Volume 119 — Federal Reporter

Joe P. Matthews was adjudicated a bankrupt by the district court of the United States for the Western district of Arkansas, and in the course of such proceeding A. A. McDonald, one of the appellees, was appointed trustee of his estate.

These are actions at law to compel the payment of marine insurance.

This action was brought to recover on certain bonds. Held: decided, and adjudged that all legislation in Ohio similar to the said act of March 26, 1890, was unconstitutional and void.” To this answer a demurrer was filed by the plaintiff, which was sustained by the court. No further pleadings being filed, a judgment was rendered for the plaintiff upon the bonds and coupons.

<p>.1. Mining Claims—Marking Location—Statutory Requirement.</p> <p>Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1426], which provides that in marking a mining claim “the location must be distinctly marked on the ground so that its boundaries can be readily traced,” does not require the boundary lines to be indicated by physical marks or monuments, nor define what kind of marks shall be made, nor on what part of the ground claimed; but any marking, whether by stakes, mounds, monuments, or written notices, whereby the boundaries can be readily traced, is sufficient:</p> <p>2. Same—Record of Location Notice—Oregon Statute.</p> <p>Under St. Or. Oct. 14, 1898, providing for the recording of notices of the discovery and location of mining claims, it is not essential to the validity of a location that the record should be a literal copy of the notice posted on the claim, but it is sufficient if it is a substantial copy.</p>

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

<p>1. Accident Insurance—Construction oe Policy—Notice oe Accident.</p> <p>An accident policy, insuring only against “physical bodily injury resulting in disability or death,” contained a provision that “notice of the accident causing the disability or death shall be given in writing * * * within 15 days from the date of the accident causing the disability or death, * * * and failure to ■ give such notice* within said time shall render void all claims under this policy.” Held, that under such policy the time for giving notice did not commence to run until either disability or death resulted from an injury, until which time there was no “accident causing disability, or death,” which brought the case within its-terms, and that where an insured received a blow on the head which did -not cause disability at the time, and was regarded as a trivial injury, but which resulted a few days later in both disability and death, a notice given four days after his death and within 10 days after his disability was in time.</p> <p>8. Same—Accident Producing Death—Immediate Disability.</p> <p>An accident policy provided that the insurance thereunder should “extend only to physical bodily injury resulting in disability or death, * * * effected * * * solely by reason of and through external, violent, and accidental means, * * * which shall, independently of all other causes, immediately, wholly, totally, and continuously from the date of the accident causing the injury disable the insured, and prevent him from doing and performing any work,” etc. It further provided that there should be no liability for more than one of the losses specified, on payment for any one of which the policy should terminate, and the first loss specified was “loss of life occurring within 90 days from the date of the accident causing the fatal injury.” Held, that such provisions could not be construed to exempt the insurer from liability for death resulting from an accidental injury within 90 days, because such accident did not produce “immediate, total, and continuous” disability.</p> <p>If 2. Risks and causes of loss under accident insurance policies, 'see note to Society v. Dolph, 38 C. C. A. 3.</p>

This is the second appearance of this case in this court. The judgment on the first trial was reversed, because in an action for the recovery of damages for the conversion of timber a verdict and judgment for the recovery of lumber and logs were rendered without any pleading of such a cause of action, or any prayer for such relief.

<p>1. Appeal—Questions Review able on Second Appeal—Law op Case.</p> <p>Where the action of a trial court in a certain respect was specifically assigned as error in the appellate court, and was approved, at least by implication, the trial court is justified in following the same course on a second trial, and its action in so doing will not be again reviewed on a second appeal.</p> <p>3. Injury op Servant—Notice op Starting Machinery—Customary Manner op Operation.</p> <p>One employed as off-bearer in a sawmill, his duty being to remove the hooks from the log or cant after it has been placed on the carriage, is not entitled to notice when the carriage is about to start, where it is uniformly started as soon as the hooks are removed, and he has been engaged at the work a sufficient length of time to know such fact.</p> <p>8. Instructions— Conpormity to Issues.</p> <p>Where the complaint, in an action by a servant against the master to recover for an injury, alleged that such injury occurred through the negligence of a fellow servant who was “habitually careless and negligent,” which fact was known to defendant, and plaintiff introduced evidence of other alleged acts of negligence to sustain such allegation, it was not error to charge that to authorize a recovery the jury must find that the fellow servant was habitually careless, and that defendant knew or should have, known such fact.</p>

