any separate room, closet, or other safe receptacle capable of being securely fastened against any intruder or unauthorized person, by lock and key or otherwise; that said room was not designed for or capable of safely keeping valuable articles or property.</p> <p>“That said Soule, or other person, had no right of access to said room, or to said mail sack or mail pouch, but through the negligence of defendant and its said night operator or night agent, as set forth in this complaint, did gain entrance to said room, and obtain access to said mail sack or mail pouch, and the mail matter therein contained, ánd did find said mail sack or mail pouch situated or placed as above set forth, so that the same was readily accessible to any person gaining entrance to said room, and did find said mail sack or mail pouch wholly unprotected and unguarded by said night operator or otherwise.</p> <p>“That said Soule, or other person, by reason of the aforesaid negligence of said defendant and its said night agent or night operator, did obtain access to said mail sack or mail pouch, and did unlock the same, and abstract and take therefrom the aforesaid registered package containing said three thousand dollars ($3,000.00) in currency, and did unlawfully convert the same to his use and benefit, and the same has never been delivered or returned to said German State Bank or to said Metropolitan Bank of Minneapolis, or to this plaintiff, the Bankers’ Mutual Casualty Company, or to any one for the benefit of any of them.</p> <p>“That in consequence of the loss of said package, as hereinabove stated, said Bankers’ Mutual Casualty Company, substituted plaintiff, became indebted to said German State Bank of Harvey under its said policy of insurance, and was compelled to and did pay said German State Bank the full amount of the loss so sustained by it, to wit, the sum of three thousand dollars ($3,000.00) in good and lawful money of the United States; the same being the amount of insurance or indemnity held by said German State Bank, and covered by said policy of insurance. That written demand has been made by said German State Bank and said Bankers’ Mutual Casualty Company of and from defendant, for repayment to them or one of them of said sum of three thousand dollars, a copy of which written demand is hereto attached as part hereof, and marked Exhibit B, which payment defendant has refused, and still refuses, to make.</p> <p>“That, by reason of the foregoing facts, the said Bankers’ Mutual Casualty Company has been and is now subrogated to all rights and remedies which said German State Bank of Harvey had against defendant, to recover the sum of three thousand dollars so lost, with interest on said sum from and after the 10th day of November, A. D. 1900.</p> <p>“That for the purpose of further effectuating the rights of subrogation of this substituted plaintiff, against defendant, and to enable it to recover from defendant the sum so lost, said German State Bank in writing transferred and assigned to the plaintiff all of its rights in and to said money lost, and to sue for the recovery thereof. A true copy of said instrument of assignment is hereto attached as part hereof, and marked Exhibit C.”</p> <p>Defendant in error demurred to said complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court, and, the plaintiff in error having elected to stand upon its complaint, the action was dismissed on the merits. The order sustaining the demurrer was duly excepted to, and this ruling of the court is assigned as error.</p>

The plaintiff in error (plaintiff below) was the owner of a frame, steam-power grain elevator and fixtures of the value of more than $4,000, situate ■on a railroad right of way at Western, Neb., which he had leased to the firm of Rundberg & McCann at a monthly rental, and an agreement on the part of the lessees to keep -the property insured in plaintiff’s name, and for his benefit, against loss and damage by fire.

<p>On Petitions for a Writ of Habeas Corpus.</p>

This is an action for damages for a personal injury, in which the court instructed the jury to return a verdict for the defendant upon this state of facts: The defendant was operating passenger trains between San Francisco, in the state of California, and Ogden, in the state of Utah. It was in the habit of drawing a dining car in these trains.

This is a libel against the propeller White Star, the barge Eva S. Robinson, and also against Luther L. Slyfield, as owner of said vessels, for a breach of a contract civil and maritime.

This was an action for the conversion of lumber and cord wood cut and removed from the Black Hills forest reserve of the United States, and used by the Homestake Mining Company, a corporation, in conducting its mining operations.

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

Appeals from the Circuit Court of the United States for the Western District of New York. In Equity. Suits for infringement of letters patent No. 366,362, issued July 12, 1887, to. George Westinghouse, Jr., and No 508,654, issued to Elihu Thomson November 14, 1893, both for cooling transformers. On appeals from decrees for complainants.

In Equity. Suit for infringement of letters patent No. 366,566, granted to Burton, July 12, 1887, for a metallic spring bed frame. On final hearing.

In Equity. Suit for infringement of patent. On motion for dismissal by stipulation and for leave to withdraw evidence from record.

<p>1. Bankruptcy—Exemptions.</p> <p>Exemptions in bankruptcy can only be allowed under the provisions of the various statutes of the states on the subject.</p> <p>3. Same—Exemptions from Proceeds of Property.</p> <p>Since, under the law of Pennsylvania, exemptions can be allowed to a debtor only from specific articles of personal property, including cash or valuable securities, a bankrupt, having elected to take a part of his exemption in personal property, was not entitled to take the balance from the proceeds of other, property sold by his assignee for the benefit of creditors before bankruptcy proceedings were instituted.</p>

<p>Action in Ejectment and Cross-Action in Trespass. Tried together by the court without a jury by stipulation.</p>

<p>Action at Law on Municipal Bonds.</p>

<p>1. Public Lands—Railroad Grant—Rights of Mortgagees.</p> <p>The mortgagees of the Southern Pacific Railroad Company have no other or greater rights than the company itself in lands erroneously patented or certified under its grant.</p> <p>2. Same—Construction of Grant.</p> <p>None of the lands within the 30-mile limit of the grant made to the Atlantic & Pacific Railroad Company in California by Act July 27, 1866 (14 Stat. 292), passed to the Southern Pacific Railroad Company by virtue of the grants made to that company by the joint resolution of June 28, 1870 (16 Stat. 382), or the act of March 3, 1871 (16 Stat. 573).</p> <p>8. Sam:e—Suit to Determine Rights under Railroad Grant—Equity Jurisdiction.</p> <p>The United States may maintain a suit in equity, under Acts March 3, 1887, Feb. 12, 1896, and March 2, 1896 (24 Stat. 556, 29 Stat. 6, and Id. 42), to set aside patents erroneously issued to a railroad company for lands under a grant, and to test the bona fides of persons claiming to be bona fide purchasers, and establish and confirm their rights in any of the lands so patented, and may in the same suit require an accounting from the railroad company in respect to such of the lands involved as it has sold, and obtain a decree against it for the sums recoverable therefor under such acts.</p> <p>4. Equity—Objections to Jurisdiction—Time eor Making.</p> <p>Objections to the jurisdiction of a court of equity on the ground that the remedy at law is plain, adequate, and complete must be made at the earliest opportunity, and before the defendants have entered upon their defense on the merits.</p> <p>6. Public Lands—Suit to Determine Rights under Railroad Grant-Parties.</p> <p>In a suit by the United States under Act March 3,1887, and its amendments, to determine rights in lands erroneously patented under a railroad grant, where it is alleged and shown that purchasers from the company are very numerous, and that they all occupy the same position, it is not necessary that all should be made defendants, but a number may be joined as representatives of the class, and the titles of all confirmed,</p> <p>. where it appears that they were bona fide purchasers.</p> <p>6. Same—Construction of Statute.</p> <p>. Act March 2, 1896, amendatory of prior acts relating to suits to recover lands erroneously patented under railroad grants, and which provides that “no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed,” but requires payment to be made for such lands to the United States either by the purchaser or by the grantee company in case it has received payment from the purchaser, does not operate to confirm the title of the company, or to enlarge its rights.</p> <p>7. Same—Recovery of Prtce of Lands Sold by Company.</p> <p>The provision of such acts requiring the grantee company to pay to the United States the minimum government price for the lands erroneously patented to it, and which it has sold to bona fide purchasers, in ease it has received so much from the purchaser, was within the power of congress, and is not invalid, as creating an indebtedness by a retrospective act, but, on the contrary, is a waiver by the government, to the extent of the excess above the minimum price, of its right to recover the full value of the land, which arose from the act of the company in selling the same without right.</p> <p>8. Same.</p> <p>The fact that the error in issuing patents to a railroad cotnpany for lands to which it was not entitled under its grant was that of the land department constitutes neither a legal nor equitable defense to an action by the United States to recover such lands, or their value, when sold to bona fide purchasers, at least where such error did not prevent the company from obtaining all the lands to which it was entitled under its grant.</p>

In Admiralty. . Suit by an American seaman to recover wages for services on a British ship. The libelant was hired at Philadelphia, and signed shipping articles for a term of three years, and was paid one month’s advance wages, in violation of the twenty-fourth section of the act of congress of December 21, 1898 (2 Supp. Rev. St. U. S. p. 907; 30 Stat. 763).

