Volume 118 — Federal Reporter

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

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

The defendant in error was the plaintiff below, and recovered judgment upon a verdict against Chicago Terminal Transfer Railroad Company, plaintiff in error and defendant below (hereinafter mentioned as the defendant), in an action founded upon the alleged negligence of the defendant in switching operations, Whereby the decedent, Leonard Vanderhere, received injuries which caused his death.

This is an action for damages brought by Libbie Barnhill, L. Howard Barnhill, and William P. Barnhill against L. T. Morgan. The first plaintiff is the widow, and the other two plaintiffs are the minor children, of Charles Barnhill. It is alleged in the petition that in December, 1900, the defendant, L. T. Morgan, without just cause or provocation, and with malice aforethought, killed Charles Barnhill by shooting him with a pistol.

<p>1. Railroad Mortgages—Foreclosure—Decree—Collateral Attack.</p> <p>Questions relating to tie validity of a decree directing foreclosure of a railroad mortgage cannot be raised by objections to the confirmation of the sale.</p> <p>2. Same.</p> <p>Where a railroad stockholder objected to confirmation of the sale of the road under foreclosure on the ground that the purchaser bought for a trust company holding second mortgage bonds, instead of for another company which had formed a reorganization agreement recognizing the stockholders, but failed to show that that fact resulted in less being obtained for the property at the sale, and did not show the value of the property, or that less than the full value was bid, or that after payment of the first mortgage any surplus would be left for the second mortgage bondholders or other creditors or stockholders, or that he ever accepted the plan alleged, his objections were untenable.</p> <p>¶ 1. See Mortgages, vol. 35, Cent. Dig. §§? 1470, 1533.</p>

<p>1. Bill of Review—Limitations.</p> <p>A bill of review for error of law apparent on the face of the record must he brought within the time limited, by statute for taking an appeal from the decree sought to be reviewed.</p> <p>9. Same—Certification of Jurisdictional Question.</p> <p>Where no certificate of a jurisdictional question is certified by the circuit court during the term at which the decree is entered, as required</p> <p>¶ 1. See Equity, vol. 19, Cent. Dig. §§ 1103, 1104. by Judiciary Act March 3, 1891, § 5, the court has no jurisdiction to subsequently make the certificate.</p> <p>8. Same—Reservation in Decree.</p> <p>A reservation, in a decree foreclosing a railroad mortgage, that all equities and rights not specifically adjudged, including the discharge of a receiver and passing of his accounts, and all other questions of every kind and nature, not disposed of, are reserved for future adjudication, and reserving the right to make such further order at the foot of the decree as may seem just and proper, retaining jurisdiction for the purpose of enforcing all the provisions of the decree, did not reserve to the court the right to grant a certificate of a jurisdictional question after the term, so as to authorize an appeal under Judiciary Act March 3, 1891, § 11.</p> <p>4. Appeal in Error—Frivolous Reversal.</p> <p>Where a bill of review showed on its face that the circuit court lacked the power to hear it, a reversal of the decree dismissing the bill for the purpose of having affidavits of the defendants, erroneously omitted from the demurrers to the bill, attached, would be frivolous.</p>

This action was brought by Joseph W. Park, a citizen of Alabama, against J. W. Taylor, a citizen of Mississippi, for $50,000 damages." Plaintiff alleged that the defendant, with force and arms, assaulted him and arrested and restrained him of his liberty without any lawful authority and without probable cause. The defendant pleaded not guilty.

<p>1. Patents—Infringement—Towing Machine.</p> <p>The Shaw & Spiegle patent, No. 383,917, for a towing machine, which describes a combination with a cable drum of an engine, the shaft of which is geared to said drum to balance the load on the cable, and a pressure-regulating valve located in the steam passage to the engine cylinder and operatively connected with the shaft of the. drum, is limited by the prior art to the specific means described and claimed, among which is the valve technically known in mechanics as a “pressure-regulating valve,” and it is not infringed by a machine in which such valve is not used.</p>

<p>1. Patents—Invention—Door Bells.</p> <p>Tbe Rockwell patent, No. 471,983, for a bell mechanism, is void for lack of invention, in view of the state of the prior art.</p>

<p>In Equity. On argument of plea.</p>

<p>On Exceptions to Master’s Report on Re-Reference. See 107 Fed. 952.</p>

<p>In Equity. Suits for infringement of patents. On demurrers to bills.</p>

In Equity. Suit for infringement of letters patent Nos. 308,981 and 308,982 for machines for quilting fabrics, granted December 9, 1884, ■ the former to Frank E. Palmer, and the latter to William H. Palmer, Jr. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 626,212, for a food chopper, granted May 30, 1899, to Devi T. Snow. On final hearing.</p>

On Plea to Jurisdiction after Removal from State Court. The plaintiffs, citizens of the state of Missouri, instituted suit in the circuit court of Jackson county, Mo., on a cause of action which arose in the state against the defendant as a common carrier. On petition of the defendant, alleging that it was a citizen of the state of Ohio, the cause was removed into this court.

<p>1. Corporations—Stockholders’ Meeting for ' Election of Directors— When will be Called by Court and Master in Chancery Appointed to Conduct It.</p> <p>Tie directors and officers of the corporation, for the purpose of preventing a stockholders’ meeting for the election of directors for the corporation at the time appointed by law, and of perpetuating themselves in office, intentionally refused to give the notice of such meeting required by law, and repealed and enacted by-laws to aid them in their illegal purpose, and availed themselves of an injunction, based on their own illegal action, enjoining the holding of such meeting or any substitute therefor. Thereupon the stockholders, who were the real defendants in the original bill, filed a cross-bill praying for a modification of the injunction, so as to permit, upon due notice, the holding of a stockholders’ meeting for the' election of directors at a time to be fixed by the court, and for the appointment of a master in chancery to take the charge,, control, and direction of such meeting. It clearly appeared that the attitude of the directors and officers of the corporation toward the stockholders who desired to displace them was such as to preclude the possibility of the holding of an election for directors under their authority and control, which had been enlarged and extended by by-laws recently enacted for that purpose, which would be conducted in a fair, orderly, and legal manner. Held, that the injunction issued on the original bill should be modified, so as to admit, upon due notice, of the holding of the stockholders’ meeting for the election of directors at a time to be appointed by the court, and that such meeting and election should be held under the supervision and control of the master in chancery appointed by the court for that purpose.</p>

<p>1. BANKR UPTCY—Cl,AIMS—REFERENCE—DECISION— REVIEW.</p> <p>Where a claim in bankruptcy is referred to a referee, ordinarily his finding will be accepted, as he had opportunity of hearing the witnesses; but, where the special attention of the court is asked by reason of certain testimony which it is claimed must have been overlooked by the referee, his decision would be reviewed.</p> <p>¶ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>2. Same—Evidence—Sufficiency.</p> <p>Evidence in proceedings to establish claim against a bankrupt’s estate reviewed, and held that an allowance thereof was erroneous in view of the uncertainty of the evidence presented by claimant, and particularly because alterations in his books introduced to establish claim.</p>

<p>1, Charter Party—Lay Days on Lumber Cargo—Rules of Maritime Association of the Port of New York.</p> <p>A charter for a vessel to' carry a cargo of lumber from Norfolk to New York fixed the rate of freight for rough lumber, and provided that “if any dressed lumber shipped one-fifth off as customary.” It further provided that the lay days for discharging should be according to the rules of the maritime association of the port of New York. Rule 5 of such rules allows one lay day for each 25,000 feet of lumber. The cargo brought consisted in part of dressed lumber. Held that, in computing the lay days for discharging under the rule, a reduction of one-fifth should be made from the measurement of the dressed lumber, thus reducing it to its equivalent in rough lumber, measured by the freight paid, and presumably in bulk, no custom being shown that the reduction on dressed lumber was made in the rate rather than the quantity.</p> <p>2. Same—Demurrage.</p> <p>Under a charter fixing the rate of demurrage to be paid by the charterer at “customary” dollars per day, the rate recoverable for delay in discharging in New York is not governed by the rules of the maritime association of the port, in the absence of proof that the rate thereby fixed is the customary rate.</p> <p>¶ 2. Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.</p>

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

<p>1. Shipping—Damage to Cahgo op Wheat— Seaworthiness with Respect to Hatch Coverings.</p> <p>A steamer cannot be held liable for damage to a cargo of wheat from water, under the Harter act, on the ground of failure to use due diligence to make her seaworthy at the commencement of the voyage, by reason of the insufficiency of her hatch coverings, where the evidence showed that she was nearly new, that the wooden covers fitted closely, and were covered with two cotton duck covers, nearly new, and of better than the usual quality, properly secured, making a covering that is usually considered sufficient, and which was specifically approved by the underwriters’ surveyors, under whose direction the loading was done as provided by the charter; it being further shown that, two days after she left Galveston with her cargo, she was caught in the storm which wrecked that city, and for nearly three days was unable to make headway, during which time the seas breaking over her tore some of the hatch covers loose, and she suffered injuries, by straining and otherwise, which it cost $14,000 to repair. Under such evidence the damage must be attributed to perils of the sea.</p> <p>iíL Same—Sea Perils—Evidence.</p> <p>The fact that one vessel passed through a storm without injury to her cargo is not evidence of much weight on the question whether another, sailing two days after her, was subjected by such storm to unusual sea perils.</p> <p>¶ 1. Loss by perils of tbe sea, see note to The Dunbritton, 19 C. C. A. 465.</p>

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

<p>1. Master and Servant—Railroad Relief Department—Validity of Con; tracts.</p> <p>A contract between a railroad company and its employés wbo voluntarily become members of its “Relief Department” that, in case of the illness or injury of an employé through the negligence of the company or otherwise, he may elect to receive the benefits provided by the relief department or to prosecute such claim as he may have at law against the company, and that his election to receive benefits shall operate as a release of his claim for damages, is not invalid as contrary to public policy.</p> <p>8. Same—Missouri Statute.</p> <p>Nor is such a contract affected by Rev. St. Mo. 1899, § 2876, which declares void any contract “made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any agent or servant, limiting the liability of such railroad corporation for damages,” since it does not limit the liability of the-company, but enlarges it, by giving the employé the right to receive benefits from a fund to which the company contributes in cases where it would not otherwise be liable, while preserving to him his full right to prosecute any claim for damages on account of an injury if he so elects, after the injury has been sustained and he has had ample opportunity for counsel and advice.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. § 167.</p>

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

<p>1, Public Lands—Soldier’s Additional Homestead—Nature of Grant.</p> <p>An application for the entry of a soldier’s additional homestead, under Rev. St. § 2306, is not made under the homestead laws, but such grant is in the nature of a bounty to the soldier.</p> <p>2. Presenting False Claim Against United States —Acts Constituting Offense</p> <p>Under Act July 1, 1890 (26 Stat. 209), which authorizes any officer authorized to administer oaths for general purposes in the state, city, or county where he resides to administer oaths to all affidavits and declarations to be made or used in any pension or bounty case, a notary public having authority to administer oaths under the laws of the state may take affidavits to be used in support of an application for the entry of a soldier’s additional homestead, and the presentation of false proofs and affidavits, purporting to have been sworn to before a notary in support of such an application, if done willfully and fraudulently, constitutes the offense of presenting false evidence in support of a claim against the United States, within Rev. St. § 5438.</p>

<p>1, Bankruptcy—Involuntary Petition—Verification.</p> <p>Bankr. Act 1898 does not require a petition in involuntary bankruptcy to be verified by tbe. creditor personally, but sucb verification may be made by his attorney, who has knowledge of the facts; and no other evidence of the attorney’s authority need appear than the fact that he has been admitted to practice in the circuit or district court, as required by general order No. 4.</p> <p>2. Same—Procedure—-Objection to Verification of Petition.</p> <p>Where the verification to a petition in involuntary bankruptcy by an attorney at law or agent is good upon its face, the objection that it was in fact without authority must be made before answering to the merits; otherwise it is waived.</p> <p>8. Same—Petitioning Creditor—Qualification.</p> <p>A creditor may be a petitioner in bankruptcy, notwithstanding the receipt of a preference which he has not surrendered.</p> <p>¶ 3. See Bankruptcy, vol. 6, Cent. Dig. §§ 99, 100, 103.</p>

<p>1. Unfair Competition—Right to Relief in Equity—Fraud of Complainant.</p> <p>The use by the manufacturer of an article, for several'years after a patent therefor had expired, of advertising circulars containing the word “patented,” or statements clearly implying that it was protected by a patent, which circulars were inclosed in the packages in which the article was sold, is such a fraud as will preclude relief in equity against unfair competition, although no such statements were made in connection with complainant’s trade-mark, or on the packages themselves; it being impossible for the court to determine to what extent the value of complainant’s business, which it is asked to protect, is due to such fraudulent action.</p> <p>¶ h Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1. Contracts—Assignment—Breach—Pleading.</p> <p>A'complaint, in an action for breach of contract, alleging that the contract between defendant and plaintiff’s assignor was duly assigned and transferred to the plaintiff, sufficiently alleges a transfer of the assignor’s right of action to recover for breach of the contract.</p> <p>¶ 1. See Assignments, vol. 4, Cent. Dig. § 221.</p>

In Bankruptcy. On review of order entered by the referee vacating a sale made by the trustee at public auction of the bankrupt’s stock of goods.

<p>1. Shipping—Nondelivery op Cargo in Condition and Quantity Shipped.</p> <p>Evidence considered, and held to show that damage to cargo during a voyage resulted from sea perils, and riot from any negligence for which the ship was liable under the bills of lading; also that it failed to sustain libelant's allegation that the full quantity received on board was not delivered.</p> <p>¶ 1, Loss by perils of the sea, see note to The Dunbritton, 19 C. C. A. 465.</p>

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

<p>Í. Admiralty—Jurisdiction to Award Costs—Dismissal of Libel in Rem.</p> <p>Where a court of admiralty has jurisdiction of the subject-matter and the parties in a suit in rem, the fact that it dismisses the libel on the ground that no maritime lien arose under the facts shown does not affect its power to award costs against the libelant.</p> <p>¶ 1. See Admiralty, vol. 1, Cent. Dig. § 807.</p>

This is a bill filed by the stock yards company against the railroad company seeking a mandatory injunction requiring the railroad company to receive, transfer, transport, and deliver shipments of live stock tendered to it outside the state of Kentucky, consigned or tendered to be consigned to any points of physical connection between its line and the line of the Southern Railway Company in Kentucky, and designated for the Central Stock Yards or its station in Kentucky; and…

<p>In Error to the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>The plaintiff in error brought an action to recover damages against the defendants in error under the act of congress known as the “Sherman AntiTrust Act,” of July 2, 1890 [U. S. Comp. St. 1901, p. 3200], and alleged in his complaint, as his first cause of action: That for more than 10 years he had been a dealer in Washington red-cedar shingles at the city of Tacoma in the state of Washington, conducting a general business in such shingles, purchasing them of the various manufacturers thereof within the state of Washington, and selling them to purchasers in other states of the United States and in certain foreign countries. That his business was valuable; and that he was solely dependent upon it for his livelihood, and that he had acquired a wide clientage, and had transacted a business amounting to $100,000 a year, and had derived an annual profit therefrom of $3,000; that the said Washington red-cedar shingle is solely manufactured in the state of Washington, and has become an article of prime necessity and indispensable use to the people in the various states and countries named; and alleged that, during the first 10 months of the year 1899, 4,000,000,000 shingles were manufactured, of which 3,300,500,000 were manufactured for the purpose of selling and delivering to purchasers outside the state of Washington, and were so sold and delivered. That the defendant the Washington Eed-Cedar Shingle Manufacturers’ Association was a voluntary association of the various manufacturers and dealers in said shingles in the state of Washington, comprising a total of 108; that the association has a constitution and by-laws; that membership is secured by paying a certain initiation fee graded according to the number and character of shingle machines in use by the applicant for membership; that its officers are president, vice president, secretary, treasurer, and a central committee; that the defendants specifically named in the complaint are respectively such officers; that the powers of the committee were to hold meetings “and issue, from time to time, a minimum price below which all members agree not to sell shingles to dealers or wholesalers,” “to establish a system of prices at which shingles must be sold to retail dealers,” etc., “to order the closing down of all mills, and to take other necessary steps to curtail the output of Washington red-cedar shingles, when in their judgment the supply should exceed the demand.” For a second cause of action, the plaintiff in error alleged, in addition to the facts above set forth, that on or about August 15, 1899, the central committee adopted a schedule of prices for shingles, whereby the members of said association were required to and bound themselves to sell at the price so fixed, to wit: Extra A, $1.35 per 1,000, Clears, $1.50 per 1,000, which price the plaintiff alleged was above the market price: the market price then being Extra A, $1.20 per 1,000, and Clears, $1.35 per 1,000. That by reason of the said increase in prices the plaintiff was unable to carry on his business and supply the natural and ordinary demand for such shingles, or to purchase shingles at any other than the price so fixed, and he was injured thereby in his business in the sum of $1,200. For a third cause of action, the plaintiff, in addition to the facts above alleged, set forth that on November U, 1899, for the purpose of further increasing the price of said shingles, the association ordered its mills to close down for the period of 60 days, which order was obeyed, whereby the trade in shingles was interrupted, and he was unable to purchase shingles with which to fill his orders, to his damage in the sum of $1,000. For a fourth cause of action, in addition to the facts already set forth, the plaintiff alleged that the president, vice president, treasurer, and secretary, together with the central committee, for the purpose of destroying the plaintiff’s business, published resolutions adopted at a meeting of the central committee, charging the plaintiff with endeavoring to injure the market for Washington red-cedar shingles, and with having no money invested in his business, and as being without credit and irresponsible, and not an honorable and legitimate dealer in such shingles, and that for the purpose of Inducing all wholesale and retail dealers in shingles in the states and foreign countries aforesaid to refuse to buy shingles of the plaintiff, and to induce the manufacturers of shingles to refuse to sell him shingles, they printed and circulated through the mails the said resolutions, and published them in newspapers. And the plaintiff in error set forth in the complaint the names of 253 persons to whom such circulars were sent. He alleged that the result of the conspiracy was to destroy his business, to his damage in the sum of $15,000. On February 2, 1900, the defendants in the action, by their attorneys, filed a general appearance with the clerk on behalf of all the defendants named in the complaint. The defendants McNeeley and Beckman subsequently appeared separately, and demurred to each cause of action in the complaint for want of jurisdiction of the persons of the defendants, want of jurisdiction of the subject-matter, defect of parties defendant, and the insufficiency of the facts pleaded to constitute causes of action. Upon the last of these grounds of demurrer, the cause was presented in the circuit court before Hanford, District Judge, and the demurrer was sustained as to all except the fourth cause of action. 102 Fed. 594. Upon that cause the case afterward went to trial before Bellinger, District Judge, who directed the jury to return a verdict for the defendants in error upon the ground that the proofs did not sustain the causes of action, and that the combination described in the complaint is not one in restraint of interstate commerce, so as to give a right of action, under the provisions of the act of July 2, 1890 [U. S. Comp. St. 1901, p. 3200], to one who has been injured by a resolution, passed and circulated, denouncing him for cutting prices, and also upon the ground that in the opinion of the court the allegations in the fourth cause of action were insufficient to constitute a cause of action. 107 Fed. 210.</p>