This was a proceeding by habeas corpus. An indictment was returned against J. P. Stewart, the appellant, and against Robert Boatright, E. E. Ellis, Tj. B. Gillett, and G. O. Stansbury, on November 15, 1901, in the district court of the United States for the district of Kansas, Third division, charging them with an offense under section 5480 of the Revised Statutes of the United States [U. S. Gomp.

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>This suit was removed to the circuit court of the United States for the district of Montana from the district court of the Second judicial district of that state for the1 county of Silver Bow, by the Amalgamated Copper Company, upon the ground that as to that corporation the case presents a separable controversy. The suit is brought by the appellant, John MaeGinniss, against the Boston & Montana Consolidated Silver Mining Company, a corporation, hereinafter designated as the Boston & Montana Company, and the Amalgamated Copper Company, a corporation, and certain named persons who were the. officers of said respective corporations. The complaint alleged, in substance, that the Boston & Montana Company is a corporation organized, prior to the year 1898, under the laws of Montana, for the purpose of purchasing, acquiring, holding, mining, and operating mines and mining claims in said state, and owning and operating smelters and reduction works in connection therewith, and purchasing and owning such real and personal property as might be necessary to carry on its said business; that its capital stock is 150,000 shares, of the par value of $25 per share; that it has acquired valuable mines and has engaged in profitable mining business and has paid large dividends to its stockholders; that its officers and directors claim and assert that the property, business, franchises, and rights of the said corporation are of the value of more than $56,000,000; that the appellant, the plaintiff in the suit, is a citizen and resident of Montana, and is the owner of 100 shares of the stock of said corporation, and that he brings the suit in his own behalf and for the benefit of all other stockholders who may desire to join therein; that during the year 1898 the directors and officers of said corporation, without the consent of the appellant and without right, entered into an agreement with a large number of said stockholders whereby they obtained their consent to the sale, transfer, and assignment of all the property and rights of the corporation to a corporation of like name organized and existing under the laws of the state of New York, but such transfer and delivery of possession was without right, and in violation of the rights of the stockholders who had not consented thereto, one of whom was the appellant; that the appellant purchased his stock because of its known value, and because the corporation was a Montana company, subject to the laws of that state; that in June, 1898, the appellant and James Forrester, who also owned 100 shares of such stock, commenced an action in the district court of the Second judicial district of the state of Montana in and for Silver Bow county, on their own behalf and for the benefit of other stockholders, against the said Boston & Montana Company, the New York corporation, and the officers and directors of the same, and certain other persons, as defendants, for the purpose of having said transfer and conveyance to the New York corporation declared null and void, and enjoining the latter from carrying on mining operations in said mining property, and to have a receiver appointed to take charge of said property and to compel the return of all thereof to the Montana corporation of that name; that an injunction was granted in said case, and afterwards a receiver was appointed, who took charge of the property, and upon a hearing in the supreme court of Montana, upon an appeal from the order of the district court granting the injunction, it was held that the acts complained of by the plaintiffs in said action against the corporation, its officers and trustees, were ultra vires, and it was adjudged that the Montana company had no right or authority, without the consent of all its stockholders, to transfer or dispose of all its property or assets; that thereafter all the property belonging to the Boston & Montana Company in the state of Montana was taken possession of by it, and that it thereafter continued to mine its property and conduct its business as before and to pay large dividends to its stockholders; that the purpose of the transfer to the New York corporation was to terminate the existence of the Montana corporation, and to take away the jurisdiction of the courts of Montana, for the reason that the laws of that state were more favorable to mineral stockholders than were the laws of New York; that thereafter, for the purpose of taking the management of said property and business away from the jurisdiction of the laws and courts of Montana, the officers and a majority of the stockholders agreed together and interested themselves in procuring legislation to that end, and