In Bankruptcy. On review of order made by the referee denying a claim presented by Theo. Knapstein & Co. for payment out of the proceeds of certain property sold by the trustee, against which the claimants assert that they had a mortgage given by the bankrupt to secure a loan of $1,000.

<p>1. Marshal’s Fees—Attendance of Deputy.</p> <p>A marshal is entitled to charge for the attendance of a deputy before a United States commissioner, though the same person is paid the same day. for attendance as bailiff before federal courts.</p> <p>2. Same—Unnecessary Process.</p> <p>It not being for a marshal to determine whether there is occasion for issuing process, he may charge for a service of a warrant for arrest when the defendant is already under arrest for another offense, and service of subpoenas to witnesses already summoned to attend in another case on the same day; the process being placed in his hands for service, and appearing to be issued out of the proper court, and regular in form and purport.</p> <p>8. Same—Discharge.</p> <p>A marshal may charge for a discharge where defendants were committed for nonpayment of a fine and it was paid the same day.</p> <p>4. Same—Commitment.</p> <p>A marshal may charge for a commitment where defendant is already under arrest on another warrant.</p> <p>5. Same—Travel.-</p> <p>A marshal is allowed for travel on the service of each warrant when not more than two are served on the same defendant for the same party on the same day.</p> <p>6. Same—Transportation.</p> <p>A. marshal, for transportation on orders to bring in defendants or witnesses, or to take them back to jail, will be allowed only actual expenses.</p> <p>7. Same—Venire for Jury.</p> <p>The marshal is entitled to $2 for each venire, the aggregate not to exceed $50 at any term, for bringing in grand and petit jurors.</p> <p>8. Same—Bringing in Poor Convicts.</p> <p>A marshal may charge for travel and transportation and for attendance in bringing in poor convicts before a commissioner under Rev. St. U. S. § 1042.</p> <p>9. Same—Copies of Libels.</p> <p>A marshal is entitled to the customary charges at the rates' charged for such services by officers of the state courts for copies of libels in admiralty, for services on newspapers, and for posting; the service of copies being required by order of court.</p> <p>10. Same—Mileage.</p> <p>The existence of a continuous line of railroad between two points, on which a train occasionally runs, which line is shorter than that ordinarily used, does not limit the marshal, in charging for mileage between such points, to the length of such line.</p> <p>1L Same—Discharge of Witness.</p> <p>As a marshal who has a person in his custody on lawful process must either commit or discharge him, and the fee is the same in either case, a charge for discharging witnesses taken under a warrant to remove and turn them over to another marshal should not be disallowed on the ground that there was no discharge.</p> <p>13. Same—Costs.</p> <p>Costs were not allowed the marshal on a petition for the allowance of charges disallowed by the comptroller, a considerable number of charges originally made by the marshal and disallowed by the comptroller having been abandoned by the marshal in his amended petition.</p>

<p>In the Matter of Charles R. Hemstreet, a Bankrupt. Answer to question as to construction of bankruptcy act, submitted on certificate of referee.</p>

In Bankruptcy. In the matter of the White Star Eaundry Company, an alleged bankrupt. Petitioning creditors sought an adjudication in bankruptcy, and the answer raised an issue whether the business of the •corporation was within the provisions of the act. Petition dismissed.

<p>In Bankruptcy. On report for final dividend and settlement.</p>

<p>1 Bankruptcy—Involuntary Proceedings—Allowance of Attorney’s Fees.</p> <p>Attorneys representing the petitioning creditors of an involuntary bankrupt, and elected by the creditors to represent the trustee, who followed property fraudulently disposed of by the bankrupt into another state, and there recovered all that has come into the hands of the trustee for distribution to creditors, will be allowed a reasonable fee for their services therefrom by the court, where the creditors refuse to pay such fee.</p>

<p>In Bankruptcy.</p>

In the fall of 1897 the plaintiff in error, John O. Teller, defendant below, was engaged in furnishing ties to the receivers of the Union Pacific Railroad Company on contract. John H. Mullison was then the claimant, and for many years in the possession, of certain placer mining grounds, consisting of 720 acres, in Carbon county, Wyo., known as the Montezuma Placer, and was desirous of obtaining the title thereof from the government.

ern District of Kentucky. By an act passed by the legislature of Kentucky February 24, 1868, the several counties of that state were authorized to subscribe to the capital stock of any railroad company whose line should pass through the county, and to issue its bonds therefor, upon a vote of the electors at an election ordered by the county court.

. This action was begun in the district court of Crawford county, Iowa, by the plaintiff, as beneficiary, to recover $3,000 upon a benefit certificate issued by the defendant to her husband, James R. Kerr, a member of the defendant fraternal order, by the terms of which certificate that amount was to be paid by defendant to plaintiff, as beneficiary, upon the death of her said husband while a member in good standing of said order.

On the 3d day of January, 1893, D. W. Hodges, a merchant of Lehigh, Ind.

The answer of the defendant denies that it has any officers in the city and county of San Francisco or in the state of California save and except managers and cashiers of its banking business local to the state of California, and avers that it is a corporation duly organized and existing under and by virtue of the laws of England and Great Britain, having its principal place of business in London, England.

<p>1. Courts—United States Circuit Court—Jurisdiction—Judgment—Mandamus to Enforce.</p> <p>The circuit courts of the United States have power to issue writs of mandamus in aid of an existing jurisdiction only; and when such writs are issued to enforce a judgment of the circuit court the jurisdiction cannot be enlarged to enforce a judgment of the state court, though such judgment was the foundation of the action in the circuit court.</p> <p>2. Same—Judgment against Municipality—Filing with Comptroller—Necessity.</p> <p>Laws La. 1870, Act No. 5, denies the power of courts to issue writs of execution or fieri facias against the city of New Orleans, and declares that final executory judgments against such city may be filed and recorded in the city comptroller’s office, to be thereafter paid from money set apart in the annual budget, or from the annual estimate for contingent expenses. Held, that where relator filed a judgment recovered against such city in the state courts, and thereafter brought suit against the city in the federal court on súch judgment, but failed to file the judgment subsequently recovered in the federal courts, he was not entitled to mandamus from the federal court to compel the city officers to include the amount of the judgment in the annual budget of expenses, and to pay the same.</p>

<p>In Equity. Suit for infringement of letters patent No. 354,793 for electric railway motors, issued to Walter H. Knight December 21, 1886. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 571,102, for a mold for shaping metallic tooth crowns, issued November 10, 1896, to Louis Lynn White. On final hearing.

In Equity. Suit for infringement of reissued letters patent No. 10,376, issued August 26, 1883, based on a part of original patent No. 252,400, granted to Jas. D. Pierce January 17, 1882, for a covering for steam pipes. On final hearing.

In Equity. Suit for infringement of letters patent No. 680,415, granted August 13, 1901, to Oliver H. Kingsland, for a thermal door-closing apparatus, and No. 680,458, granted to the same patentee for a door-closing apparatus. On motion for preliminary injunction.

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

<p>In Equity. On application for a decree granting a perpetual injunction in accordance with a stipulation of the parties.</p>

In Equity. Suit to foreclose railroad mortgage. Held: or operated said road by virtue of said franchises, or any part thereof, or, if said franchises were sold and conveyed to that company, they were sold and conveyed subject in all respects to the prior lien on them of the Fonda and Scribner mortgage; that the sale of said franchises under said Cleveland judgment to the Milwaukee & St.…