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

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

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

<p>1. Circuit Courts of Appeals—Certifying Questions to Supreme Court.</p> <p>A circuit court of appeals has no authority to certify a case to the supreme court for decision, but only to certify questions or propositions of law concerning which it desires the instruction of the supreme court for its proper decision of the case.</p> <p>2. Same.</p> <p>A circuit court of appeals has no authority to certify a question or proposition of law to the supreme .court on motion of a party unless the judges consider such question doubtful, and can certify that they desire the instruction of the supreme court thereon, to enable them to determine it properly.</p>

<p>1. Patents—Invention—New Combination of Old Elements.-</p> <p>Where a new combination of old elements is such that it produces a new mode of operation and a beneficial result, there may be a patentable invention.</p> <p>2. Same—Infringement—Changing Form of Parts in Combination.</p> <p>One does not escape infringement by changing the form of the parts of a patented combination without essentially varying the principle or mode of operation pervading the original invention.</p> <p>8. Same—Equivalents.</p> <p>A patentee whose invention is meritorious, although he is not a pioneer, is entitled to a reasonable range of equivalents, measured by the advance he has made over older machines.</p> <p>4. Same—Grain Drills.</p> <p>The Hoyt patent, No. 446,230, for an improvement in grain drills consisting of spring pressure rods and means of attaching the same, by which pressure is applied to the shoes, and they are raised from the ground, by means of a lever, was not anticipated and is valid. Claims 1, 2, and 3 held infringed by a device designated as the “McSherry Old Structure”; also held infringed by the “McSherry New Structure,” made in accordance with the Swope and Moehring patent, No. 668,397.</p> <p>Thayer, Circuit Judge, dissenting as to the latter holding.</p>

<p>In Equity. Suit for infringement of letters patent No. 446,230, for a grain drill, granted to Will F. Hoyt February 10, 1891. On final hearing.</p>

<p>In Equity. Suit for infringement of letters patent No. 338,023, for an electric motor, issued to Edward M. Bentley March 16, 1886. On final hearing.</p>

<p>1. Patents—Infringement—Heel-Nailing Machine.</p> <p>The Raymond patent, No. 619,707, for a heel-nailing machine for attaching the heels on boots and shoes, construed, and held, not anticipated, and valid; also infringed as to claims 23, 24, 42, 43, and 44.</p>

<p>In Equity. Suit for infringement of letters patent No. 548,149, for a stereoscope, granted to Hawley C. White October 15, 1895. On final hearing.</p>

<p>In Equity. Suit for infringement of patent. On application to the court pending appeal to request the return of the record for further proceedings. See 116 Fed. 488.</p>

<p>1. Carriers—Right to Limit and Regulate Business.</p> <p>In the absence of charter or statutory provisions affecting its right, it is competent for a railroad company to determine for itself within what limits it will act as a common carrier, what business it will engage in, what means and methods of transportation it will employ, what goods it will carry, and between what points and under what circumstances and conditions it will receive the same, subject always to the limitation that it must act in good faith, reasonably, and not arbitrarily or capriciously, and without discrimination; doing for all under like circumstances what it does for any one.</p> <p>2. Same—Discrimination in Furnishing Cars—Different Modes of Loading.</p> <p>The refusal of a railroad company to furnish cars to the owner of a coal mine, to be loaded by wagons on its commercial tracks in its yards at a station at a time when the business of the road was unusually heavy, necessitating the constant use of such tracks, and its supply of cars was insufficient to handle its traffic, while at the same time it furnished cars to other mine owners on their own private tracks, to be loaded by tipple, was not unreasonable; nor did it constitute an unlawful preference or discrimination, either under the common law, or the statutes of Arkansas, which prohibit any preference or discrimination in the furnishing of cars.</p> <p>8. Same.</p> <p>The action of a railroad company in furnishing cars to be loaded by wagon on its tracks at a station with coal for shipment in one direction to points within the state, while it refused to furnish cars to be so-loaded for interstate shipments in the opposite direction, was not an unlawful discrimination against a shipper, where the order applied to all persons alike.</p> <p>L Same—Railroads—Obligation to Build Private Spur Tracks.</p> <p>A railroad company is under no legal obligation to construct a spur track from its line to a coal mine for the private benefit of the owner in shipping his product; nor can It be held liable in damages for unlawful discrimination because of its refusal to build such track, although it had permitted to be built, and assisted in building, similar tracks to other mines.</p> <p>¶ 4. See Carriers, vol. 9, Cent. Dig. §¶ 22, 30.</p>

<p>On Motion to Quash Return of Service on Summons.</p>

<p>In Equity. Suit for unfair competition. On motion for a preliminary injunction.</p>

The plaintiff in the two cases above brings suit as a corporation against the defendants to recover about the sum of $70,000, principal and interest, claimed to be due for cotton sold and delivered to the defendants. The plaintiff’s residence and place of business is in the city of Vicksburg, Miss., and the defendants are both corporations under the laws of North Carolina, and are engaged in the manufacture of cotton at Gastonia, in said state.

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

<p>1 Forests—Regulation—Rules—Delegation oe Legislative Authority.</p> <p>The act of congress approved June 4, 1897 (30 Stat. 35), authorized the secretary of the interior, in his superintendence of all forest reservations, to “make such rules and regulations and establish such service as will insure the objects of such reservation, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.” Held, that the authority given the secretary is not unconstitutional as a delegation of legislative authority.</p> <p>2. Same—Use oe Public Lands.</p> <p>The pasturing of sheep on the Stanislaus forest reservation having been forbidden by rule of the secretary of the interior under authority of Act June 4, 1897 (30 Stat. 35), user cannot give a right of pasturage there.</p> <p>8. Same—User.</p> <p>Inasmuch as laches cannot be invoked against the government, user of government lands for pasturage gives no right so to do.</p> <p>4. Same—Restraining Use—Bill—Allegations.</p> <p>A bill seeking to restrain defendants from pasturing sheep on a certain forest reservation alleged that defendants drove several bands of sheep upon the reservation. Eeld, that a demurrer on the ground that there was a misjoinder of defendants was of no merit, since, while it did not appear that the defendants committed several acts of trespass, it appeared there was a joint offense, and, even if the acts were several, they might all be included in one equitable action; the law and testimony applicable to each defendant being the same.</p> <p>5. Same—Allegations—Damages.</p> <p>Where a bill to restrain the pasturage of sheep on a certain forest reservation alleged that the grasses, herbage, and undergrowth were injured by the tramping, traveling, and driving of the sheep, the allegations as to damage were sufficient to warrant continuance of a restraining order pendente lite.</p> <p>¶ 1. See Constitutional Law, vol. 10, Cent Dig. § 96.</p>

Appeal by the importers from a decision of the Board of United States General Appraisers, which affirmed a decision of the surveyor of customs at the port of St. Eouis.

In Equity. On petition by receiver for an injunction restraining the prosecution of an action against him in a state court.

<p>1. Bankruptcy—Involuntary Proceedings—Jurisdiction must Affirmatively Appear.</p> <p>To confer jurisdiction to adjudge a person an involuntary bankrupt, the proof must affirmatively show that such person is not within one of the classes excepted by the bankruptcy act from such proceedings.</p> <p>2. Same—Wage-Earners. °</p> <p>A court of bankruptcy is without jurisdiction to adjudge a person an involuntary bankrupt who was both at the time of the filing of the petition and at the time of the alleged act of bankruptcy a wage-earner, working for a salary of less than $1,500 per year.</p>

In Bankruptcy. On certificate of referee with respect to application of Thomas Metcalf, asking that the trustee be ordered to take possession of certain personal property.

<p>1. Locomotive Fireman—Injurr from Mail Crane—Assumption of Risk.</p> <p>A locomotive fireman will be held to have assumed the risk from proximity to the track of a mail crane; he having been a fireman on the road for a year, during which there was no increase in the size of the engines, and having passed this place 83 times, and been over the other division 123 times, and the crane having been in position all that time, and at substantially' the same distance from the track as the other cranes on both divisions; and this though it was dark, and blowing hard and snowing, these circumstances merely requiring extra caution on his part.</p> <p>2. Same—Providing Safe Place to Work.</p> <p>A railroad company cannot be held to have failed to use due care to provide a locomotive fireman a reasonably safe place to work, by reason of a mail crane, when in position, being, at its nearest point, only 13Y2 inches from the side of the locomotive; this being the distance of the other cranes on this and other roads; the master car builder, who was familiar with the government regulations, and under whose supervision the catches on the mail cars were constructed, testifying that they could not be operated efficiently if placed at a greater distance; and there being no testimony of a competent witness to the contrary.</p> <p>8. Same.</p> <p>A railroad company owes no duty to a locomotive fireman, familiar with the road, to place lights on mail cranes.</p> <p>¶ 1. Assumption of risk incident to employment, see note to Railroad Co. v. Hennessey, 38 C. C. A. 314.</p>

This is an action by the defendant in error against the plaintiff in error to recover damages for the wrongful death of her intestate, in which she obtained judgment for the sum of $4,000. The accident by which the decedent lost his life happened on the morning of December 17, 1897, after daylight. It was a collision between two trains which were being switched in the yard of the plaintiff in error at Niles, Ohio, by two switching crews.

<p>L Foreign Corporations—Michigan Franchise Act—Validity on Contracts.</p> <p>The Michigan franchise tax act of 1891 (Comp. Laws Mich. 1897, § 8574) requires, inter alia, every foreign corporation “which shall hereafter be permitted to transact business in this state” to pay a franchise fee, and provides that all contracts made in the state “by any corporation which has not first complied with the provision of this act shall be wholly void.” As construed by the supreme court of the state, such statute has no application to a foreign corporation whose business relates entirely to interstate commerce, but imposes a tax upon the franchise or privilege of carrying on business within the state. Held, that as so construed the statute is within the power of the state and enforceable as applied to a foreign private business corporation which commences business in the state with the purpose of transacting or carrying It on, and if it does so without first paying the required tax the act renders all contracts made in the state in the conduct of such business void, but that it is not intended to apply to a single contract made by a foreign corporation which is not of a character to indicate a purpose to engage in business in the state.</p> <p>¶ 1. Taxation of foreign corporations, see note to McCanna & Fraser Co. v. Citizens' Trust & Surety Co., 24 C. C. A. 13.</p> <p>2. Same—Doing Business in State.</p> <p>The question whether a foreign corporation is engaged in "transacting” or “carrying on” business in Michigan, so as to be subject to the penalty imposed by the state statute for failure to pay a franchise tax, is one of fact, to be determined by the jury, unless the evidence is undisputed, and but one inference can be drawn from it.</p> <p>3. Action for Price of Machinery—Defense of Breach of Warranty— Estoppel.</p> <p>Plaintiff furnished and installed for defendant the machinery for a large sugar mill under a contract which warranted the capacity of the plant, and that the machinery and appliances should be first class and of the most approved designs. A portion of the purchase money was to be withheld for 60 days after the mill went into operation, during which time defendant was to have full opportunity for inspection. In fact, no demand for payment was made until it had been operated during a full season under plaintiff’s superintendence, and its capacity shown to meet the warranty. Defendant then presented a written list of alleged defects, which it afterward twice added to. Plaintiff remedied the most of the defects claimed, but a few it disputed, and on defendant’s refusal to pay the remainder of the contract price until they were remedied brought suit for the same. Held, that defendant was not entitled to prove as breaches of the contract other defects not complained of before suit, upon a claim that they were not known until afterward, there being no offer to show that they were latent, and could not have been discovered by reasonable diligence.</p> <p>¶ 2. Foreign corporations “doing business” in state, see note to Wagner v. J. & G. Meakin, 33 C. C. A. 585.</p>

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

<p>1. Unfair Competition—Evidence to Establish.</p> <p>The testimony of two witnesses employed by complainant that they went to the wholesale liquor store of defendant, where they were sold by a clerk, in bulk, what he represented to be complainant’s bitters, but which was in fact a spurious article made to imitate that of complainant in appearance, taste, and smell, and that they were also furnished by the clerk with empty bottles having thereon complainant’s label and trade-mark, to be used in retailing the bitters to customers, is sufficient to support a finding that defendant was engaged in unfair competition, although there was no proof that any customer had actually been deceived.</p> <p>2. Depositions—Mode of Taking.</p> <p>The fact that a witness on his second examination reads over a copy of his testimony given on a previous examination, and subscribes the same as his deposition, does not render such deposition inadmissible.</p> <p>8. Same—Objections.</p> <p>An objection to the admissibility of depositions on the ground of irregularity in taking should be taken by motion to suppress made before the hearing, and where not so taken, although the depositions had been open and on file for a month, an objection to their being read on the hearing was properly overruled.</p> <p>4. Evidence—Proof of Incorporation—Sufficiency.</p> <p>A certified copy of a complainant’s charter, supplemented by parol testimony, is sufficient to establish the fact of its being a corporation, as against a denial on information and belief.</p> <p>6. Unfair Competition—Defenses—Grounds for Relief.</p> <p>The preparation known as “Hostetter’s Bitters,” having been made, sold, and known to the public for many years, has acquired a commercial value which entitles the proprietors to the protection of the courts In its sale, and they will not enter upon the question of its merits, as a remedy for the ailments for which it is recommended, at the Instance of a defendant who has been engaged in selling a spurious article for the genuine.</p> <p>¶1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.</p> <p>¶ 3. See Depositions, vol. 16, Cent. Dig. § 315.</p>

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

<p>1. Resulting Trust—Payment of Consideration for Conveyance—Intended Trust in Favor of Third Parties.</p> <p>A woman purchased real estate, paying the purchase money, and stating to the vendor that she intended it for the benefit of her grandchildren, which was in fact her intention. The vendor, without her knowledge, had the deed made to her daughter, the mother of the grandchildren. On the advice of the vendor she accepted the deed. She took possession of the property, received the rents, and paid the taxes, and held such possession exclusively for a number of years prior to the bankruptcy of her daughter. Held, that a trust in her favor resulted from her payment of the purchase money, any presumption to the contrary from the fact that the grantee was her daughter being rebutted by the facts shown, and that neither the daughter nor her trustee took any interest which would defeat such resulting trust, whether or not a trust in favor of the grandchildren was enforceable.</p> <p>2. Same—Trust Raised on a Trust</p> <p>It being shown that it was the intention of the purchaser to retain in herself the possession and control of the property, her intention to devote the same entirely to the use and benefit of her grandchildren, even if It gave them an equity which they could enforce, would not defeat the trust resulting from her payment of the purchase money, since in such case one trust may be raised upon another.</p>

The following is the opinion of the district court, by LOWELL, District Judge: The bankrupts filed their voluntary petition November 26, 1901. They were insolvent since August 15th. The creditor who seeks to prove was ignorant of this fact. On August 15th the bankrupts were not indebted to the creditor. Subsequent to that time the sales by the creditor to the bankrupts and the payments by the bankrupts to the creditor were as follows: Sales to Bankrupts by Creditor.

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

Suit in Equity. Heard upon motion to remand the case to the state court in which it was commenced, and upon a demurrer to the bill of complaint. Motion denied, and demurrer sustained. The parties to this suit are all citizens of the state of Washington.

<p>1. Bankruptcy—Cross-Examination op Alleged Bankrupt.</p> <p>Where the act of bankruptcy charged is the preferential transfer of property while insolvent, the person against whom the petition has been filed is required by section 3 d of the bankruptcy act to appear at the hearing with his books, papers, and accounts, and submit to an examination; and upon his failure to do so the burden of proving his solvency is thrown upon him. He may therefore be called and cross-examined by creditors at such hearing.</p> <p>2. Same—Insolvency—Valuation op Credits.</p> <p>In determining the question of the insolvency of an alleged bankrupt, his credits must be estimated at their actual, and not their nominal, value, where their collectibility is doubtful.</p>

<p>1. Bankruptcy—Involuntary Petition—Signing and Verification by Attorney.</p> <p>The attorney of a creditor may sign his client’s name to a petition in involuntary bankruptcy, and may verify the same, where he is shown to have knowledge of the facts stated therein.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. §? 123.</p>

This case, with 24 others in favor of different plaintiffs, were submitted to the court at the same time, and are all disposed of in the following opinion. v

At Law. Actions of ejectment. These are three separate actions of ejectment for the recovery of Island No. 42 in the Missouri river, located in section 19, township 46, range 13 W. of the fifth P. M., containing 48.62 acres, according to the United States survey thereof made in 1820.