procured the passage of an act of the legislative assembly of the state of Montana for the purpose of enabling a transfer and giving such control and management without the consent of all the stockholders, and thereafter, and fearful that such act might be held unconstitutional, and seeking to evade the decision of the supreme court above- referred to, the directors of the corporation, acting with certain other persons, and under an agreement with a majority of the stockholders, and under an agreement with certain stockholders and officers of certain other Montana corporations, organized the defendant the Amalgamated Copper Company under and by virtue of the laws of the state of New Jersey, with its principal office and place of business in that state, for the purpose of creating a trust, and controlling the production and sale of copper and other metals, and that pursuant to that purpose the Amalgamated Copper Company has purchased, and now owns and controls, either directly or through the agency of trustees, all the shares of the capital stock, except organizers’ shares, in the following corporations organized under the laws of Montana, to wit, the Washoe Copper Mining Company, the Colorado Smelting & Mining Company, the Big Black Foot Milling Company, the Diamond Coal & Ooke Company, the Parrot Silver & Copper Company, the Anaconda Copper Mining Company, and 10,000 shares of the capital stock of the defendant the Boston & Montana Company, and more than 90 per cent, of the capital stock of the Butte & Boston Consolidated Mining Company, a corporation organized under the laws of the state of New York, and owning numerous mines and a smelter in the state of Montana, and a majority of the capital stock of the Hennessey Mercantile Company, a corporation organized under the laws of the state of Montana, and owning valuable property therein, and carrying on a mercantile business therein; that the Amalgamated Copper Company was organized with a capital stock of $75,000,000, consisting of 750,000 shares, of the par value of $100 each; that thereafter it increased is capital stock to $155,000,000, the purpose of which increase was to enable it to trade shares for acquiring the control of a majority of the shares of the capital stock of the Boston & Montana Company and of the Butte & Boston Consolidated Mining Company, above mentioned, and to control and direct the management thereof, and to appoint or elect officers and agents who would obey the orders and directions of said Amalgamated Copper Company. The appellant alleged, upon information and belief, that the directors of the Boston & Montana Company have agreed together and with the holders of a majority of the capital stock of that corporation to- transfer, assign, and set over unto the Amalgamated Copper Company'three-fourths of the capital stock of the Boston & Montana Company, for the purpose of giving the control, management, and direction of its business to the said Amalgamated Copper Company, and the latter corporation has, in pursuance of said agreement, acquired and now holds more than 90 per cent, of said capital stock of the Boston & Montana Company, and the directors of said latter company have agreed and bound themselves to act with reference to all matters pertaining to their corporation, its property and its business, as the Amalgamated Copper Company shall order and direct, and that the Amalgamated Copper Company procured said shares of stock of the Boston & Montana Company by exchanging with the officers and shareholders thereof at the rate of four shares of the stock of the Amalgamated Copper Company for one share of stock in the other company. And the appellant further alleged that said Amalgamated Copper Company has not complied with the laws of the state of Montana to enable foreign corporations to do business in that state, but that it is now in full management and controi of the Boston & Montana Company, and of all its property, business and affairs, as well as of all other mining companies above mentioned; that the Amalgamated Copper Company is not entitled to hold, own, or control any property or rights in the state of Montana or to carry on or conduct or direct any business therein, but all its aforesaid acts are in'violation of section 20, art. 15, of the constitution of the state of Montana, and of sections- 321 and 984 of the Penal Code of Montana. And the appellant alleged, on information and belief, that it is not the intention of the Amalgamated Copper Company to comply with the laws of the state of Montana allowing foreign corporations to carry on business within that state, or with any law of that state; and that at the time when the said Amalgamated Copper Company obtained possession of the stock of the Boston & Montana Company the latter company was possessed of money in the sum of 86,000,000, of which the appellant and others similarly situated were entitled to their respective shares as stockholders of said company, but that the directors of the company, without right and against the authority and consent of the appellant, delivered over said money to