<p>At Law. Actiom on coupons from municipal bonds.</p>

<p>t. Equity—Injunction—Violation—Service of Process.</p> <p>The violation of an injunction is punishable as a contempt, though at the time of the violation no process had been served on defendants in the bill.</p> <p>2. Sam e—P l f, ad ing—Alleg at ions.</p> <p>In answer to rules in contempt proceedings for the violation of a restraining order in the district court for the Southern district of West Virginia, defendants in the rules, who were residents of West Virginia, and not named in the bill, stated that they were advised that they were parties to the original bill. The bill stated that it was brought against the defendants named, “their confederates, associates,” etc., whose citizenship and residence were unknown. Held, that such defendants in the rules were not parties to the bill, since the allegation must be treated as referring to defendants who could be made parties, and so could not refer to any resident of West Virginia, and no defendant can be made defendant to a bill save by name.</p> <p>8. Same—.Turisdiction—Collateral Attack.</p> <p>The question of jurisdiction to entertain a bill cannot be made by persons not parties to it, in a collateral proceeding to punish them for violation of a restraining order in the suit.</p> <p>4 Same—Kvidencic.</p> <p>Evidence considered, and held to show defendants in contempt proceedings for violation of an injunction to have been “confederates and associates” of defendants in the bill on which the order was issued.</p> <p>5. Same—Service of Injunction—Absence of Service.</p> <p>It is not necessary that a person be served with an injunction, in order to render him amenable to its provisions, if it appears that he had reasonable notice of it.</p> <p>6. Same—Injunction—Construction.</p> <p>An injunction restrained defendants, their associates, etc., from congregating in or about the premises of plaintiff for the purpose of inducing its employés to quit work; from conducting or leading any body of men up to or upon the premises of plaintiff; from interfering with plaintiff’s employés on its land or premises; from interfering with the plaintiff’s employés, or with any person desiring to enter its employment, by the use of threats, personal violence, or intimidation, or by any other means whatsoever calculated to intimidate, terrorize, and alarm or place in fear any of the employes of the plaintiff in any manner whatsoever at or upon its premises; and from in any unlawful manner interfering with the plaintiff’s employés while they might be passing to and from ■ their work on and near the plaintiff’s premises. Held, that the meaning of the order was that the defendants and all persons subject to it were inhibited from personal violence or intimidation of any sort towards the employes of plaintiff, even though such acts of intimidation were not performed on plaintiff’s premises.</p> <p>7. Same—Injunction—Violation—Evidence.</p> <p>Evidence considered, and held to show a violation of an injunction restraining defendants from intimidating or interfering with plaintiff’s employés.</p>

On petition by the United States for a review of the decision of the board of general appraisers in the matter of certain merchandise imported by Lucius Beebe & Sons into the port of Boston and Charles-town.

<p>In Bankruptcy.</p>

<p>1. Bankruptcy—Claims—Priority—Wages.</p> <p>Bankr. Act, § 64 B (4), relating to the priority of claims, authorizes priority for wages due to workmen, clerks, or servants, earned within three months before the date of the commencement of the proceedings; and subdivision 5, for debts owing to any person who by the laws of the states or United States is entitled to priority. Held1 that, where wage claimants were entitled to liens by virtue of state law, they were entitled to priority under subdivision 5, though the wages were not earned within three months before the date of the commencement of the bankruptcy proceedings.</p> <p>2. Same—Wages—Liens—State Statute.</p> <p>Laws N. Y. 1897, c. 624, § 29, declares that, in all distributions of assets under all assignments made in pursuance of the act, wages owing to employes of the assignor at the time of the execution of the assignment, or wages for services rendered within a year prior thereto, shall be preferred before any other debts. Held, that such statute created a lien in favor of wage claimants on the fund in the hands of the assignee produced from the assigned property, which lien attached to the fund when transferred by the assignee to a trustee in bankruptcy.</p>

<p>1. Bankruptcy—Injunction—Pleading—Jurisdiction.</p> <p>Where an application for an injunction in bankruptcy proceedings described the proceeding as: “In the District Court of the United States for the Northern District of New York. In Bankruptcy. No. 1,141,”—■ and stated that the petition in bankruptcy was filed August 7, 1902, and a writ of subpoena issued “herein,” such application contained a sufficient showing that the proceeding in bankruptcy was pending in the Northern district of New York to give the United States district court of such district jurisdiction.</p> <p>2. Same—Verification by Attorney.</p> <p>Where the papers on an application for injunction in bankruptcy proceedings disclosed that the moving creditors lived at a distance, and that the application was made by their attorney in their behalf and for their benefit, and stated why it was made by the attorney, and not by the creditors, an objection that the application was verified by the attorney, and not by the creditors themselves, was untenable.</p> <p>8. Same—Attachment—Sale—V alidity—In junction.</p> <p>A creditor of a bankrupt attached certain of his property, and thereafter procured an order for the sale thereof. The sale was had, without a proper or sufficient notice, to the creditor’s son, for one-tenth of the appraised value of the property. An application was made in the state court to set the sale aside, in -which an order was made restraining further proceedings by the plaintiff in attachment, the purchaser, and the sheriff pending such application. Eeld, that such facts were sufficient to entitle creditors in an involuntary bankruptcy proceeding to an injunction against such attaching creditor, the sheriff, and the purchaser, to restrain them from selling or disposing of the property so attached pending the bankruptcy proceeding.</p>

<p>In Bankruptcy.</p>

<p>3L Execution—Levy on Real Estate.</p> <p>Code Va. 1887, § 35S7, authorizes a levy of execution on personal property, but not on real estate. Acts 1821-22 provided that, in a writ of fieri facias on a judgment or decree against one liable to the commonwealth, real estate might be levied on. The enactment was carried into Code 1849, p. 223, § 8, and Code 1887, § 687. By Code 1819 (volume 2, p. 51), the right to levy on real estate was given only as against certain public officers. Act of congress (Rev. St. §’ 916) provides that in “common-law causes” in court's of the United States the plaintiff shall be entitled to similar remedies, by execution or otherwise, to reach the property of the judgment debtor, as prescribed by the laws of the state where the court is held “in like causes.” Held, that an execution from a federal court in Virginia may not be levied on real estate there, though the judgment is in favor of the United States, since the phrase “in like causes” does not give the government the rights of the state, but, as applicable to Virginia, which is not a code state, means “common-law causes.”</p> <p>2. Same—Statutes.</p> <p>The rule would not be otherwise had Code Va. 1887, § 687, been adopted after Rev. St. U. S. § 916, which also authorizes the federal courts to adopt from time to time, by rules, such state laws as may be in force touching attachments and other process, since such statute would not give the federal courts power to do more than adopt the state statute.</p> <p>3. Same—Criminal Case.</p> <p>The rule is not different in criminal or penal cases, since Rev. St. U. S. § 1041, provides that a judgment for a fine or penalty may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced.</p>

<p>Action by John W. Schmidt and others against the city of Defiance.</p>

<p>Hearing on Bill, Answer, and Proof.</p>

<p>1. Collision—Defective Steering Gear of Tug—Duty of Inspection.</p> <p>On a steam tug owned by a railroad company, and used for towing car floats in tbe waters around New York City, the rod extending from the pilot house to the valve that put in operation the steam steering gear was made in sections, the upper section being connected to the one below it by means of a sleeve, which was fastened to the upper end of the lower section by a set screw. As the tug was passing up East river on a strong flood tide, having a loaded float on each side, the steering gear failed to work by reason of the set screw having become loose, allowing the sleeve to slip down „and disconnect the rod, and through such fact, and the delay of the pilot in using the hand gear, one of the floats struck a pier, and broke her lines, and was then drifted by the tide against a vessel moored to an adjoining pier, causing serious injury. The connection was in a place where it could not be readily examined, and the testimony of claimant was that the screw was set two years before, and had not been inspected since, such inspection being considered unnecessary; but there were dents in the rod showing that the screw had been used several times upon occasions of either general or special examination. Held, that the tug was in fault for the collision, not only because of the negligent delay of the pilot in using the hand gear, but because of the failure to make proper inspection of the connection, whieh it was the duty of the owner to have made of a part so vital to safe navigation, especially in view of the service in which the tug was employed.</p> <p>8. Same—Right to Limitation of Liability—Privity or Knowledge of Owner.</p> <p>A vessel owner, which employs competent persons to perform the duties imposed upon it as such owner, and to determine what such duties are, may limit its liability in respect to damage caused by a collision wbich resulted from the failure of such persons to make or require proper inspection of the vessel, where such owner had no actual knowledge of the neglect, or the defect arising from it, although such lack of knowledge arose from inattention, or from necessity, owing to the magnitude of the owner’s business.</p> <p>8. Same.</p> <p>Where a tug was alone in fault for the breaking of the lines by which she was towing a barge, resulting in a collision between the barge and another vessel, and in proceedings in rem would alone have been liable, the owner of both tug and barge is required to surrender the tug only, in order to obtain a limitation of liability.</p>

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

<p>Action "by John J. Mitchell and others against the Colorado Fuel & Iron Company and others. Motion for a preliminary injunction.</p>