Cross-appeals by the importers and United' States from a decision of the board of United States general appraisers, which reversed, in part, the decision of the surveyor of customs at the port of Cincinnati. The following is the opinion of the board (Somerville, General Appraiser) : The importation in question consists of 38 casks of white cherries, imported August 1, 1898, from Bordeaux, France. The fruit was preserved in spirits, and contained over 10 per cent, of alcohol.

<p>1. Shipping—General and Particular Average—Proximate Cause op Loss.</p> <p>If a maritime loss follows as a natural or inevitable result of tbe original and involuntary cause of danger, then such original cause should be regarded as the proximate cause; but when a voluntary act intervenes, which in itself is a cause of loss, such act being substituted for the original danger of loss with a design of saving, the substituted act should be regarded as the proximate cause for general average purposes.</p> <p>3. Same—Voluntary Stranding.</p> <p>After a steamer had struck on a rock causing a serious leak forward and danger of her sinking, the master, in preference to running her upon the rocks in the vicinity, took her some distance, and beached her on what he supposed to be a sandy beach. Contrary to his expectation, the bottom was of soft mud, and the bow stuck in the mud and settled until the vessel sank, and the main deck, on which was the cargo, was submerged, and the cargo damaged. Had the bottom been of sand as supposed, so as to lift and sustain the bow, the vessel would probably have remained afloat, or at least with her deck above water. Held, that the loss was attributable to the attempted salvage as the proximate cause, and was a subject for general average.</p> <p>¶1. General average, see note to Pacific Mail S. S. Co. v. New York, H. & R. Min. Co., 20 C. C. A. 357.</p>

<p>1. Homestead—Change prom One Property to Another—Iowa Statute.</p> <p>The homestead statute of Iowa (Code, § 2981), as construed by its supreme court, permits a change of homesteads from one piece of property to another, and the new homestead, to the extent in value of the old, Is exempt from all debts which could not have been enforced against the old, although contracted before the change was made.</p> <p>S. Bankruptcy—Homestead Exemption—Proceeds of Former Homestead.</p> <p>A bankrupt had sold together, for the nominal price of $4,500, two pieces of realty, one of which was his homestead, which was valued in the sale at $900. He took a note for a part of the purchase money, which he later contracted to sell at a discount; his trustee ratifying such contract by collecting the agreed price therefor. Beld, that on the bankrupt’s application to have the proceeds of his homestead set apart to him therefrom as exempt, to be invested in a new homestead, as permitted by the law of the state, a proportionate part of the discount should be deducted from the price nominally received for the homestead.</p> <p>¶1. See Homestead, vol. 25, Cent. Dig. §§ 81, 112, 139.</p>

<p>1. Vendor and Purchaser—Contract within Statute of Frauds—Recover? of Consideration Paid.</p> <p>An oral contract for the sale of an interest in real property, though unenforceable, is not void, and the purchaser cannot recover a partial payment made thereon as earnest money if the vendor is ready, willing, and able to perform on his part</p>

<p>1. Equity Pleading—Amendment of Bill after Replication.</p> <p>An application for leave to amend a bill, after replication filed, must conform to the requirements of equity rule 29, and such leave will not be granted upon a motion not supported by affidavit as required by such rule. '</p> <p>In Equity. On motion for leave to amend bill.</p> <p>The bill in this cause was filed by the plaintiff to restrain C. A. Richardson & Co. and the Bradley Gin-Saw Filer Company from prosecuting a suit at law until the determination by this court of the question of the validity of certain letters patent. Original and amended answers have been filed by the defendants, as well as a replication by the plaintiff, and the testimony of a number of witnesses has been taken. The plaintiff, desiring to amend his bill, has filed the following motion, signed by counsel, but not verified by affidavit: “Now comes J. M. Beavers, complainant herein, and asks leave of the court to file the attached amendments to the bill of complaint; and he shows to the court that by reason of the amendment made to the original answer of the defendants, and the testimony of the defendants’ witnesses, already taken in this cause, the complainant is justly entitled to amend his bill of complaint, as proposed in the attached amendments, and he prays the court that he be allowed to file the same.” Leave has not been granted to file the amendments proposed, but the paper embodying the amendments bears the following file mark of the clerk: “Filed 7th day of October, 1902.”</p>

the Northern District of Illinois. This action is at law to enforce against the plaintiffs in error a statutory liability as stockholders in the Cherokee Brilliant Coal & Mining Company, a corporation of the state of Kansas. That corporation became indebted' to George Fowler in the year 1884, the indebtedness maturing January, 1886.

<p>1. Sales—Standard of Weight—Application.</p> <p>Where oats were sold without any agreement as to the standard of weight governing the number of pounds to the bushel, the standard in force at the place where the oats were purchased governs the contract.</p> <p>2. Same—Construction—Parol Evidence.</p> <p>Telegrams constituting a sale of a quantity of clipped oats purchased in Chicago for shipment to the buyer in Seattle recited that the oats would test from 36 to 37 pounds per bushel, and the telegram of acceptance accepted offer for white clipped oats, 36 pounds to bushel, Chicago Board grade. Defendant shipped a sufficient quantity of oats at 32 pounds per bushel to fulfill the contract, but plaintiff, claiming that the contract called for 36 pounds per bushel, sued for breach of contract, in which evidence was offered that, according to the customs of the Chicago market, 32 pounds was the standard bushel of oats, and that the “test 36 and 37 pounds per bushel” had reference solely to the quality of the oats. Held, that the contract did not show a meeting of minds on the standard by which the oats should be measured, and that the evidence of the Chicago custom was admissible.</p>

This is a case of collision between a steam tug and a schooner in Hampton. Roads in that part that lies between the Ripraps and the wharf at Old Point Comfort. The collision happened at 9 o’clock in the evening. The night was-clear, the wind blowing from the north and west. The collision occurred October 16, I960. The libel on behalf of the schooner was filed October 19, 1900. The depositions of the three seamen on the schooner were taken October 22, 1900.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>The appellant, the city of Centerville, is a municipal corporation of the •second class, organized and existing under the general laws of the state of Iowa. The appellee, the Fidelity Trust & Guaranty Company, is a New York corporation, and the Centerville Water Company is an Iowa corporation. On February 18, 1895, the city council of the city of Centerville passed Ordinance 207, which by its terms purported to authorize the Centerville Water Company to erect, operate, and maintain for the period of 25 years a system of waterworks in that city, to supply water to extinguish fires and for the use of the inhabitants, with the usual franchise as to the use of streets, alleys, roads, bridges, and public grounds. The water was to be pumped from an artesian well or wells, and many details respecting the construction and capacity of the waterworks were specified, and among them that there should be placed along the mains not less than 70 fire hydrants, located under direction of the council, and a steel water tower 60 feet high on a stone or brick foundation not less than 40 feet high, and a storage reservoir of a capacity of not less'than 2,000,000 gallons; the -work to be completed and ready to be tested by March 10, 1896. To enable the water company to obtain money to complete the works, the ordinance provided that the water company “may mortgage said entire waterworks plant, including the engine, pumphouse, and real estate connected therewith, all machinery, mains, and piping, and all other property forming said plant, including the rights, franchises, and rentals conferred by this ordinance, to secure a loan to said corporation not exceeding at any time the sum of forty-five thousand ($45,000) dollars; but the company shall not alienate said plant otherwise (except to the city of Centerville) within one year from the date of completion of said works.” The ordinance further provided that the city should rent from the water company for the term of 25 years not less than 70 fire hydrants at an annual rental of $3,900, “to be paid by the city treasurer on or before the first day of June and December of each year, ■direct to the bondholders or their agents, if said bonds are issued, so that said rental fund shall at no time be under the control of said water company. Out of said fund the interest shall be first paid, and the balance remaining shall be applied to taking up and paying off some of the bonds, to the amount of such balance, or, if none then be due, said balance shall •constitute a sinking fund for the extinguishment of said bonds. For all hydrants furnished in excess of seventy (70), said city shall pay a rental of fifty dollars ($50) each, in manner and at a time hereinbefore specified.” ********* *</p> <p>“Sec. 10. The city of Centerville shall annually during the term herein-before mentioned levy and collect a tax of five (5) mills on the assessed valuation, or so much thereof as shall be sufficient to pay the said hydrant rental accruing during said year. The said tax, when collected, shall be kept and known as a ‘Hydrant Fund,’ and shall be held inviolate for, and is hereby irrevocably pledged and appropriated for, the payment of such hydrant rental in the manner herein provided. Provision to meet the requirements of this section shall be made in the annual appropriation bill.</p> <p>“Sec. 11. The city of Centerville reserves the right to purchase the system of waterworks hereby authorized at any time within six months after their completion at the sum of fifty-five thousand ($55,000) dollars, and, should the city elect to purchase and tender to the company the said sum, less the amount of principal of any incumbrance thereon, the company shall forthwith convey to the city by good and sufficient deed of conveyance the said waterworks system, and all real and personal property required in connection therewith, subject, however, to any existing mortgage indebtedness and interest thereon. Said city shall covenant in any such conveyance to it to keep such waterworks system in good repair and efficient operating condition. In event of the purchase being made as aforesaid, the company may, at its option, to be then expressed, accept payment in money or in twenty (20) year 5 per cent, bonds of the city at their par value.”</p> <p>The said ordinance further, and among other things, provided for the submission of the question of the erection of such waterworks to the voters of said city for their approval or disapproval, at a general election to be held March 4, 1895; the following propositions to be votéd on: “Shall the Centerville Water Company be authorized to construct waterworks? Shall a tax of five (5) mills be annually levied and appropriated to the payment of hydrant rentals?” Due proclamation of said election was made, and said ordinance given wide publicity in said city; and at such election both of said propositions were approved and carried in the affirmative by a majority exceeding four-fifths of the voters.</p> <p>Soon after said election said city council passed Ordinance 208, which amended and changed Ordinance 207 in many particulars. It provided that the water tower should consist of a steel reservoir 100 feet high and 12 feet in diameter, on a stone or brick foundation, not less than 4 feet in the ground; also, that the storage reservoir should be of not less than 250,000 gallons; also, that the mortgage authorized should not exceed $50,000; also, that the city should pay the hydránt rentals directly to the trustee of the oondholders, if bonds should be issued; also, that the city’s option to purchase the waterworks should be exercised within 30 days after their completion, and be for the sum of $60,000: Said water company began the erection of said waterworks, and on August 1, 1895, issued and negotiated its bonds to the number of 100, in denomination of $500 each, payable to bearer at the office of the Fidelity Trust & Guaranty Company, in Buffalo, New York) or at the Seaboard National Bank, in New York City, at the option of the holder, with interest at 6 per cent, as per semiannual coupons attached; and to secure the payment of such bonds said water company on the same day executed to the complainant, the Fidelity Trust & Guaranty Company, as trustee, its mortgage deed, covering said waterworks and all property connected therewith, and all the rights and franchises of said water company, which mortgage was duly recorded. Said water company completed said waterworks, and the same were duly tested and accepted by said city council February 12, 1896. On February 18, 1896, said city council by ordinance exercised its option to purchase said waterworks plant, and authorized and directed the mayor and city clerk to obtain from said water company a deed of conveyance to said city of said waterworks, and all property connected therewith, and rights and privileges appurtenant thereto, subject to said mortgage deed of trust to complainant, with covenant on the part of the city to operate and maintain said waterworks system; but the city should not be made liable to pay said bonds of said water company, and on delivery of such deed said mayor and clerk were authorized and directed to pay said water company $10,000 in water bonds of said city, before authorized. Thereupon, on the same day, such deed from said water company to said city was executed and delivered in exchange for such water bonds, and said city then went into possession of said waterworks and property conveyed to it by said deed, and have since, until displaced by the receiver in this suit, maintained and operated the same. Said city has ever since levied and collected said five-mill tax, and prior to February, 1901, had received from that tax $17,577.39, and during the same time had paid over to the complainant as such trustee as hydrant rentals the sum of $12,720, of which sum $2,500 was applied by said trustee in paying the principal of 5 of the bonds secured by said trust mortgage, and $10,220 in the payment of interest coupons of said bonds; and said city had of the moneys so collected, in February, 1901, the sum of $4,800, and had expended incidentally the sum of $53.39. None of the interest coupons which fell due February 1, 1900, or at any time since, on the outstanding 95 bonds secured by said trust mortgage, have been paid; nor has any of 7 of such bonds, the principal of which came due on or at dates before August 1, 1900, been paid.</p> <p>In this suit, brought by said trustee against the Centerville Water Company and the city of Centerville for the foreclosure of said trust mortgage and other equitable relief, the defendant the Centerville Water Company answered, making no defense. The defendant city of Centerville by its answer claimed that the construction of the waterworks by the Centerville Water Company in accordance with the provisions of Ordinance 208 was never approved by the voters of said city at any election, and was unauthorized, and without any right or valid franchise; that the attempted purchase of the waterworks by the city, and its deed of conveyance from the water company, were unauthorized and void; that it incurred no legal obligation to pay hydrant rentals, and that the water company furnished no water for hydrants; and that it was under no obligation to pay over to complainant as hydrant rentals moneys which it had collected from said five-mill tax and still held. Upon final hearing decree was entered in favor of complainants substantially as prayed.</p>

<p>In Equity. Suit for infringement of patent. On exceptions to master’s report on re-reference.</p>

<p>1. Removal op Causes—Diversity of Citizenship—Improper Joinder of Parties.</p> <p>Tbe joinder of the lessor with the lessee of a railroad as defendants in an action for the death of an employé of the lessee, alleged to have been due to its negligence in operating the road, where the question of the lessor’s liability for such negligence is an open one, under the statutes and decisions of the state, cannot be held to have been solely for the purpose of defeating the lessee’s right of removal on the ground of diversity of citizenship.</p> <p>2. Same—Separable Controversy.</p> <p>An action against the lessor and lessee of a railroad, to recover for the death of an employé of the lessee alleged to have been due to its negligence in operating the road, does not involve a separable controversy which entitles the lessee to remove the cause on the ground of diversity of citizenship, where the plaintiff and lessor are citizens of the same state.</p> <p>¶ 2. Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, IS O. C. A. 86; Meeke v. Valley-town Mineral Co., 35 C. C. A. 155.</p>

<p>In Bankruptcy. On review of decision of referee in marshaling-assets between partnership and individual creditors.</p>

In Equity. On demurrer to bill. The bill, after jurisdictional allegations, proceeds as follows: Complainants say that the defendant the Union Savings Bank & Trust Company is a corporation under the laws of Ohio, domiciled at Cincinnati, and is likewise the executor of the last will and testament and trustee under the will of Elizabeth P. Patterson, deceased, who died in the city of Cincinnati January 25, 1899, testate, she at the time of her death being a citizen and…

<p>In Bankruptcy. On review of decision of trustee denying an application for an order requiring the trustee to pay taxes.</p>

<p>In Bankruptcy. On exceptions to report of referee disallowing claim of Charles J. Church to proceeds of sale of greenhouses.</p>

<p>In Bankruptcy.</p>

<p>1. Constitutional Law—Equal Protection of Laws—Building Association-Law of Georgia.</p> <p>The statute of Georgia relating to building and loan associations is not so clearly in violation of the constitutional provision prohibiting any state from denying to any person within its jurisdiction the equal protection of the laws, because of its permitting such associations to take interest which would render other contracts usurious, as to authorize a federal court to declare it invalid after it has been sustained by the supreme court of the state.</p>

<p>1. Removal op Causes—Alienage op Dependant—Necessity op Nonresidence.</p> <p>A suit by a citizen of the United States against a citizen of a foreign country residing in the state in which the suit is brought is not removable by the defendant, on the ground of his alienage, under the second clause of section 2 of the judiciary act of 1887 (24 Stat. 552), corrected in 1888 (25 Stat. 434), nonresidence being a prerequisite to the right of removal thereunder.</p> <p>At Daw. On motion to remand to state court.</p> <p>The plaintiff, J. A. Eddy, a citizen of Texas, acting for himself and as trustee for others, originally instituted a suit of trespass to try title in the district court of El Paso county, Tex., against the defendant, a citizen of Mexico, to recover certain real estate in the city of El Paso of the estimated value of $12,000. The defendant seasonably filed in the state court a petition and bond to remove the cause to this court. In the petition for removal it is alleged that the defendant is a citizen and subject of the republic of Mexico, but there is no allegation in respect of his residence. His counsel, however, admitted in open court that he was at the time of filing the original petition, and still remains, a resident of this state. The record was duly filed in this court, and plaintiff has submitted a motion to remand the cause, on the ground, among others, that the defendant is not entitled to remove the same to this court because he is a resident of Texas.</p>

<p>In Bankruptcy. On review of referee’s decision.</p>

<p>1. Bankruptcy—Proceedings for Appointment of Trustee—Objections to Proof of Claims.</p> <p>The proceedings for the appointment of a trustee in bankruptcy should not be so summary as to exclude consideration of all objections to the proof of claims for the purpose of qualifying the creditors to vote, but the referee should at least hear the objections sufficiently to determine whether they are made in good faith; and if so, and they appear to be well founded, the claims should not be allowed for voting purposes.</p>

<p>1. Building and Loan Associations—Insolvency Proceedings—Distribution oe Assets.</p> <p>Where the affairs of an insolvent building and loan association, having shareholders and assets in many different states, are being wound up by a court of equity of the state of its domicile, by whose laws its contracts and the rights of its shareholders are governed, such court should be regarded as the court of primary, jurisdiction; and courts in other states, whether state or federal, which have collected assets of the association by their receivers either in ancillary or original proceedings, in the exercise of a sound judicial discretion should remit the net amount of such collections remaining for distribution among the shareholders to thé domiciliary court, that the distribution may be equitably made between all the shareholders.</p>

<p>1. Life Insurance Policy—Excepted Risks—Self-Destruction, Sane or Insane.</p> <p>A provision of a life insurance policy that “self-destruction,, sane or insane,” is a risk not assumed, must be given effect in accordance with its plain meaning, and there can be no recovery under such policy where the insured took ,his own life other than accidentally, whatever may have been his mental condition.</p> <p>¶ 1. Suicide as defense to action on insurance policy, see notes to Insurance Co. v. Florida, 16 C. C. A. 623; Casualty Co. v. Egbert, 28 C. C. A. 284. See Insurance, vol. 28, Cent. Dig. §§ 1159, 1160.</p>

<p>■I. Sufficiency of Pleading—Effect of Waiver of Objection.</p> <p>Where an objection to an answer pleading the defense of res judicata was waived by plaintiff by failing to demur, and the only objection made to the evidence introduced in support of such defense was the general one that it was “incompetent, immaterial, and irrelevant,” it was error for the court, after the cause had been finally submitted and taken under advisement, to reject such evidence, and to determine the cause without passing upon such defense, on the ground that it was not sufficiently pleaded.</p> <p>2. Res Judicata—Sufficiency of Plea.</p> <p>The answer, in an action on municipal bonds, set up in bar a former judgment rendered in an action brought on coupons from the same bonds, which adjudged the bonds to be illegal and void. It alleged that the bonds and coupons were owned at that time by the present plaintiff, which delivered them to an agent, with instructions to collect the same; that they were assigned by such agent without consideration, and for the sole purpose of having suit brought thereon to a third person, in whose name the litigation was conducted; but that plaintiff remained at all times the actual owner thereof. Held, that such plea was sufficient notwithstanding the failure to expressly allege that the assignment was by the authority or with the consent of plaintiff, such fact being fairly inferable from the other facts pleaded.</p> <p>8. Proceedings in Error—Remand on Reversal—Issues not Determined Below.</p> <p>Where an issue was not determined by the trial court, which erroneously ruled that it was not within the pleadings, it will not be determined by the appellate court on a writ of error, but the cause will be remanded for a new trial.</p>

<p>1. Appeal—Questions Reviewable—Failure of Intervener to Join in Appeal.</p> <p>An appellate court, on affirmance of the decree appealed from as between the original parties, has no power to reverse it so far as it denied the relief prayed for by an intervener in his own right, where such intervener did not Join in the appeal.</p> <p>3. Telephones—Power to Grant Exclusive Franchise.</p> <p>Telephone companies, like telegraph companies, are important agencies in the transaction of interstate commerce, and neither a state nor an Indian nation has power to grant to one company an exclusive right to maintain telephone lines within its territory. Such a grant, being void ab initio, cannot be invoked to prevent the construction and maintenance of lines by other companies or persons, although they are not interstate, but merely local.</p> <p>8. Same—Indian Territory—Effect of Regulation by Congress.</p> <p>Congress having provided, by Act March 3, 1901 (31 Stat. 1083), for the granting of franchises for telephone lines in the Indian Territory, in the exercise of its power to regulate commerce among the states and with the Indian tribes, such legislation necessarily annulled any grants previously made by one of the Indian nations which conflict therewith.</p>

<p>1. Federal Courts—Judgment of State Court—Effect.</p> <p>In an action In a federal court sitting in another state the same effect will be given to a judgment in a suit in a state court as would be given to it by the courts of the state in which it was rendered.</p> <p>0. Same—Dismissal of Complaint—Effect.</p> <p>Code Civ. Proc. N. Y. § 1209, provides that a final judgment dismissing the complaint before or after trial does not prevent a new action for-the same cause, unless it expressly declares or it appears by the judgment roll that it is rendered on "the merits. Held, that where a complaint in an action by plaintiff, a foreign corporation, in a state court of New York, was dismissed, for failure of plaintiff to prove that it had received a certificate from the secretary of state authorizing it to do business in the state, such judgment was not on the merits, and was therefore no bar to a subsequent action by plaintiff in a federal court sitting in another state on the same cause of action.</p> <p>¶ 1. See Judgment, vol. 30, Cent. Dig. § 1507.</p>

<p>1. Banks—Lien on Stock—Rights ok Pledgee.</p> <p>The lien of a bank upon its stock, given by statute, for any indebtedness to it from the stockholder, is subject to the lien of a pledgee of such stock, where the indebtedness to the bank was contracted subsequent to the pledge and after the bank had notice of It.</p> <p>2. Same—Notice to President.</p> <p>The president of a bank, to whom a pledgee of stock exhibited the certificate held by him to ascertain with certainty that it had been regularly issued, stating the fact of the pledge, received such Information while acting in his official capacity, and the bank was thereby charged with notice of the pledge, so as to render its statutory lien on the stock for a loan subsequently made to the pledgor, although some two or three years afterwards, subject to the rights of the pledgee, whose debt had not been paid.</p> <p>¶ 1. Rights and liabilities of pledgees of corporate stock, see note to Frater V. Bank, 42 C. C. A. 135.</p>

<p>L Evidence—Statements op Party.</p> <p>In an action against a United States marshal and the surety on his bond for the false arrest and imprisonment of plaintiff, evidence of a conversation between the marshal and a third person in relation to the arrest, while plaintiff was still in custody, is admissible against defendants.</p> <p>2. False Imprisonment—Damages—Evidence.</p> <p>Upon the question of damages for the wrongful arrest of plaintiff, on a warrant for another person, it was competent for plaintiff to testify that before he was released, and while he was under bond to appear, a number of persons to whom he applied for employment asked if he had been released, and, being told that he had not, refused to employ him, and also that he suffered from nervous prostration immediately following his arrest.</p> <p>& Motion to Strike Out Testimony—Failure to Object to Admission.</p> <p>It is not reversible error for a court to refuse to strike out the answer to a question asked a witness on the ground that the question was incompetent, where no objection was made to it when it was asked.</p> <p>4L Same—Necessity op Renewal op Motion.</p> <p>The refusal to strike out incompetent testimony cannot be assigned as error, where the court stated that it would be expunged unless other testimony was introduced thereafter to render it competent, and the motion was not renewed.</p> <p>6. Witnesses—Refreshing Memory—Use of Memorandum.</p> <p>A physician may properly refer to a memorandum made at the time of visiting a patient to refresh his memory as to the condition of the patient at the time of such visit.</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>On September 5, 1901, James H. Beckham and James G. McKnight, the appellees, exhibited a bill of complaint against the city of Hutchinson, in the state of Kansas, et al., in the circuit court of the United States for the ■district of Kansas, wherein they averred, in substance, that they were engaged in business at Kansas City, in the state of Missouri, of which latter state they were residents and citizens, as “wholesalers and jobbers of groceries”; that their storerooms and offices were, and for a long time had been, located at Kansas City, Mo.; that they were engaged in interstate •commerce, it having been their practice for a long time to sell groceries in many cities and towns in the state of Kansas and elsewhere, and particularly to retail grocers doing business in the city of Hutchinson, Kan., and in that vicinity; that in order to make a speedy delivery of goods sold in the latter city, after they were ordered, they had theretofore established and still continued to maintain a depot for the storage of groceries in original packages in the city of Hutchinson, which depot wás in charge of an agent of the complainants, who represented them in said city and vicinity; that, by reason of its excellent railroad facilities and geographical situation, the city of Hutchinson was favorably situated for the location of a depot and warehouse for the distribution of the complainants’ goods, and for that reason such a depot had been for a long time maintained by the complainants. The bill further averred, in substance, that the city of Hutchinson, acting by its mayor and eouncilmen, on June 25, 1900, had enacted a certain •ordinance by the terms of which a license tax in the sum of $1,200 per annum was imposed upon the complainants as well as upon other jobbers who had goods stored in the city of Hutchinson for distribution to retail dealers, but who did not keep and maintain their principal office for the transaction of business in said city; that by the terms of said ordinance no persons engaged as jobbers of merchandise who did maintain their principal office in the city of Hutchinson, and did store goods therein for distribution to retail dealers, were required to pay said license tax, but were wholly exempt therefrom; that on August 1, 1900, the first section of said ordinance was amended so as to provide that licenses issued thereunder by the city should expire on the last day of June and the last day of December next after they were issued, and that the license fee should be at the rate of $1,200 per year, or $100 per month. It was further averred that, by the terms of said ordinance, nonresidents engaged in business as wholesalers and jobbers, who stored goods in said city of Hutchinson for distribution to retailers in Missouri or other states than Kansas, were not required to pay said license tax, but were exempt therefrom; that said ordinance applied ■only, and was intended to apply, so as to prevent the sale and speedy delivery of goods, to retail dealers in Kansas, by merchants and jobbers, like the complainants, who did business in other states than Kansas; and that by the enactment of said ordinance it was intended to hamper, burden, and prevent commercial transactions between citizens of the state of Kansas and citizens of other states, and to prevent the complainants from speedily delivering goods which they might sell to retail dealers residing in the city •of Hutchinson and its vicinity. It was also averred that the aforesaid ordinance was enacted in pursuance of a conspiracy between merchants and jobbers who resided in Hutchinson and maintained their principal offices' there, the purpose of the conspiracy being to harass the complainants and others in a like situation, and to render their business in the city of Hutchinson unprofitable, and to compel them to discontinue said business by discriminating against them and in favor of persons engaged in the same line of trade who were residents of the city of Hutchinson and maintained their principal offices in said city. It was further averred that the complainants were liable to be proceeded against and compelled to pay a fine of not less than $10 nor more than $100, and to stand committed until the fine was paid, or to be confined in the city jail not less than 10 days nor more than 30 days, or to suffer both fine and imprisonment, in the discretion of the police judge, if they failed to comply with the provisions of said ordinance; that, by reason of the complainants’ failure to comply ■with the provisions of said ordinance, the defendant city had instituted criminal proceedings against their agents, and caused them to be imprisoned, and had threatened and were about to institute a great number of other like prosecutions against them, and to daily apprehend and imprison the complainants’ agents until they complied with the provisions of the ordinance. In view of the premises, the complainants charged that the aforesaid ordinance was wholly illegal and void, and they prayed that the court would by its decree so declare, and perpetually enjoin the defendants from attempting to enforce the provisions thereof. The defendants below filed a general demurrer to the bill, which was overruled. Thereupon the defendants declined to plead further, and a final decree was entered in favor of the complainants below, granting the relief prayed for. From such decree the defendants prosecuted an appeal to this court.</p>

This is an appeal from a decree of the circuit court of the United States for the district of Kansas, whereby an intervening petition, which was filed •by Allie Hay Goodwin, formerly Allie May Henry, the appellant, in an •equity cause pending in that court, was dismissed. The facts out of which the controversy arises are as follows:.

<p>1. Agents—Scope of Authority—Drawing Drafts.</p> <p>An agent of an elevator company, in charge of one of its grain elevators, with general authority to draw drafts on the company to procure cash necessary to pay for grain purchased and to properly conduct the business, without any specific limitation on such authority by his contract or instructions given him, did not exceed his authority by using, in payment for grain, money collected by bim for a lumber company for which he was also agent, and remitting to such company in payment for the same by drafts drawn on the elevator company.</p> <p>2. Same—Limitation by Custom of Business—Notice to Charge Third Parties.</p> <p>Evidence of a general custom or usage in the elevator business limiting the power of local agents, in the drawing of drafts, to such as were drawn in payment for grain bought or negotiated for cash at the time they were drawn, was not admissible to affect the lumber company, without proof that it had knowledge of such custom; there being no presumption that it had knowledge of a custom prevailing in a particular business in which it was not engaged.</p> <p>S. Instructions—Applicability to Issues.</p> <p>The complaint in an action by the elevator company against the lumber company to recover the amount of drafts drawn on plaintiff by its agent, and paid by it to defendant, alleged that defendant did not pay to such agent, for the use of plaintiff, the amount named in the drafts, or any other sum, but received and collected the drafts, well knowing that plaintiff received no consideration therefor, but that plaintiff paid the same, supposing that the amounts had been furnished to its agent. The answer admitted the receipt and collection of the drafts, but denied that they were without consideration, and alleged that defendant paid the full amount thereof to the agent for plaintiff’s use. Eeld, that the action was one to recover money paid under a mistake of fact, and that instructions that plaintiff was entitled to recover if the agent exceeded his authority in drawing the drafts were properly refused, as not applicable to the issue joined by the pleadings.</p> <p>¶ 2. See Customs and Usages, vol. 15, Cent. Dig. §§ 23, 24.</p>

<p>1. Master—Injury to Employe—Railway Collision—Negligence—Question for Jury.</p> <p>Where a fireman on a freight train was injured in a collision with another train, due to the failure of the engineer of the latter train to remain at a station as ordered, the questions whether such engineer was incompetent by reason of his carelessness and forgetfulness, and whether the company knew, or in the exercise of ordinary care might have known, that he was incompetent, held, under the evidence, to be for the jury.</p> <p>2. Same—Duty of Railroad in the Employment of Engineers.</p> <p>Since the proper performance of the duties of engineers in charge of railway trains depends on their being prudent, alert, and mindful of orders, railway companies must keep a close watch on the habits and mental peculiarities of the persons whom they employ as engineers; this exaction being nothing more than that they exercise ordinary care in the selection of their engineers, in the light of their duties.</p> <p>8. Same—Evidence—Admissibility.</p> <p>Where the complaint in an action by a fireman for injuries averred that his only means of escaping serious injury when a collision with another train was imminent was to jump from his engine, which he did, and was injured, and which allegation defendant denied, the admission-in evidence of photographs of the wreck, though taken after the positions of the engines had been somewhat changed, was proper, as tending to show the actual result of the collision, and the necessity which existed for the fireman leaping from the engine before the collision occurred.</p> <p>4. Same.</p> <p>The admission of testimony that five other persons were injured In the collision was proper, for the same reason.</p>

" Bernard MeGreevy, the defendant in error (plaintiff below), was, in June and July, 1897, and before and after that time, the local agent, at the city of O’Neill, Holt county, Neb., of the Fireman’s Fund Insurance Company, of San Francisco, Cal., the plaintiff in error (defendant below).

<p>1. Shipping—Injury of Stevedore—Unsafe Appliances.</p> <p>The fact that a piece of wire rope furnished by a ship for the use of stevedores broke under a weight only one-tenth as great as it should have safely supported if in good condition is sufficient evidence that it was not in good condition to render the ship liable for a resulting injui-y to a stevedore on the ground of its failure to furnish proper and safe appliances.</p> <p>2. Same—Latent Defects.</p> <p>A stevedore was injured through the breaking of a band furnished by the ship for rigging a hoisting boom to the mast. Such band was made some three months before, under direction of the ship’s officers, from a piece of old wire hawser, and covered with service or parceling, and broke on account of the rusted and weak condition of the wire. Held, that the ship was not exonerated from liability on the ground that the defect was latent, because not apparent by reason of the covering.</p>

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

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p>

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

<p>1. Landlord and Tenant—Action of Detainer—Denial of Landlord’s Title.</p> <p>In an action of detainer in the Indian Territory between white men who are citizens of the United States, the rule that a tenant cannot deny his landlord’s title applies as fully as elsewhere; and it is no defense by a tenant who has been put into possession of a lot, and has paid rent under his lease, that the landlord has not made improvements on the property of the permanent and substantial character required to-entitle him to obtain title to the lot.</p> <p>2. Same—Indian Territory—Validity of Leases between White Men.</p> <p>The Atoka agreement (30 Stat. 495) did not have the effect of annulling all leases of lots between white men in the Choctaw and Chickasaw Nations, but, rather, recognized their validity, by providing the means for transference of the legal title.</p> <p>8. Same—Termination of Lease.</p> <p>Under a lease for one month, and from month to month thereafter until terminated at the option of either party, or by the failure of the lessee to pay the rent, an action of detainer lies where the lessee has refused to pay rent or to surrender the premises after written demand therefor.</p> <p>i Same—Action for Unlawful Detainer—Sufficiency of Complaint.</p> <p>The sufficiency of a complaint in an action for unlawful detainer is not affected by the fact that it also seeks to recover rents which accrued prior to the commencement of the action.</p>

<p>1. Army Officers—Claim for Loss of Private Property—Reopening after Allowance and Payment.</p> <p>Where the claim of an army officer for the loss of private property in the service, filed under Act March 3, 1885 (23 Stat. 350 [U. S. Comp. St. 1901, p. 172]), was audited, allowed, and paid in the usual manner, the government cannot reclaim the money without showing that it was obtained by fraud or paid under a mistake of fact. Act July 31, 1894 (28 Stat. 207, c. 174 [U. S. Comp. St. 1901, p. 159]), providing that a revision of an account by the comptroller of the treasury may be obtained within a year after it has been settled by the auditor, does not authorize the comptroller to take up a claim and revise it of his own motion, ex parte, after it has been paid in the regular course of business, and thereby create a legal demand against the claimant for repayment of the money received, but applies only to claims which are unpaid, and therefore still pending.</p>

<p>1. Guaranty—Valuable Consideration—Original Obligation Void.</p> <p>The owner and holder of municipal bonds that have been sold and delivered to him by the municipality or some previous owner, who subsequently sells the same to a third party for a valuable consideration, and as a part of the contract of sale guaranties their payment, may be held liable on his guaranty, if it subsequently transpires that the bonds were illegally issued and not enforceable against the municipality. Such a contract being collateral to the contract evidenced by the bonds, and made subsequently, and resting upon an independent consideration, the general rule of law, that whatever serves to discharge a contract and render it unenforceable against the principal debtor will render it unenforceable against his surety or guarantor, has no application.</p> <p>¶ 1. See Guaranty, vol. 25, Cent. Dig. { 7.</p>

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

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

Appeals from Orders of Deportation by United States Commissioners. United States v. Lee Huen, alias Ui Lee Huen. Held: and the court should now hold, that the defendants established their case, and sustained the burden of proof which the law easts on them; that the refusal to so hold was an error of law.