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

<p>1. Federal Courts—Jurisdiction—Citizenship—Pleading.</p> <p>A bill, by alleging that complainant is a resident of or lives at a certain place, does not state his citizenship, necessary to give the federal court jurisdiction.</p> <p>2. Same—Service on Nonresident Corporation.</p> <p>Under Act Cong. March 3, 1875 (18 Stat. 470), amended by Act Cong. March 3, 1887 (24 Stat. 552), restricting the districts in which a personal transitory action may be brought to that in which defendant resides or that in which plaintiff resides, and in the latter only when defendant can there be found for service of process, suit may be maintained against a foreign corporation in the district of plaintiff’s residence, where there has been service of process on the corporation’s agent, appointed under Code Va. 1887, § 1104, requiring a foreign corporation doing business in the state to appoint a resident of the state on whom, process may be served.</p> <p>8. Fraud in Procuring Contract.</p> <p>Statement of an agent of a building and loan association to complainant that his stock would mature in six years, whereby his loan would be paid, will not be held a fraudulent representation avoiding the contract, but an expression of opinion, or an unauthorized statement, complainant having a prospectus of the association, stating that shares are estimated to mature in about six years, and that no agent has- power to change any of the conditions or terms expressed therein.</p> <p>4. Same—Laches.</p> <p>An unexplained delay of four years after knowledge of the falsity of statements is fatal to relief in equity for fraud in procuring a contract.</p> <p>5. Contract—By what Laws Governed.</p> <p>A contract by which a stockholder in a building and loan association borrows money of it is one of Alabama, the association being created under its laws, and having its chief office there, and it being provided that remittances shall be sent to it at H., in Alabama, by check, payable there, though monthly payments may be made to local treasurers, the association not being liable therefor till the money is received at the home office.</p> <p>6. Usury—Avoiding Law.</p> <p>Provisions in a contract by which a stockholder borrows money of a building and loan association, intended to make the contract one of Alabama, will not be held to have been intended to avoid the usury laws of Virginia, both parties expecting, when the contract was made, that the maturity of the stock, whereby the loan would be paid, would be in such a time that the interest paid would be less than six per cent, per annum, the rate allowed by the Virginia laws.</p> <p>7. Same—Building and Loan Association—Pleading.</p> <p>As construed by supreme court of Alabama (Code Ala. 1886, § 1556, subsees. 9, 10), providing a building and loan association may loan to a shareholder on such terms as may be prescribed by the by-laws, and when advisable, or when several desire to borrow, it may loan to the highest bidder, allows such an association to lend on a fixed premium, which, together with the interest, exceeds the interest rate which others may charge; and a bill to avoid a contract of loan on the ground of usury because of a fixed premium must allege that the premium feature is contrary to the association’s by-laws, and it is not enough to allege that the contract is forbidden by the statute.</p> <p>f 6. What law governs usury by building and loan associations, see note to Kirlicks v. Association, 51 0. 0. A. 319.</p>

1'n Equity. Bill filed by judgment creditors against stockholders of James H. Walker Company to enforce unpaid stock liability. On exceptions to master’s report, which found that the property exchanged by defendants for their stock was grossly overvalued, but that defendants acted in good faith and without fraudulent intent. The following is the opinion of the lower court on demurrer to the bill: “Within the decision of Coit v. Amalgamating Co., 119 U. S. 343, 7 Sup.

<p>In Equity. Suit to enforce an order made by the interstate commerce commission.</p>

<p>1. Voluntary Bankuptcy—Conditional Sale—Failure to Record.</p> <p>The institution of a voluntary proceeding under Bankr. Act 189S forthwith makes all the bankrupt’s creditors adversary parties in a legal proceeding for the appropriation of his property for the payment of his debts, as much as an involuntary proceeding, so that they are within Rev. St. Mo. § 3412, declaring void as against creditors, unless evidenced by a recorded writing, the condition in a sale of chattels that», the title shall remain in the seller till payment of the price.</p>

<p>1. Collision—Steamship and Anchored Barge.</p> <p>A steamship passing down the Delaware river after daylight in the morning struck and sunk an anchored barge, laden with coal. The defenses that the barge was anchored in the channel and that there was a fog were not sustained by the proof; it being shown that the barge was within the regular anchorage grounds, and well outside the channel, and that it was sufficiently clear to permit objects to be seen at a distance of a mile. Held, that the steamship was in fault, both for being outside the channel, and for failing to maintain an efficient lookout.</p> <p>2. Same—claim of Exbmítion—Carrying Licensed Pilot.</p> <p>There can be no exemption of the owners of a vessel from liability for a collision on the ground that she was in charge of a licensed pilot, whose taking was compulsory under the law, unless it is affirmatively shown that the pilot was solely in fault.</p> <p>8. Same—Contributory Fault—Anchor Watch.</p> <p>A barge anchored in known anchorage grounds, outside the channel used by passing vessels, cannot be held in fault for a collision with a moving vessel in the daytime, and in the absence of fog, on the ground that she had no anchor watch, which it was not customary to maintain under such conditions.</p>

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

<p>In Admiralty. Action to recover freight.</p>

<p>1. Collision—Steamer and Schooner Crossing—Inefficient Lookout.</p> <p>A collision occurred at sea in tlie niglit between a steamer and a schooner on crossing courses. The night was clear, and the wind light, but it was shown that the schooner had steerageway, and that her lights were burning, and in proper position. While the evidence was conflicting as to her course, it gave no reasonable support to the contention of the steamer that she was on such a course that her lights could not be seen in time to have prevented the collision, although the steamer’s lookout and three other members of her crew testified they were on the watch, and did not see the lights until immediately before the collision. Eeld that, under such evidence, the steamer must be held in fault.</p>

<p>On Demurrer to Return to Writ of Habeas Corpus.</p>

<p>On Demurrer to Amended Petition.</p>

<p>1. Land Grants—Location—Conclusiveness.</p> <p>Tbe action of tbe land department in defining the limits of a grant to a railroad company, pursuant to its duty, on the line of tbe road being located, and tbe map showing tbe location being furnished to it, is final, as between persons claiming land within such limits,—one under tbe homestead law, tbe other as purchaser from tbe road.</p> <p>2. Purchasers in Good Faith.</p> <p>The land department cannot be held, as matter of law, to have erred in holding one an innocent purchaser from a railroad company of land within its grant, so as to be entitled to tbe protection of Act Cong. March 3, 1887 (24 Stat. 556), though it failed to entitle itself to the land by completing the road; no one having been in possession when he contracted for the land and received his deed from the company.</p> <p>8. Equity—Amendment of Bill.</p> <p>Bill to quiet title to land, presenting merely the question whether there was error of law in the action of the land department in issuing patent to defendant, may not be amended to present the questions of limitations and estoppel; complainant being in possession, and such matters being available as defenses, in any action defendant may bring for possession, where they can be better heard and disposed of.</p>

<p>1. Federad Courts—Jurisdiction—Action by Administrator—Diverse Citizenship.</p> <p>For the purpose of determining the jurisdiction of a federal court on the ground of diverse citizenship, in an action by an administrator for the wrongful killing of his intestate, the citizenship of the administrator, and not of the beneficiaries of the action, controls, and a complaint failing to allege the citizenship of the administrator is insufficient.</p>

<p>1. Eire Insurance—Condition of PoLrcv—Care of Goods after Fire.</p> <p>A provision of a fire insurance policy that “if fire occurs the insured shall * * * protect the property from further damage, and forthwith separate the damaged from the undamaged personal property, and put it in the best possible order,” is an absolute requirement, which must be observed, unless waived or excused, as a condition precedent to any recovery on the policy.</p>

<p>1. Bankruptcy—Fraudulent Purchases—Rescission by Seller—Evidence.</p> <p>Where a bankrupt, prior to bis failure, represented to a commercial agency that it -was worth $32,875 over all liabilities, when in fact its property was not greater than 50 to 60 per cent, of its liabilities, and, ■on the purchase-of goods, falsely informed the seller’s traveling salesman that it was perfectly solvent and had $25,000 paid-up capital, the seller was entitled to disaffirm the sale, and recover the goods from the buyer’s trustee in bankruptcy, without proof that the buyer at the time of "purchasing the goods actually-intended not to pay for them.-</p>

This action was commenced in the superior court of the state of Washington for San Juan county to recover possession of lot i in section 36, township 37 N., range 3 W. of the Willamette meridian, and also to recover the value of a quantity of limestone extracted from a quarry found in said land.

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

<p>1. Railroads—Claims against Receivers—Jurisdiction to Enforce against Purchaser.</p> <p>A federal court, which has sold railroad property in foreclosure proceedings, requiring the purchaser to assume and pay such claims against its receivers as it might subsequently direct, and reserving the right to retake and resell the property in default of such payment, has exclusive jurisdiction to enforce such requirement; and the purchaser has the right to invoke such jurisdiction for his protection against actions in a state court on claims against the receivers.</p> <p>2. Federal Courts—Injunction to Stay Proceedings in State Court.</p> <p>Rev. St. § 720, does not prevent a federal court from granting an injunction to stay proceedings in a state court for the protection of its own previously acquired jurisdiction.</p>

Rule for New Trial. Action at law for damages brought by Andrew C. Walker and Martha, his. wife, against the Wilmington Steamboat Company for injuries received by the wife while a passenger on board one of the boats of the said company.

<p>In Bankruptcy.</p>

<p>In Equity. On settlement of decree.</p>

On July 1, 1902, Floyd O. Hines filed a petition in bankruptcy in the office of the clerk of the district court for the Southern district of West Virginia, accompanied by an affidavit of his inability to pay the costs. “Schedule B (2),” filed with petition, showed that said Hines had personal property of the value of $77, including $5 in cash, and $20 in cash in the hands of the Chesapeake & Ohio Railway Company, due him as wages.

<p>1. Bankruptcy—Fraudulent Conveyance—Exemption.</p> <p>A bankrupt, while in failing circumstances, disposed of all his valuable assets, receiving a judgment note for part of the consideration. A judgment was entered on the note a few days after it was given, and the judgment was transferred to another on the record. Thereafter the bankrupt made an assignment for the benefit of creditors, and then attempted to discount the judgment so previously assigned, stating to the attempted transferee that he was afraid the original transfer would not stand, and that, while the assignee of the judgment had paid over the money, it was withheld so that if the bankrupt’s creditors got hold of it it was to be refunded, otherwise the bankrupt was to have it. Held, that the original transfer of the judgment was fraudulent and void as to creditors of the bankrupt, and hence he was not entitled to his state exemption.</p>

<p>1. Bankruptcy—Claims for Rent in Pennsylvania—Dirtraint—Effect—Custom a Legis.</p> <p>Where, at the time of the failure of a bankrupt firm, it owed more than a year’s rent, and after the firm had been adjudged a bankrupt, but before the selection of a trustee, the landlord distrained for the full amount due, she was not entitled to a preference out of the proceeds of the bankrupt estate by reason of such distraint proceedings, since at the time they were begun the property was in custodia legis,' but was confined to the year’s rent given by the Pennsylvania statute in case of an execution.</p>

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

<p>On Application for Writ of Habeas Corpus.</p>

<p>L Bankruptcy—Corporations—Acts op Bankruptcy.</p> <p>A corporation which in fact has sufficient property to pay its debts does not become insolvent within the meaning of the bankruptcy act of 1898, nor does it commit an act of bankruptcy, by submitting to the appointment of a receiver by a state court.</p>

In March, 1891, Smith took a 99-year lease of certain real estate in Chicago from Elbert W. Shirk, in whose name the legal title then stood. The lessee agreed to pay rent, taxes, special assessments, and insurance.

<p>1. Admiralty—Libel of Beview—Power to Entertain.</p> <p>A court of admiralty may entertain a libel of review to correct its decree after the expiration of the term, where the petitioner is shown to be free from fraud or negligence in the matter, and the entering of the decree shows such fraud, or its equivalent, in effect, upon the rights of the petitioner, as to require the remedial action of the court upon' principles of justice.</p> <p>2. Same—Setting Aside Decree Inadvertently Entered.</p> <p>Where a decree dismissing a libel was inadvertently entered by the clerk, no order having been made by the judge, although he had indicated his intention to dismiss, and the fact of the entry was not known to the judge or counsel until after the close of the term and the expiration of the time for appeal, the court properly entertained a libel of review to set such decree aside, with a view of re-entering the same as of a later date, to preserve libelant’s right of appeal.</p> <p>8. Collision—Overtaking Steamer and Baft—Negligent Navigation.</p> <p>A raft of logs 2,000 feet long was being towed down the St. Clair river by three tugs, one of which was in front, to guide the forward end. An overtaking steamer was attempting to pass on the American side, when the head of the raft, reaching a bend in the river, came close to the shore, and the steamer, striking the land, sheered, and ran into it with such force as to break the boom sticks, and scatter the logs. Held, that the steamer was in fault for not being under better control, which was required in view of the manifest danger of collision; that the navigators of the raft were also in fault, it appearing that the forward tug was not making proper effort to keep the head of the raft off from the shore.</p>

<p>1. Principal and Surety—Indemnifying Bond—Liability—Exoneration.</p> <p>Plaintiff trust company contracted to indemnify M. against loss from the failure of Z. to erect certain houses on land sold by M. to Z. Z. gave a mortgage to M. to secure a part of the purchase price and money loaned to be used in the construction of the buildings, which money M. procured from S., assigning as security therefor the note and mortgage given by Z.; and, in order to secure the performance of the contract by Z., defendant executed a bond, sued on, for the benefit of the plaintiff surety company. Held, that the fact that plaintiff surety company executed its policy of indemnity to S„ assignee of the mortgage, instead of to M., was no defense to the action on the bond given by defendant for loss sustained by Z.’s failure to erect the buildings, since such loss was in fact sustained in exoneration of its liability to M.</p> <p>8. Same—Consolidation of Companies—Effect.</p> <p>Where a surety company was bound to indemnify against a contractor’s failure to erect buildings, and took a bond from defendant to secure such liability, the fact that plaintiff company thereafter transferred its assets to another company, the latter assuming its liabilities, and borrowed money from the latter with which to complete the buildings on the contractor’s default, did not preclude it from enforcing defendant’s liability on its bond.</p> <p>8. Same.</p> <p>Where an indemnitor had taken a bond from defendant to secure its liability for the failure of a contractor to erect certain buildings, it was no defense to an action on defendant’s bond for loss sustained by such indemnitor that, on the default of a subcontractor for preliminary work, he refused to acquiesce in the arrangement of the contractor for superseding such subcontractor; it not appearing that plaintiff had any right to interfere with such contractor, or that the subcontractor’s default had any natural connection with the failure of the contractor to finally complete the buildings as agreed.</p> <p>4. Same—Actions—Instructions.</p> <p>Where an indemnitor for the construction of buildings by a contractor had taken a bond from defendant to secure its liability, and, on the contractor’s default, plaintiff’s agent went to defendant’s agent, and requested defendant to proceed, and complete the buildings, which was refused, and the latter stated that, if the indemnitor believed he had a claim, to go ahead and finish the building, and present the claim, in an action on the bonds it was not error for the court to charge that the indemnitor’s loss was incurred in completing the operations under the directions of the obligor, through its local agent.</p>

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

The appellees filed a libel against the National City, a steamer, which had been chartered by the appellant, her managing owner, to the Alaska & Yukon Transportation Company, a corporation of San Francisco, for the voyage from San Francisco to Alaskan ports and to return to San Francisco, for a period of four months from and after February 5, 1895, with the privilege of an extension for four months.

The bill was to restrain infringement of Letters Patent No. 421,-797> granted February 18, 1890, to Samuel T. Wellman for a certain improved method of charging furnaces. The method is said in the letters patent to be adapted to charge open-hearth furnaces for the manufacturing of steel, or any melting furnace that is charged thróugh doors or openings in the side, in contradistinction to blast furnaces, or such as are charged from the top.

<p>1. Patents—Construction of Claims—Limitation by Language Used.</p> <p>Where the language of the claims of a patent is clear and unambiguous, it cannot be enlarged -by the courts, although it may not be broad enough to cover the actual invention of the patentee.</p> <p>2. Same—Infringement—Stove Dampers.</p> <p>The Farwell patent, No. 493,548, for an adjustable stove damper, was not anticipated and is valid, but is limited, not only by the prior art, but by the specific language of its claims, to a damper with a rod having two grooves in it, one on each side thereof, extending nearly its entire length, and is not infringed by the damper of the Ohnemus & Sanner patent, No. 623,417, in which the rod is not grooved.</p>

<p>1. Gift Causa Mortis— Delivery.</p> <p>A verbal direction by a creditor to his debtor to pay the debt, which is not evidenced by any note or other writing, to another, where the debtor at the time accepts the order and promises the donee to make payment to him, constitutes a good delivery to validate a gift of the chose in action causa mortis. Per Carland, District Judge.</p> <p>2. Same—Revocation—Partial Recovery of Donor.</p> <p>A donor 84 years old, when seriously ill and in expectation of death, made a gift to his wife causa mortis. The evidence showed that he partially recovered, and lived for nearly a year thereafter, being able to walk during a part of the time for a distance of half a mile, but did not disclose the nature of his illness. 2'eld, that it was error to charge as matter of law upon such evidence that the donor’s partial recovery operated as a revocation of the gift. Per Carland, District Judge.</p> <p>8. Pleading—Variance—Defense not Pleaded.</p> <p>The due process of law, without which parties may not be deprived of their property, requires that notice be given of the issue to be determined before it is tried. A defendant may not deny in his answer the plaintiff’s averments of a good cause of action, and then defeat him by a confession of the truth of those averments and an avoidance of their effect by the proof of new matter, no notice of which was given by the pleadings or by the course of the trial until plaintiff had introduced substantially all his evidence. Per Sanborn, Circuit Judge.</p> <p>4. Direction of Verdict—Departure from Issues.</p> <p>In an action to recover on a chose in action which plaintiff alleged had been verbally assigned to her by her husband, which assignment had been accepted by defendant, who promised to pay the debt to her, the court is not warranted in directing a verdict and entering judgment for defendant on the ground that the assignment to plaintiff was intended as a gift causa mortis, which became ineffectual by reason of the subsequent recovery of the donor, where defendant did not plead such defense, having himself received a gift from the donor at the same time and under the same circumstances, which he still retained, but denied his indebtedness and the assignment, such issues being the only ones litigated by the parties. Per Sanborn, Circuit Judge.</p> <p>5. Novation—Verbal Assignment of Chose in Action—Assent of Debtor.</p> <p>A verbal assignment of a chose in action, not evidenced by any n ¡te or other writing, assented to by the debtor, who promises to pay the debt to the assignee, constitutes a complete novation, and effectually substitutes the assignee as the creditor. Per Sanborn, Circuit Judge.</p>