At Daw. On demurrer to the jurisdiction. George Scott, a citizen of Missouri, instituted in this court an action at law against A. P. Simms, W. F. Files, and the plaintiff in this ease, J. T. Files, to recover money alleged to be due him from these parties, whom he charged to be partners.

<p>1. Bankruptcy—Conditional Sales op Goods to Bankrupt—Construction op Contract.</p> <p>Where a consignee of goods from a wholesale house is at liberty to sell at any price and on any terms he pleases, accounting therefor at a fixed price to the consignor, and where he is required to pay the freight, taxes, and insurance on the goods, to be responsible for them in case of loss, and at a fixed time to pay for such as remain unsold, fit the option of the consignor, he is not an agent or factor, but the transaction is one of conditional sale, whatever name may be given it by the contract; and, under the statute of Missouri, the attempted reservation of title in the consignor is void as against purchasers or creditors of the consignee, either past or subsequent, and it is also void as against his trustee in bankruptcy, who stands in the same position as the creditors, under such statute, and the consignor has only the rights of an ordinary creditor.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 199.</p> <p>2. Same.</p> <p>The fact that the bankrupt, for purposes of his own, in making sales represented himself as merely the agent of the consignor, cannot affect the construction of the contract, nor enlarge the rights of the consignor thereunder as against other creditors.</p>

<p>1. United States Marshals—Duty in Execution op Criminal Sentence-Surrender op Prisoner to Another Court.</p> <p>A United States marshal who has been directed, by a judgment and sentence of the court imposing a term of imprisonment on a defendant convicted of crime, to convey such defendant to a penitentiary, and deliver him to the keeper, in execution of the sentence, has no authority to surrender the prisoner to the marshal of another district, to be tried for another offense, and his action in so doing is illegal.</p> <p>2. Criminal Law—Sentence op Imprisonment—Commencement op Term.</p> <p>Where a marshal failed to obey the judgment of a federal court directing him to convey a prisoner to the penitentiary, and deliver him to the keeper to serve a term of imprisonment, in execution of the sentence imposed by such judgment, but, in violation of his duty, delivered the prisoner to the marshal of another district, where he was tried, sentenced, and imprisoned for a different offense, the term of imprisonment under the first sentence must be computed from the date of such sentence, when it would have commenced had the marshal performed his duty, it not being within the power of a ministerial officer, by any action of his, to suspend the operation of the sentence of a court so as to prevent it from expiring by lapse of time; and, under such circumstances, it must be presumed, in favor of the prisoner, that he would have earned the good time allowed him by law for good conduct.</p>

<p>Action on Bond of Trustee in Bankruptcy. On demurrer to complaint.</p>

<p>1. Bankruptcy—Discharge—Concealment op Property.</p> <p>A bankrupt wbo, In the schedules accompanying his petition, declares he has no property, but later on, as part of his state exemption, claims certain property, is not on this account to be charged with concealing the property, so as to lose his right to a discharge.</p> <p>2. Same.</p> <p>Nor is it a concealment that in so claiming a certain number of shares of stock he does not name the stock, and undervalues it, though this may be evidence on the question of concealment</p> <p>8. Same—False Oath.</p> <p>A bankrupt who, in the schedules accompanying his petition, declares he has no property, but later on, as part of his state exemption, claims S shares of stock, not named, of the “nominal value of $120,” when a few days later he received 10 shares of stock, under a contract he then had, and till then expected he was to receive 20 shares, or $1,000 worth, of the stock, will be held to have made a false representation with regard to his property, which, being sworn to by him in verifying his schedules, amounts to a false oath, which bars a discharge.</p> <p>4. Same.</p> <p>The same is true with respect to a contract under which he was entitled to receive money; it not being mentioned, though it was nominally assigned to another, and was in fact assigned to the amount he owed the assignee; it otherwise being treated by him, the assignee, and the other party thereto, as his.</p> <p>¶ 3. See Bankruptcy, vol. 6, Cent. Dig. § 733.</p>

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

On motion to quash indictment under section 3893, as amended by 25 Stat. 496 [U. S. Comp. St. 1901, p. 2658], for mailing a letter “of an indecent character,” alleged to be “obscene, lewd, and lascivious.”

For opinion below, see 106 Fed. 243. This is a controversy between the St. Paul, Minneapolis & Manitoba Railway Company, the appellant, and the Western Union Telegraph Company and the Northwestern Telegraph Company, the appellees, concerning their respective rights and interests in lines of telegraph erected and now standing on the right of-way of said railway company in the states of Minnesota, North Dakota, Montana, Idaho, Oregon, and Washington.

<p>1. Circuit Court of Appeals—Jurisdiction—Constitutional Question.</p> <p>The fact that a question as to the construction or application of the constitution of the United States arises incidentally in the trial of an action in a circuit court, as upon objection to the admission in evidence of an act of a state legislature as a muniment of title, on the ground that it was in contravention of the constitution, does not deprive the circuit court of appeals of jurisdiction to review the whole case on a writ of error.</p> <p>2. Boundaries—Location of Lines—Question for Jury.</p> <p>The question of the location of a boundary line is one of fact, and where the evidence is contradictory, or where reasonable minds might draw different conclusions from undisputed facts shown, such question should be submitted'to the jury.</p> <p>8. Same—Evidence to Relocate Survey—Conflicting Calls.</p> <p>Under the settled rule that calls in a survey for natural objects must control both course and distance, it is error for a court to charge a jury to ignore such calls, as having been made through' ignorance or mistake, and to be governed by courses and distances, because the objects called for are not found on the courses or at the distances called for, where there is evidence tending to show that the objects exist, and to identify them sufficiently to justify a finding that they were those seen and called for by the surveyor, however much they may be at variance with the courses and distances called for; nor is such charge justified by the further fact that such a finding would make the quantity of land embraced within the survey much smaller than that stated.</p> <p>¶ 1. Federal jurisdiction in cases involving federal questions, see note to Bailey v. Mosher, 11 O. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. C. C. & S. Min. Co., 35 O. C. A. 7.</p> <p>¶ 3. See Boundaries, vol. 8, Cent. Dig. § 12.</p>

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

<p>1. Corporations—Reorganization Agreement between Bondholders—Enforcement in Equity.</p> <p>A committee, authorized thereto by holders of bonds of an insolvent corporation, on which the interest was in default, formulated and carried out a plan of reorganization by a foreclosure and purchase of the property, using in payment therefor bonds and matured coupons deposited by the holders participating, who received certificates exchangeable for bonds of the new company when organized. Complainant alone, of those who joined in the reorganization agreement, before depositing his bonds, detached the matured coupons therefrom, and received payment of the same from the proceeds of the sale. Held, that he was subject to and affected by all the equities arising out of the agreement, and that a court of equity would not enforce such agreement for his benefit, by requiring the committee to deliver to him the bonds of the new company, until he placed himself on an equality with the other bondholders, by returning the money collected on the coupons.</p> <p>2. Bes Judicata—Matters Concluded by-Judgment.</p> <p>The action of the court in the foreclosure suit in decreeing payment in full of complainant’s coupons, which, by the terms of the mortgage, were given precedence over the principal of the bonds, was not an adjudication of the rights of the bondholders, as between themselves, under the reorganization agreement.</p>

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

<p>1. Dismissal—Right of Plaintiff before Trial.</p> <p>Under the rule of the common law, where no affirmative relief is asked for by the defendant a plaintiff may discontinue his action without prejudice at any time before trial, as a matter of right.</p> <p>2. Same—Mandamus—Ineffectiveness of Writ.</p> <p>A proceeding for mandamus should be dismissed where It Is made to appear by the relator before trial that the occasion for which the writ was demanded has passed, and that there is no longer any actual controversy between the parties, and no subject matter involved on which the judgment of the court can operate.</p> <p>¶ 1. See Dismissal and Nonsuit, vol. 17, Cent. Dig. §§ 27, 33.</p>

Leslie began this action in the superior court of .Cook county, 111., upon a contract executed by the parties on August 20, 1884. The cause was removed to the federal court, on the petition of the company, on the ground of diversity of citizenship. The contract provided: (1) A prior contract is hereby rescinded.

<p>1. Patents—Validity—Second Patent for Same Invention.</p> <p>An inventor may be entitled to a patent for tlie method or process for producing a new and useful result, and also for a mechanical means by which it is produced, when the method or process is susceptible of being performed by other known means, and the means invented are of such a character as to merit a patent.</p> <p>2. Same—Electric Power Transmission—Split-Phase Motors.</p> <p>The Tesla patents, No. 511,559, for a method of operating an electric motor by means of alternating currents, and No. 511,560, for a specific device for practicing such method, known as the “Split-Phase Motor,” disclose invention, viewed in the light of the prior state of the art; and neither was anticipated by patent No. 416,193 to the same inventor.</p>

<p>1. Patents—Validity—Process for Chipping Glass.</p> <p>The Evans patent, No. 494,999. for a process for chipping glass, held void for lack of novelty and invention, in view of a prior decree between complainant and a different defendant so holding, which was affirmed on appeal, and the supreme court having refused to grant a writ of certiorari to review such decision.</p> <p>2. Same.</p> <p>The Thompson patent, No. 405,283, for a process for chipping glass, held entitled only to a narrow construction in view of the prior art, and as so construed not infringed.</p>

In Equity. Suit for infringement of letters patent No. 345,953, ■ granted to John Brislin and Antoine Vinnac July 20, 1886, and No. 352,748, granted to Patrick F. Hanley and Francis N. Richey November 16, 1886, both relating to a feeding mechanism for rolling mills. On final hearing:

In Equity. Suit for infringement of letters patent No. 622,251, for a holding device for riveters, issued to Robert S. Moore, April 4, 1899. On final hearing.

<p>In Equity. Suit for infringement of patent. On demurrer to bill.</p>

<p>1. Federal Courts—Eight to Take Depositions—Distance prom Place of Trial.</p> <p>Wbetber a witness lives at a greater distance than 100 miles from tbe place of bolding a federal court, so as to authorize tbe taking of bis deposition for use in a civil cause depending therein, under Kev. St. § 863 [U. S. Comp. St. p. 661], is to be determined by taking tbe ordinary, usual, and shortest route of public travel, and not by tbe distance in a straight line.</p> <p>¶ 1. See Depositions, vol. 16, Cent. Dig. § 27.</p>

<p>1. Carriers—Suit to Enforce Orders of Interstate Commerce Commission-Burden of Proof.</p> <p>The conclusions of the interstate commerce commission, based upon its findings of fact that charges made by a railroad company are unjust and unreasonable or unlawfully discriminating, are presumed to be well founded and correct, and in a suit to enforce its orders the burden rests upon the company to show them to be erroneous.</p> <p>2. Same—Discrimination in Bates.</p> <p>Conceding that a railroad company may, to a reasonable extent, so adjust its rates as to promote its own interest by favoring and building up a seaport on its own line at the expense of another on a rival road, it cannot, with that purpose, adopt rates unreasonable in themselves, nor which are unduly preferential to its own port and unduly prejudicial to the other or to the public; and rates upon products shipped from points on its line where there is no competition, which are so grossly discriminating as to be prohibitory of shipments to the latter place, which affords the better market, adopted for the purpose of compelling the shipment of such products in the opposite direction to its own port, are unlawful, not only as unduly discriminating between the two cities, but as making a discrimination injurious to the public.</p> <p>8. Same.</p> <p>The fact that a railroad line operated as a part of a large railway system, considered as a “separate road, fails to pay expenses, does not justify the charging of unjust and unreasonable rates nor undue discrimination in rates.</p> <p>4. Same—Interstate Commerce Commission—Jurisdiction.</p> <p>An advanced rate of freight on certain articles, filed with the interstate commerce commission, and put into effect pending- a hearing before the commission on the legality of the rate previously in force, is properly before the commission for consideration on such hearing.</p> <p>5. Same—Joint Through Rate—Several Responsibility of Companies.</p> <p>The making of a through rate on interstate shipments by the joint action of connecting railroads is the act of each, and brings each within the scope of the interstate commerce act, and renders it responsible for such rate, without regard to the proportion thereof received for its own service.</p> <p>6 Same—Unreasonable and Discriminating Rates—Evidence Considered.</p> <p>Evidence examined, and held to sustain the findings and conclusions of the interstate commerce commission that rates charged on through shipments of naval stores and uncompressed cotton from points on the Pensacola & Atlantic Division of the Louisville & Nashville Railroad to Savannah were in violation of sections 1 and 3 of the interstate commerce act, as being both unjust and unreasonable in themselves and unduly discriminating.</p>

<p>1. Creditors’ Suits—Abatement—Effect of Bankruptcy Proceedings.</p> <p>The jurisdiction of a federal court of equity to proceed to a final decree in a pending suit by judgment creditors, commenced after the return of executions nulla bona, to set aside alleged fraudulent conveyances by the debtor, is not affected by the filing of a petition in voluntary bankruptcy by the defendant.</p> <p>2. Same—Evidence—Presumption from Failure to Produce Books of Bank.</p> <p>In a creditors’ suit against the members of an insolvent banking firm to set aside alleged fraudulent transfers of the bank’s assets, the failure of defendants to produce the important books of the bank when required, or to account for the same, raises a presumption of fraud, of the most damaging character.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. §§ 289, G51.</p> <p>8. Fraudulent Conveyances—Appointment op Receiver—Evidence Considered.</p> <p>Evidence examined on an application by complainants in a creditors’ suit for the appointment of a receiver, and helé to strongly sustain the allegations of the bill that conveyances of large amounts of real estate by the judgment defendant, the greater part of -which came into th.e possession of his wife and other relatives, were fraudulent, and made with intent to hinder and delay creditors, and to entitle complainants to the appointment of a receiver for such property.</p>

<p>1. Evidence—Witnesses—Premature Examination.</p> <p>Where, in an action to restrain infringement of a patent, its validity and the infringement are not disputed, and complainant claims as an assignee, and proves such assignment, its prima facie case is complete, and an application by it to examine witnesses as to defendant’s knowledge of the assignment is premature.</p>

<p>1. Contributory Negligence—Pleading.</p> <p>Under the rule of code pleading that the facts relied on be stated in a clear and concise manner, an answer alleging that the injuries causing the death of plaintiff’s intestate arose from his carelessness, negligence, and fault may be required to be made more definite.</p>

<p>At Law. Motion to set aside an attachment.</p>

<p>In Equity. Suit for infringement of trade-name and for unfair competition.</p>

At Law. Action of trespass by the United States for the unlawful cutting of timber from public lands. On motion for new trial.