<p>In Equity. Suit for infringement of letters patent No. 374,888 for a knitted fabric, issued to Levi Bywater December 13, 1887. On final hearing.</p>

In Equity. Suit fer infringement of letters patent No. 503,301 for a chain clip for cloth-stretching machines, issued to Alfred A. Whitley August 15, 1893. On final hearing.

<p>I. Patents—Infringement—Clamp for Textile Machinery.</p> <p>The Butterworth patent, No. 571,508, for an automatic clamp for textile machinery, is limited by the prior art to the specific mechanism described in the specification. As so limited, claim 6 held not infringed.</p>

In Equity. Suit for infringement of letters patent No. 327,626, for a method of attaching stiffening to dress waists, issued to Edward K. Warren October 6, 1885. On final hearing.

<p>1. Equity—Evidence to Overcome Answer—Testimony of Wife.</p> <p>Under the law of Pennsylvania, the testimony of a wife, supporting that of her husband, to a fact denied by the answer, is entitled at least to the weight of a corroborating circumstance, which is sufficient to satisfy the equitable requirement.</p> <p>2. Reformation of Contract—Mistake—Laches.</p> <p>One who seeks to reform a contract on the ground of mistake should act promptly, and, if there is any great delay, he is called upon to explain and excuse it. Lapse of time is a serious obstacle to the attainment of truth, and parties are entitled to its quieting effect on possible litigation.</p> <p>8. Same—Construction.</p> <p>Plaintiff was superintendent of a garnet mine belonging to the defendants, and was himself the owner of another mine adjoining, which he was induced to convey to them. As part of the consideration, he claimed that he was to be retained in his position as superintendent, for 20 years, at a salary of $20 a week, which he was then receiving. This was not expressed in the written agreement between the parties, and, according to the preceding-parol understanding set up, he was merely to be retained, at the salary he was then receiving, for a term of years to be afterwards agreed upon. Held, ,that this was too indefinite and incomplete to warrant a reformation of the contract; nor was it helped out by a provision in the contract that the royalties on ore mined there stipulated for should continue for the term of 20 years, unless the plaintiff should voluntarily leave his employment; nor by the further provision that they should be paid to his wife at a reduced rate—one-half—in case of his death during that period.</p> <p>4. Contract'to Pay Royalty on Ore Mined—Construction.</p> <p>By a written contract plaintiff agreed to convey to defendants a farm on which was a garnet mine, and which adjoined property on which defendants were also working mines. In part consideration for the conveyance defendants stipulated to pay plaintiff for a term of years a royalty “upon all ore shipped by them” from their mines in the township, including not only the mines then operated, by them, but also from the mines on the property conveyed, “if possession thereof be obtained” by them. The mines on the properly conveyed were then leased, the lessee having an option to renew, which he exercised, and defendants did not obtain possession, but received only the royalty from the lessee. Held that, under the terms of the contract, the obligation of defendants to pay royalty on ore from the farm purchased was conditioned on their ob-' taining possession of the mines thereon, and that under the facts stated they were not liable for such royalty.</p> <p>5. Contracts—Construction by Parties.</p> <p>The construction of. a contract which is plain and unambiguous cannot be affected by voluntary payments made by one party thereunder through mistake, and which were clearly not required by its terms, and were not demanded by the other party, although, had they been required by the contract, they would have been in arrears for over three years.</p> <p>6. Mining—Contracts for Royalty—Implied Condition to Operate Mines.</p> <p>Plaintiff conveyed certain property to defendants, in consideration of which they contracted to pay him a royalty on all the ore shipped from their mines in the vicinity during a term of 20 years, the right to which, however, plaintiff should forfeit if he voluntarily quit defendants’ employment during such term. Helh, that it was an implied condition of such contract that defendants should continue to operate their mines with reasonable diligence during the term, and that their ceasing to operate the same was a breach of such condition, for which plaintiff was entitled to recover damages.</p> <p>7. Same—Forfeiture for Nonpayment—Cost of Property to be Repaid on Reconveyance.</p> <p>In case of failure by the defendants to pay royalties for 90 days after written demand, the plaintiff had the right to call for a reconveyance of the mine, which he had conveyed to them, upon repaying the cost price. The money consideration named in the agreement was $1, but the real cost to the defendants was $3,500, made up of incumbrances on the property and obligations of the plaintiff, which they took care of for him at the time. Held, that the tender of $1 was insufficient, and that the plaintiff must repay the $3,500.</p> <p>B. Same—Royalty per Ton—Dockage or Deduction for Inferior Quality</p> <p>The defendants, having stipulated to pay a royalty of $1 per ton on ore mined and shipped, had no authority to reduce this amount on account of the inferior quality of the ore, the royalty being measured by the quantity, and not by the quality;, nor, although the royalty was, no doubt, to be calculated on refined or cleaned ore, had they the right to make a deduction or dockage on the quantity, provided the ore shipped had been treated to the usual process of cleaning.</p>

<p>1. Vendor and Purchaser—Bona Fide Purchaser—Valuable Consideration.</p> <p>To constitute one a bona fide purchaser of real estate, entitled to protection in his legal title as against the equitable owner, the payment of a valuable consideration is essential; and a consideration which, although monetary, is merely nominal, when compared with the known value of the property, is not a valuable one, such as to give the grantee-standing in a court of equity as a bona fide purchaser, but, on the contrary, raises an irresistible inference of bad faith.</p> <p>2. Parties—Suit to Cancel Deed—Necessity of Joining Grantor.</p> <p>The grantor in a deed is not an indispensable party to a suit by a third person, claiming to be the equitable owner, to set the deed aside, and to establish complainant’s title to the property, where it is admitted in the pleadings of both parties that such deed conveyed to the defendant all of the grantor’s right, title, and interest.</p> <p>8. Same—Equity—Dispensing with Parties.</p> <p>A federal court of equity will not refuse to grant relief because of the nonjoinder as a defendant of a person who is out of the jurisdiction, where it appears that, while a proper party, he has no interest in the subject-matter of the controversy which will be affected by a decree between the parties.</p>

<p>1. Bankruptcy—Liability on Lease—Subsequent Rent.</p> <p>Where a tenant is adjudged a bankrupt, such adjudication terminates the existing relation of landlord and tenant, and the landlord is not entitled to prove, as against the bankrupt’s estate, a claim for rent accruing after the adjudication, though the tenant had executed notes therefor.</p> <p>». Same.</p> <p>Semble, that the rule might be different where the landlord becomes bankrupt.</p>

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

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

<p>1. Taxation—Franchises.</p> <p>Const. Cal. art. 13, § 1, declares that all property in the state not exempt under the laws of the United States shall be taxed in proportion to its value, and that the word “property,” as there used, shall include, inter alia, franchises. Pol. Code Cal. § 3617, declares that the term “property” shall include moneys, credits, bonds, stocks, franchises, and all other matters and things capable of private ownership. Held, that while the franchise of a foreign banking corporation, engaged in business in California, “to be” a corporation, was not taxable as a franchise, under such statutes,, the corporation’s franchise “to do business” in such state was taxable.</p> <p>9. Same.</p> <p>A foreign banking corporation’s right to do business in the state of California is taxable, under Const, art. 12, §' 15, declaring that no corporation organized without the limits of the state shall be allowed to transact business within the state on more favorable conditions than are prescribed by law to similar corporations organized under the laws of the state.</p> <p>8. Same—Branch Banks—Credits—Location.</p> <p>A credit found on the books of a branch of a foreign banking company located in San Francisco, which was created by drawing drafts on the bank’s main office, in London,—the drawer residing in New York,—was not a credit originating in the state of California, and was therefore not taxable to complainant in that state.</p> <p>4. Same.</p> <p>Where complainant maintained branch banks in San Francisco, Portland, Or., and Tacoma, Wash., credits on the books of its San Francisco office, consisting of sums debited to its branches in Portland and Tacoma, representing money drawn by such branch banks from the San Francisco branch, were credits arising in the state of California, and taxable therein.</p>

<p>In Admiralty. Suit against the steamship Northern Queen to recover damages for collision, and petition by the owners for a limitation of liability.</p>

<p>L Res Jodicata—Matters Concluded—Title of Plaintiff to Subject-Matter of Suit.</p> <p>A decree dismissing a bill for tbe redemption of a pledge of stock of which complainant alleged his equitable ownership, through an assignment made by the pledgor, based on a finding that such assignment conveyed to complainant no right, title or interest in the stock, is conclusive between the parties against any claim of title which complainant then held, and he cannot maintain a second suit against the pledgee for the same relief by merely alleging a different source of title.</p>

<p>In Equity. On demurrer to bill.</p> <p>The complainant, a citizen of the state of Missouri, as treasurer of the Searcy & Des Are Railroad Company, a corporation created by and existing under the laws of the state of Arkansas, filed this bill against E. A. Robbins and the People’s Bank of Searcy, Ark., both citizens of the state of Arkansas, alleging that prior to April 8, 1902, the defendant Robbins was the treasurer of the railroad company and as such had on that day in his hands a sum of money exceeding $7,000, which was on deposit with the defendant bank, which had full knowledge of the capacity in which Robbins held the money, and that it was the money of the railroad company; that on the 8th day of April, 1902, complainant was duly elected treasurer of the railroad company to succeed Robbins, and duly qualified as such; that he made a demand upon both the defendants for an accounting and a delivery to him of the funds of the company, which was refused; that the bank, in collusion with Robbins, has fraudulently permitted him to withdraw the funds from the credit of Robbins as treasurer of the railroad company, and to deposit them with the bank, in some other way to complainant unknown, with the fraudulent intent of assisting said Robbins in appropriating said funds to his own use. By resolution of the board of directors of the railroad company, duly passed, complainant was directed and authorized to institute this action. The prayer of the bill is that the defendants be required to render an account of the funds to which complainant is entitled as such treasurer, and for a decree against them for the amount. To this bill, defendants demur.</p>

<p>1. Cloud on Title—Removal—Action in Equity—Possession of Plaintiff.</p> <p>A suit in equity may be maintained for tbe removal of a cloud on title under tbe Missouri statutes, though plaintiff is not in possession.</p> <p>2. United States Courts—Jurisdiction—Amount in Controversy.</p> <p>Where complainant sued to set aside special tax bills assessed against certain lots in a city, of which he owned the fee, and he was the equitable owner of other lots assessed, and the tax bills on all the lots amounted to over $2,000, the federal court had jurisdiction.</p> <p>8. Municipal Corporations—Special Taxes—Tax Bills—Registration by City Clerk.</p> <p>The failure of the city clerk of a city to register tax bills for special assessments, as required by the Missouri statutes, is not a sufficient defense against the bills, the statute being directory merely.</p> <p>4. Same—Street Grading—Assessment.</p> <p>Where the evidence, in an action to restrain a special city assessment, showed that the grading, for which the city was not entitled to charge the abutting property, was not included, at least to any great extent, In the cost of paving, and no extra charge or expense for the grading was made, the fact that some grading was done was immaterial.</p> <p>5. Same—City Improvements—Protest—Statutes—Constitution ality-^Re-</p> <p>view.</p> <p>Where a nonresident property owner did not appear after notice and attempt to protest against a city street improvement, he cannot, in an action to restrain enforcement of tax bills against his property, obtain a review of the constitutionality of Laws Mo. 1895, § 95, limiting the right to protest to resident owners.</p> <p>6. Contract for Improvement—Acts of Aldermen—Review.</p> <p>The board of aldermen of a city, in procuring the improvement of streets and letting the contract therefor, do not act in a legislative capacity, but act in an administrative or business capacity, and hence their acts are reviewable on the ground of fraud or corruption.</p> <p>7. Validity of Contract—Limitation as to Material.</p> <p>Where a contract for the paving of a street with asphalt limited the kind of asphalt to be used to Trinidad asphalt, such fact, and the further fact that such asphalt was controlled by a single corporation, did not affect the validity of the contract.</p> <p>8. Same—Evidence.</p> <p>Evidence in an action to vacate special tax bills for municipal improvements reviewed, and held not sufficient to show corruption on the part of the city council.</p> <p>9. Same—Necessity of Improvement—Review.</p> <p>Where one of the streets of a city, located in an extreme and thinly populated portion, had been well paved with macadam in 1892, and at the time the street was ordered paved with asphalt by the city council, in 1897, the macadam was not badly worn, and the street was in good condition, the subsequent improvement was unnecessary, and special assessments therefor void.</p>

<p>1. Contract—Money—Installments.</p> <p>Where the payment of installments of money is provided for in an agreement, suit may be brought for them as they accrue during the currency of the agreement.</p> <p>3. Contract of Sale—Right to Terminate.</p> <p>O., in consideration of $193,000, agreed to convey to F. certain land, to transfer shares of stock in a company, and assign a mortgage of $340,-000 given by the company, an installment of $15,000 on the consideration to be paid when the deed was delivered and the stock transferred, and $500 a month thereafter to be paid for 10 years on account of interest on the balance of $178,000, F. having the right at any time within the 10 years to pay the $178,000, with interest, when all claim of C. should be relinquished, and it being provided that moneys received from sales or rents should be applied on the purchase price with a release of all claim by C. when the $178,000, with interest, was paid from any source. It was also provided that if F. had to foreclose the mortgage, and bought in the premises, he might execute a mortgage thereon to O. for the balance due, with interest, without personal liability, or end the matter by conveying the premises to C. There was a further provision that, if F. was in default for 30 days, C. could foreclose the mortgage, which was to be reassigned to him as collateral, or he might, on notice, sell it. Held, in an action for the monthly installments of interest, that the contract was not a terminable one, amounting to no more than an option, from which F. could retire at any time.</p>

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

<p>1. Corporations—Cancellation of Deed as Ultra Vires—Estoppel.</p> <p>Where a corporation sold and conveyed all its property to another corporation, in part consideration for which the latter assumed payment of the grantor’s debts, some of which it paid, while it renewed others, and paid the remainder of the consideration agreed upon, the grantor cannot maintain a suit in equity, after the lapse of five years, to set aside the conveyance as ultra vires, or on the ground of fraud, and recover the property, to the prejudice of third persons, who, without knowledge or notice of such claims, have acquired interests in or liens upon the property through the grantee.</p>

In Admiralty. Suit to recover for injury to steamer and tow, caused by striking a bridge pier in course of construction by defendant.

<p>1. United States Courts—Removal of Cause—Petition—Time for Filing.</p> <p>24 Stat. 554, and 25 Stat. 435, regulating tbe removal of causes from state to federal courts, declares that a person may file the petition to remove in the state court at the time or at any time before the defendant is required by the laws of the state or rules of the state court to answer or plead to the declaration. Code Va. 1887, §§ 3260, 3284, provide that no plea in abatement can be filed after the defendant has demurred, pleaded in bar, or answered to the declaration or bill, nor after a decree nisi or conditional judgment has been entered at rules. Weld, that the removal statute required the petition to be filed at or before the time when the defendant is required to file a pleading of any character, and, where the petition was not filed until after a judgment nisi had been entered at rules for want of an appearance, it was too late.</p>

<p>1. Bankruptcy—Findings of Referee—Review. *</p> <p>The findings of fact of a referee in bankruptcy are not conclusive, and will be set aside where the court is of opinion that they are manifestly erroneous.</p> <p>2. Same—Exceptions.</p> <p>Where the specific question of the correctness of a referee’s findings is certified to the district court for decision on petition of a party, no formal exceptions to such findings are required to render them reviewable.</p> <p>8. Same—Discharge—Evidence to Defeat.</p> <p>Evidence considered, and held insufficient to sustain specifications of objection to the discharge of a bankrupt on the ground that he had made false oath with respect to a claim against him which he scheduled.</p> <p>4. Same—Assignment of Claim.</p> <p>The form by which a claim against a bankrupt was transferred is immaterial, and cannot affect the right of the transferee to prove the claim, where it is sufficient to estop the original holder from asserting a right to it.</p> <p>5. Same—Proof of Claim by Married Woman.</p> <p>The failure of a married woman to register a claim against her husband as her separate property under the law of Oregon does not affect her right to prove the same against his estate in bankruptcy.</p>