<p>At Law. Action for conversion.</p>

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

<p>In Bankruptcy.</p>

<p>1. Bankruptcy—Partnership—Liens—Preference.</p> <p>Under Bankr. Act 1898, § 3, subd. 2 [U. S. Comp. St. 1901, p. 3422], declaring it to be an act of bankruptcy for a person to transfer, while insolvent, any portion of his property to a creditor with intent to make a preference, section 60a [U. S. Comp. St. 1901, p. 3445], providing that the person shall be deemed to have given a preference if, being insolvent, he has made a transfer of any of his property which will enable a creditor to obtain a greater percentage of his debt than other creditors of the same class, and section 67e [U. S. Comp. St. 1901, p. 3449], declaring that conveyances or incumbrances of property made by a person adjudged bankrupt within four months thereof shall be void if made with the intent to hinder, delay, or defraud other creditors,—a mortgage, given by an insolvent firm, within four months of bankruptcy proceedings against it, to secure a past indebtedness, and which conveys all the firm property, is void as giving to the creditor a preference.</p>

<p>1. Bankruptcy—Partnership Creditors—Right to Share in Individual Estate.</p> <p>Partnership creditors are entitled to share ratably with individual creditors in the individual assets of a bankrupt, where the partnership became insolvent and its assets were exhausted prior to the bankruptcy, and before the individual debts were contracted.</p>

<p>In Equity. On motion of complainant for leave to amend bill and for leave to file supplemental bill.</p>

<p>L Bankrupts—Discharge—Grounds for Denial.</p> <p>Bankr. Act, § 14 [U. S. Comp. St. 1901, p. 3427], provides, as a ground for refusing to discharge a bankrupt, that he has “committed an offense punishable by imprisonment as herein provided.” Section 29, subd. b (2) [U. S. Comp. St. 1901, p. 3433], provides for punishment by imprisonment if one “has made a false oath or account in, or relation to, any proceeding in bankruptcy.” Held, that the making of a false oath by a bankrupt In a proceeding in bankruptcy, not against him, but against the corporation of which he was an officer and stockholder, was not ground for refusing his discharge.</p> <p>2. Same—Specification in Opposition to Discharge—Sufficiency.</p> <p>The specification in opposition to the discharge of a bankrupt, for making a false oath, should aver that it was done “knowingly and fraudulently”; those words being used in Bankr. Act, §§ 14, 29 [U. S. Comp. St. 1901, pp. 3427, 3433], which, taken together, make that a ground for refusing a discharge.</p> <p>3. Same—Failure to Schedule Assets—Evidence—Sufficiency.</p> <p>Evidence examined, and held not to warrant the court in refusing to discharge a bankrupt on the ground that at the time of his petition he was in the possession of certain funds which he had failed to schedule as part of his assets.</p> <p>4. Same—Fraud.</p> <p>Evidence examined, and held' insufficient to show that a bankrupt “knowingly and fraudulently” omitted to schedule as a part of his assets his beneficial interest in certain policies of insurance, and therefore the omission was not ground for refusing his discharge.</p> <p>5. Same—Incorrect Entry of Assets.</p> <p>The fact that a bankrupt In his schedule showed that he had a one-half interest in certain land, whereas he only held a life interest therein, was not ground for refusing his discharge, where he testified that he did not know exactly what his interest was.</p> <p>0. Same—Specification in Opposition to Discharge—Sufficiency.</p> <p>A specification in opposition to the discharge of a bankrupt, which recites that he “has neglected to keep books and accounts showing his financial condition, * * * hence the true status of his affairs cannot be ascertained,” states no offense within Bankr. Act, § 14 [U. S. Comp. St. 1901, p. 3427], which provides as one of the grounds for refusing the discharge that the bankrupt has, “with fraudulent intent to conceal his true financial condition, * * * destroyed, concealed, or failed to keep books of account.”</p> <p>7. Same—Grounds for Refusing Discharge.</p> <p>Omission of creditors from the schedule of a bankrupt Is not ground for refusing his discharge.</p> <p>8. Same—Specification in Opposition to Discharge—Indefiniteness.</p> <p>A specification in opposition to the discharge of a bankrupt, which recited that he made “various contradictory statements” in a certain other bankruptcy ease, naming it, “and also the case herein, and that he gave unsatisfactory and indefinite accounts of the proceeds of his crop for the year 1901, and reference is hereby craved to testimony taken in both of said cases,” is bad for indefiniteness.</p>

<p>1. Preliminary Injunction—Sufficiency op Showing—Question of Jurisdiction.</p> <p>While the question of jurisdiction will not be summarily disposed of by a federal court on a motion for a preliminary injunction, yet the burden rests on complainant on such a motion to satisfy the court that there is at least a reasonable probability of ultimate success on the question of jurisdiction as well as upon the merits.</p> <p>2. Constitutional Law—Due Process of Law—Agencies of State.</p> <p>Trespasses on the property rights of an individual, committed by public officers or agents professedly acting under authority of a state law, but which are not only not authorized by such law, but by a fair construction of it are prohibited, cannot be imputed to the state so as to bring them within the constitutional inhibition to deprive persons of property without due process of law, and on that ground to confer jurisdiction on a federal court to grant relief.</p> <p>3. Same—Unauthorized Acts of State or Municipal Officers.</p> <p>The New York rapid transit act provides that the general plan of railroad lines to be constructed thereunder, which, with a statement of the route or routes, is to be submitted for the approval of the local authorities and of the abutting owners or of the state court, shall show not only the general mode of operation, but also “such details as to the manner of construction as may be necessary to show 'the extent to which any street, avenue, or other public place is to be encroached upon, and the property abutting thereon affected,” and that, once approved, no change shall be made in the plans without the further consent and approval of the same authorities. Eeld, that the action of the rapid transit commissioners in locating a tunnel within 7 feet of the building line on one side of an avenue, and entirely outside the limits of the location shown by the general plan which was approved, and the drawings attached, which required the tunnel to be placed under the center of the avenue, and showed its exterior walls 37% feet distant from the lot line, was without authority of law, and could not be considered an act of the state for the purpose of conferring upon. a federal court jurisdiction to grant a preliminary injunction against the construction of such tunnel on the ground that it deprived an abutting property owner, who was a citizen of the state, of property without due process of law.</p>

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

Omitting the caption and indorsements, the indictment is as follows: “The grand jurors of the United States, within and for the district aforesaid, at Dallas, in said district, duly selected, impaneled, sworn, and charged to inquire into, and true presentment make of, all crimes and offenses cognizable under the authority of the United States, committed within said Northern district of Texas, upon their oaths present in open court that on September 80th, 1896, in Limestone…

<p>t Criminal Offense by Army Officer—Jurisdiction of Civil Courts— Forgery.</p> <p>A district court has jurisdiction to indict and. try a person charged with having forged an obligation of the United States with intent to defraud, which is made an offense against the United States by Rev. St. § 5414 [U. S. Comp. St 1901, p. 3662], although he was at the time an officer of the army, and the alleged offense was committed at a military post and with intent to defraud an enlisted soldier, where the accused has since been discharged from the army without any action against him having been taken by the military authorities; there being no provision, either constitutional or statutory, conferring exclusive jurisdiction on courts-martial to punish such offense.</p> <p>8. Forgery—Sufficiency of Indictment—Duplicity.</p> <p>An indictment under Rev. St. § 5414 [U. S. Comp. St. 1901, p. 3662], for the forgery of an obligation of the United States with intent to defraud, is not bad for duplicity because it charges in a single count an intent to defraud both the United States and a soldier in the army, where the instrument charged to have been forged purported to be a certificate of deposit issued by the United States to the soldier; it being impossible in such case to aver or prove with certainty a specific intent to defraud either one rather than the other, the law will impute to the act an intent to defraud all who might have been thereby defrauded.</p> <p>8. Same—Description of Offense.</p> <p>An indictment for forging a certificate of deposit purporting to have been issued on behalf of the United States to an enlisted soldier, by signing thereto the name of a person described as an officer and deputy paymaster general, with intent to defraud the depositor named therein, need not aver that the person whose name was signed was in fact the officer he was represented to be in the instrument. t</p> <p>4. Same—Obligation of United States—Certificate of Deposit.</p> <p>A certificate issued by an army paymaster to an enlisted man, acknowledging the receipt of money deposited under the provisions of Rev. St. § 1305 [U. S. Oomp. St. 1901, p. 925], is a certificate of deposit, and “an obligation or security of the United States,” as defined in Rev. St. § 5413 [U. S. Comp. St p. 3662], the forgery of which is made a criminal offense by the following section.</p> <p>5. Same—Proof of Handwriting—Opinion of Expert.</p> <p>In a prosecution for forgery a witness who qualifies as a handwriting expert, and who testifies that he has examined a sufficient number of specimens of defendant’s handwriting to enable him to so testify, may properly be permitted to state his opinion that the signature alleged to have been forged was written by defendant.</p> <p>6. Same—Qualification of Witness to State Opinion.</p> <p>A knowledge of the handwriting of a defendant charged with forgery, by a witness who is not an expert, does not qualify him to state his opinion whether or not the forged signature, made in imitation of the handwriting of another, was written by defendant.</p> <p>¶ 5. See Criminal Law, vol. 14, Cent. Dig. §§ 1066, 1080.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>This is an action to recover the amount of a life insurance policy, brought by the defendants in error, as beneficiaries under said policy, against the plaintiff in error, the company issuing the policy. The case is before this court for the second time; having been removed to the supreme court of the United States (20 Sup. Ct. 914, 44 L. Ed. 1097) after the first hearing (38 C. C. A. 159, 97 Fed. 263-270, 49 L. R. A. 127) upon certiorari, and by that court certified back to, the circuit court of the United States for the district of Washington, with a mandate for further proceedings. Upon such proceedings being had (113 Fed. 44), an appeal was again taken to this court.</p> <p>On April 29, 1886, the plaintiff in error issued its policy of insurance upon the life of George Dana Hill, in the sum of $20,000, in favor of his wife, Ellen Kellogg Hill, if she were living at the time of his death, or, in case of her death, to the children of their bodies who should be living at the time of the death of the insured. The first annual premium, amounting to $814, was paid by the insured, upon delivery of the policy to him at Seattle, Wash., to the agent of the insurance company at that place. The wife died in February, 1887, and the insured died on December 4, 1890. No further premiums were paid upon the policy after the first annual premium. It appears from the evidence that when the next annual premium became due the Seattle agent of the insurance company called upon Hill for payment of the same, presenting a renewal receipt duly executed by the head officials of the company; that Hill did not pay the premium, and after repeated opportunities for payment having been given, and not availed of, the agent at Seattle returned the renewal receipt to the general office of the company at San Francisco; that the head of the latter office, out of special interest in the case, returned the renewal receipt to the agent at Seattle, and it was again presented to Hill, and payment requested; that Hill failed and declined to make payment, and the renewal receipt was returned to San Francisco, and thence to the home office, in New York, where the policy was noted as lapsed and terminated. No offer or tender of payment of premium was later made by any one upon the policy. Upon the death of Hill the defendants in error, children of the said Hill and his wife, and named as beneficiaries in the policy, furnished proper proof of the death of the said Hill, and demanded of the plaintiff in error the payment of the amount of the policy. In support of their claim the defendants in error contended that the insured was not in default in the payment of premiums on said policy until a notice had been mailed to him pursuant to the statute of New York requiring notices to be given by insurance companies transacting business in that state; that according to the agreement contained in the application for insurance, and contract of insurance, the terms of said contract were to be performed in New York, and all questions as to the validity of the provisions of said contract, and as to- the rights and liabilities of the parties thereto, must be determined in accordance with the laws of New York; that under such laws the plaintiff in error had no power to cancel the policy or claim a forfeiture without giving the statutory notice; that by reason of the failure to give such notice the premiums did not become due, and there was no default. The plaintiff in error (defendant below) denied that the conditions of the contract of insurance had ever been performed by the insured, and contested the claim that the contract of insurance was to be performed in New York, or was subject to the laws of New York. It contended that it was transacting its business in the state of Washington at the time of the issuance of the policy, having its principal office in Seattle, in said state; that the insured was at that time a citizen of Washington, residing therein; that he made application for insurance of the Seattle agent; that this application was transmitted to the agent of the company at San Francisco, and by him forwarded to the home office, at New York; that pursuant to the application the company issued the policy; sent it to the agent in San Francisco, who afterwards transmitted it to the agent in Seattle; that the insured there paid the first premium, and received the policy. And in response to the contention that there was no default on the part of the insured, it was alleged that at a time more than one year from the time of the issuance of the policy it was mutually agreed between the insured and the insurance company that the said contract of insurance should be waived, abandoned, and rescinded. It was contended that this agreement was made up of the acts of the agent of the insurance company at Seattle in notifying the insured that the premium of $814 necessary to be paid upon said policy for its continuance was due and payable, and of the acts of the insured in informing said agent that he was unable to pay such premium, and intended to allow the policy to lapse and become forfeited for want of payment of said premium, or any future premium accruing on said policy; and it was alleged that the insurance company, in good faith relying upon said conduct and representations of the insured, was induced to, and did, fail and abstain from giving or mailing any notice to the insured, or to any person interested in said policy,- concerning the payment of any premium thereon. Demurrers to the answer were sustained, and, upon the election of the plaintiff in error to stand upon its pleadings, a judgment was given upon the pleadings in favor of the beneficiaries for $24,086.61, with interest and costs. The circuit court of appeals affirmed this judgment; holding that the contract of insurance must be considered as made in the state of New York, and subject to the laws of that state. 38 C. C. A. 159, 97 Fed. 263, 267. Upon appeal to the supreme court of the United States, that court held that the answer of the defendant disclosed a distinct agreeinent on the part of the insured and the company to waive and abandon the policy, and ail rights and obligations on the part of the parties thereto, and that upon the allegation of the insurance company that “each and all the plaintiffs, including the beneficiaries, neglected and refused to pay” the premium due on said policy, the beneficiaries were also parties to the abandonment of the policy, and had no rights remaining thereunder. The judgments of the circuit court of appeals and of the circuit court were reversed, and the case remanded to the circuit court with instructions to overrule the demurrers to the answer of the insurance company. Insurance Co. v. Hill, 178 U. S. 347, 20 Sup. Ct. 914, 44 L. Ed. 1097. In accordance with this mandate, the case was reinstated in the circuit court for the district of Washington, brought to trial, and submitted to a jury for decision upon the question whether the insured himself abrogated the contract by any agreement on his part to surrender or avoid it, and, if so, whether there was knowledge of such agreement by the beneficiaries, or whether there was any act on the part of the beneficiaries amounting to a refusal to pay the premiums, or to surrender the policy or abrogate the contract. The jury found a verdict in favor of the beneficiaries in the sum of $29,020, and from that verdict the insurance company again brings the case to this court upon writ of error.</p>

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

<p>1. Admiralty—Freight—Breach of Contract—Defenses.</p> <p>Where libelant contracted to transport a pile of lumber, which his agent had inspected, from Cheboygan to Chicago, by a steamer and certain barges, under an entire contract, and carried only a proportion of the amount, and the amount carried was less than the carrying capacity of the steamer and any one of the barges owned by libelant, it was no defense to libelant’s breach of contract that one of the barges was disabled by the loss of a mast, and that the lumber consisted partly of strips and partly of boards, instead of being all boards.</p> <p>2. Same—Damages.</p> <p>Where libelant broke an entire contract of affreightment by refusing to transport all of a pile of lumber contracted to be carried, he was nevertheless entitled to recover for the lumber carried, less the damages sustained by the owner of the lumber by reason of the breach of contract.</p> <p>8. Same—Tender—Costs.</p> <p>Where libelant failed to perform a contract for the carriage of lumber, and the owner tendered into court the amount which libelant was entitled to for carrying the part carried, less the amount of cash advanced for fuel and damages for increased freight it was compelled to pay for transporting the balance of the lumber, libelant was not entitled to costs, but a judgment should have been rendered in favor of the shipper, with costs from the time of the tender.</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. This suit grew out of the disputed ownership of two strips of land, each 30 feet wide and 4,700 feet long, in Riverside, a suburb of Chicago. They are adjacent to, parallel with, and separated by, the right of way of a railroad.

Appeals from the Circuit Court of the United States for the District of Massachusetts. The following is the opinion of the court below (LOWEDL, District Judge): These are two bills in equity, brought respectively by Charles R. Gray and Frederick W. Gray, to set aside two assignments made severally by them to the defendant William Gray Brooks. Charles has died since the filing of the original bill, and his administrator has filed a bill of revivor.

<p>1. Army—Claims of Officer for Private Property Lost—Recovery of-Payment Made—Pleading.</p> <p>Under Act Cong. March 3, 1885, 23 Stat. 350 [U. S. Comp. St. 1901, p. 172], authorizing the treasury department to investigate the claim of officers and men for private property lost in the service, and, where it appears the property was lost under certain circumstances without fault of claimant, to pay him therefor, “provided, that any claim which shall be presented and acted on under authority of this act shall be held-as finally determined, and shall never thereafter be reopened or consid-. ered,” a payment made pursuant thereto cannot be recovered back, in. the absence of mistake or fraud, which is not shown by a complaint stating that, after payment of the claim, the department disallowed the claim for the reason that the loss was not without fault of the claimant; this being but an allegation of the reason assigned by the department for its action, and not an allegation of the fact that the loss was not without his fault.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p> <p>For opinion below, see 112 Fed. 546.</p>

In Equity. Suit for infringement of letters patent No. 457,905, for a railway switch, granted to Axel A. Strom August 18, 1891. From a decree dismissing the hill, complainant appeals. On the ground of noninfringement, the court below dismissed appellant’s bill, which was based on letters patent No. 457,905, August 18, 1891, to Strom, assignor. In a split-switch the movable rails are planed to a point, respecting their width.