<p>1. Appeal—Reversal—Effect of Remand for New Trial.</p> <p>Where the opinion of the appellate court determined every issue upon which plaintiff based his right of recovery adversely to his contention, it cannot be inferred from the fact that a judgment against him was reversed because of errors on the trial, and the cause remanded for a new trial, that such court intended to hold that the evidence was sufficient to sustain a verdict in his favor.</p> <p>2. Negligence—Failure to Give Notice oe Firing Blast—Immateriality.</p> <p>A plaintiff who was injured by a rock thrown by a blast made by defendants after he had gone on hoard a boat lying at a nearby wharf, as a passenger, cannot recover for the injury on the sole ground that defendants were negligent in failing to give notice of the intended firing of the blast, where it appears from his own testimony that he heard blasting, and understood that it was being carried on, when he went on board, some half an hour or. more before the accident.</p>

<p>1. Aliens—Contract Labor Law — Advertisement Promising Employment.</p> <p>Defendant published in an English newspaper the following advertisement: “Wanted. First-class weavers, on fine combed work, in one of the most beautiful villages in Connecticut, U. S. A. First-class weavers can earn per week 35s. to £2. Families preferred. Reasonable rents in 6-room cottages. * * * None but first-class weavers and respectable people need apply.” Held, that such advertisement did not “promise employment,” within the meaning of the amendment of March 3, 1891, to the alien contract labor law, and would not support an action to recover the penalty imposed by such law for encouraging the immigration of aliens into the United States.</p>

<p>1. Bankruptcy—Involuntary Proceedings—Waiver of Objections to Jurisdiction.</p> <p>An alleged bankrupt, wbo files a motion to dismiss the petition against him, and appears in court to testify in support of allegations made therein, thereby waives any merely technical objection to the jurisdiction of the court over his person and estate.</p>

<p>1. Contracts—Construction—Stipulation por Loan op Articles por Use.</p> <p>Under a stipulation by the United States in a contract to lend the contractor certain articles for use in performing the contract, the same to be returned in good condition, or replaced if lost or damaged, the contractor cannot be required to replace articles because of the ordinary wear incident to the use contemplated, but only such as are damaged In exce.ss of such wear, since any other construction of the agreement would make it one of sale, and not of loan.</p>

<p>In Equity. Suit for infringement of trade-mark. On demurrer to bill.</p>

<p>Action at Law upon Promissory Note.</p>

<p>1. Removal oe Causes—Citizenship of Parties.</p> <p>Under Act Aug. 13, 1888 (1 Supp. Rev. St. U. S. p. 612, § 2), providing for tbe removal from state courts to federal courts of civil suits when the controversy is “wholly between citizens of different states, and which can be fully determined as between them,” a suit by a bank, for the purpose of determining to whom a deposit should be paid, against the administrator of the deceased depositor, a citizen of the state, who claims the deposit as a part of the estate of the deceased, and against a third person, a citizen of another state, who claims the deposit, is properly removed from the state court to the federal court, for the suit is wholly between citizens of different states, and can be fully determined as between them.</p> <p>2. Same—Transposing Parties.</p> <p>It is the duty of the court to transpose the parties by placing the administrator and third person on opposite sides, and thus retain jurisdiction.</p> <p>8. Same—Petition fob Removal—Joinder of Husband in Wife’s Petition.</p> <p>The failure of the husband of the third person to join in the petition for removal is immaterial.</p>

<p>1. Shipping—Limitation of Liability—Conditions Imposed fob Laches.</p> <p>A shipowner is not debarred from instituting proceedings in a court of admiralty for the limitation of his liability on account of an alleged maritime tort by the fact that he has permitted an action for damages for such tort to be prosecuted to judgment against him in a state court, which has been reversed on appeal, and the cause remanded for a new trial; but in such case his laches in invoking the admiralty jurisdiction warrants the court in requiring him, as a condition to the granting of the relief sought to pay the costs incurred by the plaintiff in the state court.</p>

On motion by defendant to set aside service of summons made in the supreme court of the state of New York, pursuant to section 432 of the New York Code, the defendant having removed the action to this court.

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

<p>1. Bankruptcy—Discharge—Specifications of Objection—Verification.</p> <p>Specifications of objection to the discharge of a bankrupt are pleadings, and should be verified as required by section ISc of the bankruptcy act.</p> <p>2. Same—Signatures by Counsel.</p> <p>If counsel sign and swear to them, the reason of such signature should be stated.</p> <p>3. Same—Exceptions—W aiver.</p> <p>Specifications of objection to the discharge of a bankrupt were signed by counsel, and not sworn to. No exceptions were taken to the signature or lack of affidavit until after the testimony had all been taken and argument commenced. Held, that the failure to object in proper time waived the defects.</p> <p>4. Same—Fraudulent Concealment of Assets.</p> <p>Evidence considered, and, in view of the burden of proof being upon the objecting creditors, held to justify the referee’s finding that there was no fraudulent concealment of assets by the bankrupt.</p>

<p>Prosecution for Sending Obscene Matter through the Mails.</p>

<p>In Admiralty. Suits against tug to recover for loss of a tow and her cargo.</p>

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

<p>Rule to take off nonsuit.</p>

<p>1. Appeal—Supersedeas—Order—Construction.</p> <p>Where an order granted an appeal from an order dissolving an injunction, and recited that supersedeas was granted to the order appealed from on the plaintiff entering into a bond with approved security, etc., on such bond having been duly given the supersedeas continued the injunction in force during appeal.</p>

<p>In Equity. Suit to enjoin the maintenance of a boom in a navigable river by defendant, and to recover damages.</p>

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

<p>In Admiralty. Action for breach of charter party.</p>

<p>1. United States Courts—Removal of Causes—Right of Interveners.</p> <p>Where, in an action to recover the proceeds of a check, petitioners attempted to intervene and claim the proceeds after the original defendant had lost the right to remove the cause to the federal courts by filing an answer and submitting itself to the jurisdiction of the state court, such interveners were not entitled to removal for the reason that they were not defendants, and, having connected themselves with the suit at the time it was not removable by the original defendant, they had no right of removal.</p> <p>2. Same—Decision of State Court—Effect on Federal Court.</p> <p>The circuit court of the United States has no power to review a decision of the state court denying intervention on a petition by the interveners to remove the cause; such decision, however erroneous, being binding on the federal court.</p>

<p>L Complaint—Sufficiency of Allegations.</p> <p>Where a mortgage gave the mortgagee the right of possession in case of default continuing for two months after demand, an allegation by the mortgagee in a complaint against a third person for injuring the property that demand had been made by plaintiff more than two months before the acts complained of, but without giving the date, is sufficient against a demurrer.</p> <p>2. Mortgage—Injury to Mortgaged Property—Right of Action by Mortgagee.</p> <p>Under the law of Connecticut, a mortgagee having the right of possession, although not in fact in possession, may maintain an action against a third person for an injury to or removal of a part of the mortgaged property, where it is alleged that the act of defendant deprived plaintiff of his sole security, and that the mortgagor is insolvent.</p> <p>8. Chattel Mortgage—Sufficiency of Description.</p> <p>A description of property in a chattel mortgage which is good as between the parties is prima facie sufficient as between the mortgagee and a trespasser who injures or converts the property after default in payment of the mortgage.</p>

<p>1. Corporations—Liability of Stockholders to Creditors—Unpaid Subscriptions.</p> <p>Const. Neb. art. lib, § 4, which provides that the original subscribers to the stock of a corporation shall be individually liable to creditors, after the property of the corporation shall have been exhausted, “to the extent of their unpaid subscriptions, and the liability for unpaid subscriptions shall follow the stock,” does not impose liability upon a holder of stock which was never subscribed for, but was delivered to him as a bonus for making a loan to the corporation, without any agreement or expectation that it should be paid for.</p>

<p>Motion to Modify Injunction Order.</p>

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

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

This cause comes here upon writ of error to review a judgment of the circuit court, Eastern district of New York, upon a verdict in favor of defendant in error, who was plaintiff below. The action was for personal injuries sustained by plaintiff while employed as a postal clerk in a car which was being transferred in Philadelphia from a train which had arrived from Washington to a train which was about to leave for Jersey City.

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

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

<p>Petition to Review an Order of the District Court of the United States for the Northern District of Ohio.</p>

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

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

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

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

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

<p>Petition to Review Proceedings in the District Court of the United States for the Northern District of Georgia.</p>

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

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

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

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

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

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

<p>In Error to the District Court of the United States for the District of Colorado. Earl M. Cranston and Ernest Knaebel for the United States.</p>

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

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