<p>1. Jurisdiction of Federal Court—Federal Question—Impairment of Contract.</p> <p>It is not essential to the jurisdiction of a federal court of a suit based on an alleged impairment of the obligation of a contract by a state in violation of article 1 of section 10 of the constitution that there should be a valid contract, or that the impairment complained of should in fact be effected, but it is sufficient for jurisdictional purposes if plaintiff claims the existence of such contract, and its impairment, in good faith.</p> <p>■2. Constitutional Law—Due Process of Law—Action of City.</p> <p>The action of a city in repudiating and refusing to perform a contract by the exercise of powers conferred upon it by the state constitutes a depriving of the other party of his property by the state without due process of law within the constitutional inhibition, notwithstanding the fact that the contract was made by the city in a quasi private or business capacity rather than a governmental capacity.</p> <p>■8. Jurisdiction of Federal Courts—Federal Question.</p> <p>A suit to enjoin a city from carrying into effect a resolution of its council by which it declared its purpose to discontinue the furnishing of electric power to complainant under a contract, on the ground that such action was an impairment of the obligation of the contract and deprived complainant of its property without due process of law, is not one for the specific performance of the contract, but one for the protection of complainant’s constitutional rights, of which a federal court has jurisdiction.</p> <p>4. Same—Amount in Controversy.</p> <p>In a suit to enjoin a city on constitutional grounds from shutting off a supply of electric power furnished under a contract, the amount or value in dispute for jurisdictional purposes is the value of complainant’s rights under the contract, and not the amount of the payments to be made thereunder.</p> <p>5. Cities—Validity of Contract—Supplying Electric Power to Street Railroad.</p> <p>A city having authority under section 862 of the California municipal corporation act of 1883, as amended in 1891 and 1897, to acquire, own, and operate street railways, telephone and telegraph lines, gas, and other works for light and heat, and to permit the laying of tracks for street railways in the public streets, has power to contract for a supply of electricity to be used for any of such purposes; and, where it has so contracted for a supply to be used by the terms of the contract in any way it should see fit, or disposed of to private citizens to use for any purpose whatever within the limits of the city, a subcontract to furnish a portion of such supply to a company for the operation of a street railroad to be constructed by the company is not on its face ultra vires.</p> <p>¶ 3. Jurisdiction of federal courts in cases involving federal question, see notes to Bailey v. Mosher, 11 O. O. A. 308; Montana Ore Purchasing Oo. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.</p> <p>¶ 4. Jurisdiction of circuit courts as determined by amount in controversy, ■see notes to Auer v. Lombard, 19 O. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. O. A. 459.</p>

<p>In Equity. On motion for preliminary injunction and demurrer to bill.</p>

<p>1. Criminal Law—Indictment—Statutory Offense—Description.</p> <p>Where an offense is statutory, and is described in the statute, an in- • dietment sufficiently describes the offense which follows the language of the statute, and describes in addition what was the act done constituting the offense.</p> <p>2. Same—Impersonating United States Officer—Obtaining Fraudulent Credit.</p> <p>1 Supp. Rev. St. p. 425 [U. S. Comp. St. 1901, p. 3679], provides that “every person who with intent to defraud * * * falsely assumes * * * to be an officer or employé acting under the authority of the United States,” and in such pretended character demands or obtains “any money * * * or other valuable thing, shall be deemed guilty,” etc. Held, that the statute covers the obtaining some valuable thing by means of the fraudulent standing or credit secured by holding one’s self out as such officer.</p> <p>8. Same—Disjunctive Phrases—Indictment—Evidence.</p> <p>1 Supp. Rev. St. p. 425 [U. S. Comp. St. 1901, p. 3679], provides that any person who shall “demand or obtain” any valuable thing under certain false pretenses shall be guilty, etc. An indictment in following the words of the statute alleged that the defendant “did demand and obtain” a certain thing of value. Held, that it was not necessary in order to sustain the indictment to prove that he both demanded “and” obtained.</p> <p>4. Same—Valuable Thing.</p> <p>A month’s lodging is a valuable thing, within the meaning of 1' Supp. Rev. St. p. 425 [U. S. Comp. St. 1901, p. 3679], providing against the obtaining of any “valuable thing by impersonating” a United States officer.</p> <p>¶ 1. See Indictment and Information, vol. 27, Cent. Dig. §§ 292, 293,</p>

<p>1. Seamen—Assignment op Wages.</p> <p>A paper signed by a seaman at the time he was hired, reciting that the captain and owners of the vessel “will please pay to M.” a certain sum, “to be paid when due for services as sailor on board the” vessel, “and *to be charged to my account at the end of the voyage or when duly discharged from said vessel,” said paper being signed in the presence of the captain, who told M. the money would be paid him after it was earned, is an assignment of wages prior to the accruing thereof, within Rev. St. § 4536 [U. S. Comp. St. 1901, p. 30S2], prohibiting the same.</p> <p>2. Same—Wages Delayed without Reasonable Cause.</p> <p>Payment of wages .of a seaman is not delayed “without sufficient cause” within Rev. St. § 4529 as amended by Acts 1898, c. 28, § 4 (30 Stat. 756 [U. S. Comp. St. 1901, p. 3077]), in such ease providing for additional pay, though the cause of the delay, a contention that an order of the seaman which had been paid was valid, was insufficient in law; “without sufficient cause” meaning “without reasonable cause,”</p>

In Bankruptcy. On certificate from referee. I. Goldsmith was adjudged a bankrupt on his voluntary petition on the 26th day of September, 1898. Among his assets, the bankrupt scheduled two certain lots in the city of Dallas. It is stated in the schedules that these lots are subject to a lien created by a deed of trust in favor of I. Hirseh & Son, executed on the 3d day of January, 1897, to secure the payment of certain notes dated February 5, 1897.

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

<p>1. Municipal Corporation — Ordinances — Police Power—Billboards— Regulation.</p> <p>Under Buffalo city charter authorizing the common, council to enact ordinances to prevent and abate nuisances and for the good government of the city, etc., the city had power to pass an ordinance prohibiting the erection of billboards exceeding seven feet in height within the city, without the council’s permission, and authorizing the abatement of any board erected in violation of the ordinance as a nuisance.</p> <p>2. Same—Federal Courts—Decisions op State Court—Effect.</p> <p>A judgment of a state court of last resort sustaining the validity of a city ordinance prohibiting the erection of billboards is binding on the federal courts sitting in such state in an action to enjoin the enforcement of the ordinance.</p> <p>8. Same—Prospective Operation.</p> <p>Buffalo City Ordinances, § 48, prohibiting the erection of billboards more than seven feet in height without permission from the city council, and requiring the abatement of any billboard erected in violation of the ordinance as a nuisance, is prospective in its operation only, and does not authorize the destruction of boards erected before its enactment</p> <p>¶ 2. .State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. O. A. 548; Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 O. C. A. 553.</p> <p>See Courts, vol. 13, Gent. Dig. §§ 956, 957.</p>

<p>In Equity. On plea to jurisdiction.</p>

<p>1. Post Office—Using Mails to Defraud—Indictment.</p> <p>An indictment under Rey. St. § 5480, as amended March 2, 1889 [U. S. Comp. St. 1901, p. 3696], alleging that defendant devised a scheme to-defraud certain persons out of large sums of money, in pursuance of which scheme letters were sent through the mails, threatening to accuse said persons of crimes and disgraceful matters, which threats were not to be carried out if said money was paid as the price of silence, states a case of what is commonly called “blackmail,” and is a scheme-to defraud, and a crime,* under said section of the United States statutes..</p>

<p>1. Removal of Cause—Petition—Record.</p> <p>A petition for . the removal of a cause to the federal court, though filed in the state court, is transmitted to the federal court as a part of the record, and is a pleading on the allegations of which the right of removal rests, and to which the pleadings of the adverse party must refer.</p> <p>2. Same—Application to Remand.</p> <p>Where a petition for the removal of a cause, filed February 13, 1902, alleging that defendant was required to appear within 42 days from December 3d, but that the time to plead was to be regulated by a rule of court, and that defendant’s time to answer or plead did not expire until February 14, 1902, a motion to remand the case alleging that under the court rules of the state court defendant’s time to plead had expired when its petition for removal was filed, but failing to set up the rules relied on, could not be sustained.</p> <p>3. Same—Court Rules—Judicial Notice.</p> <p>While the federal courts take judicial notice of the laws of the state in which they are sitting affecting procedure, they do not take judicial notice of the rules of such state courts, and such rules, if relied on, must be specially pleaded.</p> <p>¶ 3. Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, 44 O. O. A. 4.</p>

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

<p>1. Appeal—Review—Findings of Master.</p> <p>Findings of fact made by a master on conflicting evidence, and confirmed by the court, will not be reviewed on appeal, unless a plain case of error or mistake is shown.</p> <p>2. Equity—Amendment of Pleadings—Discretion of Court.</p> <p>Leave was granted to amend a cross-bill, which had been referred to a master for hearing, by a date specified, and the hearing was postponed to permit the reformation of the pleadings; but the cross-complainant filed no amended cross-bill, and proceeded with the hearing without asking further time. Held, that it was within the discretion of the court to refuse to permit an amended cross-bill to be filed on application made more than six months after the hearing had been closed, and the master had filed his report.</p> <p>It. Reference—Issues before Master — Effect of Prior Interlocutory Decree.</p> <p>A provision of a decree directing a sale of railroad property in a foreclosure suit, giving priority to a subcontractor’s lien set up in a cross-bill, “to the extent that it shall be established,” did not determine the validity of such lien, where that question was at issue under the pleadings, and had not at the time been tried, but left that issue, as well as the amount due the cross-complainant, to be determined on a subsequent reference to a master to take testimony and report his findings “on the issues arising under said cross-bill * * * and the answers and amendments thereto.”</p> <p>i. Evidence—Relevancy to Issues.</p> <p>Under a cross-bill to enforce a statutory lien on railroad property in favor of a subcontractor, evidence to prove an agreement, unsupported by allegations in the pleading, by the principal contractor to take, at a stipulated price, certain bonds of the company, which the subcontractor had contracted to receive in part payment for the work done, is irrelevant and inadmissible.</p> <p>5. Same—Adding to Written Contract by Parol.</p> <p>A parol agreement cannot be shown, to add new and distinct conditions to a written contract made between the parties at the same time, where neither fraud nor mistake is shown.</p>

The appellant (defendant below) is a banking corporation doing business at Overton, in the state of Nebraska. From some time prior to the year 1897, until October 4, 1899, G. S. Hardinger was its cashier, and had the charge and practical management of its affairs; its president and other directors residing at Lexington, in the same state.

July 28, 1900, appellee, a citizen of Ohio, filed in the court below his bill against John McKechney and John McKechney, Jr., citizens of Illinois, for an accounting, a temporary injunction, and the appointment of a receiver of the partnership property of the late firm of Weir, McKechney & Co., composed of complainant’s testator and the defendants. July 30, 1900, the court entered a temporary restraining order. August 29, 1900, the defendants answered.

ín Error to the Circuit Court of the United States for the Eastern District of Louisiana. , By Act No. 165 of 1858, amended by Act No. 191 of 1859 and Act No. 57 of 1861, certain drainage districts were established covering certain territory within the city of New Orleans. The cost of the work was imposed on all the lands within the several districts.

Mrs. M. M. Reagan brought this suit, for herself as widow and her minor children, for damage caused by the killing of her husband, Martin Reagan, a fireman in the employ of the Texas & Pacific Railway Company, who was killed in a wreck on said railway alleged to have been caused by the negligence of one Price, an engineer handling the engine on which Reagan was firing. Two freight trains had orders to meet and pass at Hetz.

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

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

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

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

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

In Equity. Suit for infringement of letters patent No. 586,953, for a picture-exhibiting apparatus, granted July 20, 1897, to Charles Francis Jenkins and Thomas Armat. On final hearing.

<p>1. Patents—Designs—Evidence of Infringement.</p> <p>Where the effect of complainant’s patented design was.to introduce, into the market a new article of manufacture made and sold by him, the fact that purchasers of similar articles subsequently made and sold by defendants supposed they were getting complainant’s design does not establish that such articles infringed the design patent, where the mistake resulted from the novelty of the article itself and not from the similarity of the design, but the question of infringement must be determined by a comparison of the designs with that of the patent.</p> <p>2. Same—Infringement.</p> <p>The Kruttschnitt design patent No. 30,627, for a' design for an ornamental border adapted for use on aluminum sign plates, discloses patentable novelty, and is valid; also held infringed by certain designs used by defendants, and not infringed by others.</p>

<p>In Equity. Suit for infringement of patent. On motion for preliminary injunction.</p>

<p>1. Patents—Construction of Claims.</p> <p>An American patent, which describes in its claims but one form of the device claimed, cannot be construed broadly to cover a different form described and claimed in a foreign patent previously granted to the same Inventor, notwithstanding broad language used in the specification, but must be considered as an abandonment of the prior form.</p> <p>2. Same—Infringement—'Tubular Bells.</p> <p>The Harrington patent, No. 485,542, for an improvement in tubular bells, designed to improve the tone, discloses invention, and was not anticipated; but, in view of the state of the prior art, and especially of prior British patents to the same inventor, must be limited to the particular invention described, which consists of placing one or more stiffening devices within the tube “between its point of suspension and its end.” As so construed, held not infringed.</p> <p>8. Same—Prior Use—Evidence.</p> <p>The defense of prior public use, to defeat a patent, must be established beyond a reasonable doubt.</p> <p>4, Same.</p> <p>A patent is not invalidated because a device similar to that described was previously used by another, but for a different purpose.</p> <p>5. Same—Anticipation—Tubular Bells.</p> <p>The Treat patent, No. 568,816, for a tubular bell, is void for anticipation by the Harrington Biitish patent, No. 2,054.</p>

<p>In Equity. On final hearing.</p>

<p>1. Jurisdiction of Federal Court—Amount in Controversy—Suit for Injunction.</p> <p>In a suit to enjoin defendants from continuing a business in which they have engaged in violation of a contract with complainant, the amount or value in dispute for jurisdictional purposes is the value of the object to be gained by the suit, and not the amount of complainant’s damages, and a federal court has jurisdiction where the value of the plant owned and operated by defendants and the amount of the business done by them annually largely exceeds the jurisdictional amount</p> <p>2. Contracts—Construction—Agreement not to Engage in Certain Business.</p> <p>Complainant’s assignor purchased a number of fishing plants situated along the Atlantic coast from Maine to Delaware, two of such plants having been purchased from defendants, who were joint owners. It paid a considerable sum, in addition to the actual value of the plants, for their good will, under a contract which bound defendants not to engage in the fishing business or the manufacture of certain fish products for the term of 20 years, “upon, along, or off the Atlantic seaboard.” Held, that such prohibition included all the waters adjacent to the Eastern coast of the United States, and was not limited to so much of the coast as lies north of Delaware, nor did it exclude the bays or other indentations along the coast; and that defendants violated the contract by subsequently going into the Chesapeake Bay, and there purchasing and operating a fishing plant from which they conducted fishing operations both within and outside of the bay.</p> <p>8. Same—Violation.</p> <p>The fact that complainant, being a nonresident corporation, was precluded by the laws of the states adjoining the bay from fishing in their waters, did not relieve defendants from the effect of the restriction imposed upon them by the contract as to such waters.</p> <p>4. Same—Specific Enforcement by Injunction.</p> <p>A court of equity will enforce specific performance of a restrictive contract by injunction, where it is apparent from a view of all the circumstances of the case that it will subserve the ends of justice, as where the damages caused by its violation are not susceptible of proof.</p> <p>¶1. Jurisdiction of circuit courts as determined by amount in controversy, see notes to Auer v. Lombard, 18 O. O. A. 75; Shoe Co. v. Roper, 36 O. O. A. 459.</p> <p>See Courts, vol. 13, Cent. Dig. § 890.</p>

<p>1. Removal of Causes—Diversity of Citizenship—Sufficiency of Petition by Corporation.</p> <p>An averment in a petition for removal that defendant is a corporation and a “citizen and resident” of a state named is not the equivalent of one that it is organized under the laws of that state, and such petition Is insufficient to effect a removal on the ground of diversity of citizenship, unless such fact otherwise appears on the record, under the settled rule that the record in the state court, when the petition has been filed therein, must show, by clear and positive averment, that the cause is</p> <p>¶1. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C, C. A. 261. removable, and that the jurisdiction of the state court has terminated, and that of the federal court has attached.'</p> <p>2. Same—Amendment op Petition in Federal Court.</p> <p>Where the record in a state court, after the filing of a petition for removal therein, fails to show facts which are necessary to devest that court of jurisdiction, the federal court into which the record is removed is without jurisdiction to permit the amendment of the petition for removal to supply such facts.</p>

<p>1. Equity—Pleading—Defenses—Laches.</p> <p>The defense of laches may be interposed by plea, answer, or demurrer, or it may be raised on the hearing or preliminary thereto.</p> <p>2. Same.</p> <p>Defendant’s husband sold to plaintiff’s assignor in 1881 all his standing pine timber land on a certain stream in the state of Michigan, together with a certain lumbering outfit, and agreed that, if any land had not been deeded under the contract, deeds to such land would be executed on application. This contract was not recorded until 1887, when it was recorded in one county, and 10 years later a certified copy was recorded in another county. In 1886, 1888, and 1900 defendant, her husband having died in 1885, conveyed certain of the lands to other parties, which plaintiff claimed under the contract, but no action was begun to enforce the same until 1900, though plaintiff’s assignor had full knowledge of the transfer at least eight years earlier. The action brought was dismissed, and at different times between 1890 and 1893 letters were addressed to defendant at the place where she was supposed to reside, but no answers were received, and an attorney employed to locate her was unable to do so; but no other efforts were made to prosecute the claim until the suit in question was instituted in August, 1901. Held, that an application by the plaintiff for leave to file a replication nunc pro tunc after an order dismissing the cause for failure to file the same should be denied on the ground that plaintiff’s claim was barred by laches.</p> <p>8. Same—Limitations.</p> <p>State statutes of limitations, while relevant in federal courts of equity on an issue of laches, are not binding on such courts.</p> <p>. ¶ 3. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. O. A. 548; Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 C. O. A. 553.</p> <p>See Courts, vol. 13, Cent. Dig. § 983; Equity, vol. 19, Cent. Dig. § 242,</p>

<p>Petition for Foreclosure of a Mortgage against a Bankrupt Corporation.</p>

<p>1. Conspiracy to Defraud United States—Indictment—Sufficiency.</p> <p>The indictment in- substance charged that the defendants unlawfully conspired with one Petolicchio to commit an offence against the United States “by causing the violation” of section 5425 of the revised statutes [U. S. Comp. St. 1901, p. 3669], and that such offence “consisted in this, that by their conspiring and inducement” twenty one persons named in the indictment “should obtain, accept and receive certain certificates of citizenship” for themselves “by means of certain false statements, made with intent to procure the issuance of said certificates of citizenship to them”; and that Petolicchio “to effect the object of the said conspiracy” entered into between him and the defendants “did appear before the District Court of the United States for the District of Delaware, and the Superior Court of the State of Delaware, in and for New Castle County, sitting at Wilmington, and did then and there make certain false statements to said courts,'with intent to procure, from said courts, the issuance” to the twenty one persons above referred to “of certain certificates of citizenship under the laws of the United States relating to the naturalization of aliens, which said false statements were then and there well known” by the defendants and Petolicchio “to be false, and which said false statements consisted in this, that said Giovanni Petolicchio then and there made certain statements to the said courts on a matter material to the proceedings then and there depending before the said courts and concerning which the said courts had jurisdiction,” that the twenty one persons above referred to “had resided within the State of Delaware one year at least; whereas in truth and in fact the said” twenty one persons “had not resided within the State of Delaware one year at least, but heretofore lived and now continue to live in the State of Pennsylvania.” Meld, on demurrer, that the indictment was fatally defective, in that the object of the conspiracy as set forth did not involve a violation of section 5425 of the revised statutes [U. S. Comp. St. 1901, p. 3669], or any other offence against the United States.</p> <p>(Syllabus by the Court)</p>

<p>1. Bankruptcy Courts — Property Subject to Jurisdiction — Adverse Claims.</p> <p>A mortgage on property owned and thereafter acquired by a corporation provided that the mortgagee might enter into possession in case of default in the payments of principal or interest for 60 days. Thereafter the mortgagor was adjudged a bankrupt, and on the same day, but prior in time thereto, the mortgagor surrendered to the mortgagee possession of the property, including that acquired after the execution of the mortgage, though there had been no 60-days default in the payments of prin- ' cipal or interest. Held, that the mortgagee was not such an adverse claimant to the property as would bar jurisdiction of the federal court to determine the validity of its claim.</p> <p>2. Same—Sale of Mortgaged Property—Transfer of Ltens.</p> <p>A referee in bankruptcy may direct the manner of sale of property of a bankrupt estate free from liens and incumbrances, preserving and transferring bona fide' liens thereon to the proceeds of the sale.</p> <p>8. Same—Bid by Lienholder—Paymf-nt.</p> <p>A responsible bank held a mortgage on certain property as trustee of the bondholders of the mortgagor. The mortgage covered not' only property owned at the time of its execution, but also subsequently acquired property. On the bankruptcy of the mortgagor, the amount of the property in existence at the date of the mortgage, and conceded to be subject to,its lien, was determined by the referee, who, without determining the validity of the lien of the mortgage on the after-acquired property, directed that the whole of it should be sold free of incumbrances, and the liens transferred to the proceeds of the sale. Held that, in case the mortgagee purchased the property at the sale, it should be permitted to pay therefor by presenting receipts from the bondholders to the extent of the conceded lien, and by giving an approved undertaking in the amount of the undetermined lien, whereby it should agree to pay to the trustee such amount as should be determined to be value of the property subsequently found not to be subject to the lien, or, on the mortgagee’s qualifying as a depositary of bankruptcy funds, it might pay such amount in cash to the trustee in bankruptcy, who should thereupon make a deposit of the same with the mortgagee.</p> <p>¶ 2. See Bankruptcy, vol. 6, Cent. Dig. § 365.</p>

<p>In Bankruptcy.</p>

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

Indictment for Manslaughter. The defendant was delivered to the United States consul at Hayti, who sent him to the United States court in Brooklyn for trial. At the close of the trial the defendant’s counsel moved to dismiss the indictment on the ground that the court had no jurisdiction of the offense disclosed by the evidence, which was committed on a vessel sailing under a registry issued by the military government established by the United States in Cuba.

<p>L Accounting—Trust Relation.</p> <p>Complainant supplied money to M. to invest in stock speculation In M.’s name; complainant not to be known in tbe matter. M. bought and sold on margin through defendant brokers, having several accounts with them, all in his own name, but in some of which complainant was not interested. Held, that there was no trust relation between complainant and defendants, authorizing a suit by him against them for an accounting.</p> <p>2. Same—Parties—Custodians op Joint Funds.</p> <p>Nor are defendants custodians of joint funds, so that they may be made defendants as such in a suit against M. for an accounting, though complainant may have an interest in what M. may receive from them when he settles his account with them.</p> <p>8. Suit—Failure as to Certain Dependants—Retention as to Others.</p> <p>The whole structure of a bill, as well as its specific prayer, showing that it was directed against the defendants other than M. for substantial relief, and that he was joined merely to cut off his rights, it failing against the other defendants, cannot be retained against him for an accounting.</p>

<p>L Actions—Joinder—Pleading.</p> <p>Where a complaint alleged a cause of action for the value of certain stocks and bonds sold by plaintiff to one of the defendants, a second causé of action for services rendered by plaintiff to both defendants, and a third for services to the other defendant alone, it was demurrable for misjoinder of causes of action, under Cutting’s Comp. Ann. Laws, §■ 3159, authorizing joinder of actions against several defendants only when-each case exists against all of the defendants jointly sued.</p> <p>¶ 1. See Action, vol. 1, Cent. Dig. §§ 511, 521, 525, 528.</p>

<p>1. Supersedeas—Liability on Bond—Damages for Violation of Injunction.</p> <p>A supersedeas bond, given under Rev. St. § 1000 [U. S. Comp. St. 1901, p. 712], and supreme court rule 29 (3 Sup. Ct. xvi), does not suspend the operation of a prohibitory injunction granted by the decree appealed from, but, unless otherwise ordered by the trial judge in allowing the appeal, as .authorized by equity rule 93, such injunction remains in full force pending the appeal, and its violation is punishable as a contempt. Hence damages sustained by the appellee by a violation of the injunction pending appeal are not the result of the supersedeas bond, and cannot be recovered in an action thereon.</p>

<p>1. Bankruptcy—Exemption—Form of Claim—Amendment.</p> <p>Under the laws of Pennsylvania and the form of schedule prescribed by the supreme court, the exact property which a bankrupt desires to retain under his state exemption must be set out in his schedule; but, where this is not sufficiently done, the defect may be cured by amendment.</p> <p>2. Same—Fraudulent Disposition of Property—Forfeiture of Exemption.</p> <p>In Pennsylvania one who is guilty of a fraudulent disposition of his property forfeits his right to his state exemption. But this cannot be charged where he has sold it for a fair consideration and with an honest motive, even though it have the effect of leaving nothing for creditors to get hold of. Neither will this view be taken because the debtor uses the proceeds to pay some creditors rather than others, or even devotes a portion to his own needs.</p> <p>8. Same—On the Facts.</p> <p>Where, therefore, a bankrupt continues in business, buying and selling right up to the time he filed his petition, he is not convicted of the fraudulent disposition of his property, so as to forfeit his exemption, although he sold goods in considerable quantities to his immediate relatives, it not being shown that it was not for a fair price; nor because he delivered the goods at night, this being a matter of necessity, and not of concealment; nor yet because he waited to file his petition until after a railroad pay-day, so as to collect in as much as possible of his accounts, paying over the proceeds on a debt due by note to his wife.</p> <p>4. Same—Fraud—Purchases in Contemplation of Bankruptcy—Examination of Bankrupt.</p> <p>Semble, that a debtor is not deprived of his exemption in Pennsylvania because he has debts which were fraudulently contracted; but, even were that the law, the mere purchase of goods while insolvent is not a fraud in that state, although if in immediate contemplation of bankruptcy it might be. But, even where purchases have been made right up to the time of filing the petition, a fraudulent intent will not be inferred where the bankrupt, on whose cross-examination the case is disposed of, has been prevented by the referee from explaining the transaction.</p> <p>¶ 2. See Exemptions, vol. 23, Cent. Dig. § 128.</p>

Habeas Corpus to the Sheriff of Northumberland County, Pennsylvania, in Said District, to Secure the Discharge of the Relator. The following facts were agreed upon as controlling the disposition of the writ: N. h. Rearick, the relator, is an agent of the Citizens’ Wholesale Supply Company, a corporation of the state of Ohio, located and doing business as grocers at Columbus, in that state.

<p>1. Tboveb and Convebsion—Pleading,</p> <p>In an action for conversion of a deposit of tailings from a mine, a complaint alleging that plaintiff’s decedent was “lawfully possessed” of the tailings, and of a certain tract of land described, on which the tailings alleged to have been converted were deposited, at the time of his death, contained a sufficient allegation of ownership to sustain the action.</p> <p>2. Same—Descbiption op Pbopebtt.</p> <p>A complaint for conversion of mine tailings deposited on lands, describing the land as situated in Edgar ravine, in S. county, Nevada, bounded as follows, to wit: Commencing at the end of the sluice of the mill in said ravine, and running thence in .an easterly direction, following the course of said ravine, for 600 feet, with 50 feet of land on the south of said ravine from the center thereof the whole of said length, with 150 feet of land on the north of said ravine from the center thereof the whole of said 600 feet,—and that the tailings consisted of a valuable deposit of mineral concentrations, tailings, and slimes on the land, sufficiently described the property.</p> <p>3. Same.</p> <p>In an action by an administratrix, an allegation that her decedent died intestate, and that on a certain date plaintiff was duly appointed administratrix of decedent’s estate, was not objectionable for failure to allege the date of decedent’s death, and by reason thereof failing to show that deceased did not die until after plaintiff was appointed administratrix of his estate, since such a contingency would not be presumed.</p>

<p>1. Creditors’ Bill—Contribution to Expenses—Order..</p> <p>A creditor of a corporation, filed a bill, in behalf of himself and other creditors who would come in and contribute to the expense of the litigation, to recover property fraudulently transferred by the corporation and to enforce the statutory liability of directors. Under an order requiring creditors, who desired to come in, to prove their claims, certain creditors, including defendants to the suit, who claimed preference by reason of the trust deeds given by the corporation, which the bill sought to set aside as unlawful, proved their claims. Held that, there being no funds to discharge the expense of the litigation, unless recovery was had in the suit, an order requiring all parties who had proved their claims to contribute to the expenses necessary to carry on the suit, failing in which their claims so proved should be stricken and not permitted to share in any recovery, was proper.</p>

<p>Submitted on Motion to Remand to State Court.</p>

<p>. Trade-Marks—Scope—Form and Lettering of Cards.</p> <p>A corporation engaged in manufacturing patented hooks and eyes is not entitled to appropriate the form of the cards on which the hooks were fastened, lettered horizontally between rows of hooks and eyes, In connection with and as a necessary corollary to its trade-mark.</p> <p>3. Same—Unfair Competition—Injunction Pendente Lite.</p> <p>In an action for unfair competition, affidavits in support of a preliminary injunction showed that plaintiff’s trade-mark consisting mainly in the words, “See that Hump?” in connection with the name “De Long,” and that the arbitrary word “Hump” was an essential characteristic by which its goods became known to the public, and that these words were not used by defendant; and that the manner in which defendant dressed its goods on cards, while similar to the cards used by plaintiff, were not such as to mislead an ordinary purchaser. Eeld, that an injunction would not be granted pendente life.</p> <p>¶ 2. Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

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

<p>In Equity. On demurrer to bill. See 114 Fed. 1021.</p>

<p>1. Circuit Courts—Rules op Decision—Following Decision op Superior Court.</p> <p>A decision of the circuit court of appeals that a matter is res judicata by reason of judgments of state courts is conclusive upon a circuit court in which the issue subsequently arises between the same parties or their privies, where the evidence is substantially the same, whatever may have been the intervening decisions of the state courts thereon.</p>

<p>1. Unfair Competition—Preliminary Injunction—Laches.</p> <p>A preliminary injunction to restrain unfair competition will not be granted on conflicting evidence, where complainant had known of the purposes and practices of defendant for a year and a half before commencing suit, during all of which time they were active competitors in business.</p> <p>¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A 165, and Bare v. Harper & Bros., 30 C. O. A. 376.</p>

<p>1. Shipping—Validity of Charter—Authority of Agent.</p> <p>Authority given an agent by a shipowner, who was a nonresident, to “look after” certain barges employed in the general carrying trade, to make contracts for their services, collect freight, etc., is not to be so narrowly construed as to render invalid a charter for the carrying of five cargoes by two of the barges, to be performed within two months, which was accepted and acted upon by the charterer in good faith.</p> <p>2. Same—Waiver of Time by Charterer—Duty of Owner to Make De-</p> <p>fault Good.</p> <p>The owner of certain vessels was in default in the provisions of a charter to carry a number of cargoes within a specified time, and thereupon, the charterer having consented to a substantiál performance within a reasonable period of time not specified, it was incumbent on the owner, in order to avoid the effect of his default, to use reasonable efforts to make good the default, so that the mere fact that certain vessels substituted by him for that purpose might have been subjected to some delay in loading would not justify him in refusing to load after the cargoes were ready and tendered to the vessels.</p> <p>3. Same—Damages for Breach.</p> <p>While negotiations were pending between the owner of vessels in default on a charter party and the charterer, looking to a substantial compliance with the charter, the market for freights advanced. Thereupon, after the negotiations were broken off, the charterer, having been compelled to charter other vessels, was entitled to be compensated in damages on the basis of the intervening advance.</p> <p>4. Admiralty—Effect of Misjoinder.</p> <p>A decree in admiralty will not be reversed on appeal because of a misjoinder of causes of action in the libel, where one was dismissed by the court, either on exceptions or on final hearing, and a -decree on the merits entered upon the other only. Where the final condition of the record is in accordance with the substantial rules of the law, a court of admiralty does not look at the intervening steps.</p> <p>5. Maritime Liens—Breach of Charter.</p> <p>Although the owner may contract in a single charter for the carriage of a number of cargoes by one or by a number of vessels, the vessels themselves are not bound so as to be subject to a lien for a breach of the charter so far as it remains wholly executory; nor are they fin any case bound for each other, or with respect to any cargo not received on board, although they may have entered on a performance of the contract by carrying one or more cargoes.</p>

In the court below there were two independent libels against the German ship Flottbek,—one by the Saginaw Steel Steamship Company, as the owner of the steamship Matteawan, and on behalf of her officers and crew; the other by the Puget Sound Tugboat Company, as owner of the tugs Wanderer, Tacoma, and Holyoke; and on behalf of their officers and crew, for salvage services.

This is a bill seeking to restrain an alleged infringement of a common-law trade-mark, and for the purpose of restraining unfair competition. The complainant is a corporation organized under the laws of Ohio, and bears the corporate name of the Computing Scale Company. It was incorporated in 1891, and its factory is in Dayton, Ohio.

In Admiralty. See 113 Fed. 772. This is a case of collision. The undisputed facts are few. The Queen-Elizabeth, a large sailing vessel, with ballast, was lying at Port Townsend, desiring to be towed to Port Blakely. In pursuance of a towage contract, the tug Tyee, owned by the appellee the Puget Sound Tugboat Company, took her in tow at Port Townsend between 1 and 2 o’clock on the morning of April 14, 1900. She was made fast to the Tyee with a hawser 100 fathoms, in length.

This case passed off below on a demurrer to the bill of complaint, which was once amended before the demurrer thereto was sustained. (C. C.) 112 Fed. 577. The case made by the bill of complaint, as amended, is as follows: The People’s National Bank of Denver, one of the appellees, was incorporated on July 30, 1889, under the national bank act, for the period of 20 years from July 1, 1889, with a capital stock of 8300,000, divided into shares of 8100 each.

The plaintiff, while a switchman in the service of the Pennsylvania Railroad Company, sustained the loss of a leg. For this injury he brought this suit, claiming that his foot slipped from a bent and damaged iron step at one end of a car he was climbing in discharge of his duties, and that his foot was thereby thrown on the rail in front of a revolving wheel and crushed.

See 105 Fed. 41. The United States brought an action of ejectment against the plaintiffs in error to recover the possession of the unsurveyed S. E. of section 7, township 4 N., range 9 W.; the said land being included in a reservation made by the president of the United States on December 20, 1892, pursuant to section 24 of the act of congress approved March 3, 1891 (26 Stat. 1103 [U. S. Comp.

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

The appellee was an able-bodied seaman, and one of the crew of the American ship Iroquois, laden with general merchandise, on a voyage from New York to San Francisco. On February 23, 1900, while assisting in furling the main sail during a gale, he accidentally, and without fault of his own or fault of the ship, fell from the main yard to the deck, and sustained a fracture of two ribs and of both bones of his right leg below the knee.

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

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

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

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

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

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

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

<p>Petition to Revise Proceedings in the District Court of the United States for the Southern District of Georgia, in Bankruptcy.</p>

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Northern District of Texas. W. M. Sleeper, for appellant.</p>

<p>Appeal from a decree of the United States circuit court for the Southern district of New York holding invalid letters patent No. 29,350, granted to Harry Feder for a design for skirt binding. The opinion of the court below will be found in 105 Fed. 628.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York. Appeal from a decree of the circuit court, Eastern district of New York (111 Fed. 906), dismissing bill for alleged infringement of United States patent No. 311,325. to Admiral John A. Howell, January 27, 1896, for improvements in marine torpedoes. The defendant uses what is known as the “Obry Steering Gear.”</p>

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

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

Petition to Review an Order of the District Court of the United States for the Western District of New York. This cause comes here upon petition to review a decision of the district court sustaining the claim of the Berlin Machine Works to receive specific personal property, or its value, which property was in the possession of the bankrupt under a contract of sale which specifically provided that title should not pass till payment for the same was made.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Final Hearing on Pleadings and Proofs.</p>

<p>Petition of Ezra Lippincott.</p>

<p>Appeal by the Importers from a Decision of the Board of General Appraisers Which Affirmed the Classification by the Collector of the Importation in Question.</p>

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

<p>For former opinions, see 103 Fed. 491, and 113 Fed. 594.</p>

<p>In Equity. Suit for infringement of patents. On motion for leave to take testimony in surrebuttal.</p>

<p>Motion to Compel a Bank of Deposit to Turn Over Balance to Receiver.</p>