the Amalgamated Copper Company, which company has converted the same to its own use. The appellant further alleged that the mining corporations above mentioned, organized under the laws of the state of Montana, including the Boston & Montana Company and also the Butte & Boston Consolidated Mining Company, organized under the laws of New York, had each a large number of valuable mines and mining claims in Silver Bow County; that a large number of the claims of the Boston & Montana Company are situated adjacent to or in the vicinity of mines belonging to the other companies; that the appellant is informed and believes that mine workings have been extended into the mines and mining claims of the Boston & Montana Company from other mines, and will hereafter be extended therein, and that one of the purposes of the organization and existence of the Amalgamated Copper Company and of its acquisition and control of the stock of the other companies was and is to arbitrarily determine what veins and ore beds belong to the respective claims and property owned by each of said mining companies and corporations, without the consent of the corporation or their stockholders, and to thereby devote to its own use and benefit such ore and minerals, and credit the same as an income from the property of such corporations; that the object and purpose of said Amalgamated Copper Company in acquiring the stock in the corporation above named was to control the output and price of minerals from the mines of all, and it will hereafter so conduct the mining operations in all as to affect the production and price of metal therefrom, and will charge against the appellant and other stockholders similarly situated an excessive amount for mining and disposition of the ores credited to the Boston & Montana Company, and that it has the power to shut down all or any of the mines controlled by it in Montana, and to close any or all of its smelters, or to permit the mines of the Boston & Montana Company to be worked by the other corporations, all to the great and irreparable injury of the appellant. The relief prayed for was (1) that it be adjudged and decreed that the Amalgamated Copper Company, its officers and agents, have no right to any of the shares of the capital stock of the Boston & Montana Company; that the same be canceled and surrendered up to the latter company; that the Amalgamated Copper Company, its officers, agents, and trustees, be enjoined from voting any of said shares, and that they be enjoined from ordering, directing, or controlling any of the officers and agents of the Boston & Montana Company with reference to property, business, or affairs of said company; (2) that the Boston & Montana Company, its officers, agents, and representatives, be enjoined from making Or allowing any transfer on the books of that corporation of any of the shares of the stock now held or which may be procured by the Amalgamated Copper Company, or its officers or agents, and from allowing or permitting any of said shares to be voted by the Amalgamated Copper Company, its officers or agents; (3) that the directors of the Boston & Montana Company be enjoined from acting as directors or officers thereof; (4) that the said exchange of stock between the two said companies be declared null and void, and set aside and vacated, and that all moneys belonging to the Boston & Montana Company be accounted for and paid over to that company or its receiver; (5) that the Amalgamated Copper Company be declared a trust and monopoly, and that it be forever enjoined from carrying on any business with the property of the Boston & Montana Company, within the state of Montana or otherwise, or In any wise Interfere, therewith, or doing any business whatsoever within said state, either directly, or by the acts or assistance or advice of any person or corporation whatsoever; (6) that a receiver for all the property and business of the Boston &■ Montana Company be appointed; (7) that an injunction be granted the appellant pending the final determination of the suit to prevent any unlawful act upon the part of the defendants and to preserve his rights as a stockholder in the Boston & Montana Company.</p> <p>After the removal of the cause from the state court to the circuit court a motion was made to remand upon the ground that no separable controversy, exists as to the removing corporation. The motion was denied. Thereafter, upon the application of the appellees, and upon the ground that a prior suit was pending in the state court between the same parties, involving the same subject-matter, the circuit court enjoined the appellant from further prosecuting the present suit. From that injunction order the appeal is taken. One of the grounds of error relied upon by the appellant is that the circuit court erred in denying the motion to remand.</p>

This case passed oil below on a demurrer to a second amended bill of complaint, which demurrer was sustained; whereupon the complainants submitted to a decree dismissing the bill, and appealed.

<p>Appeal from the District Court of the United States for the District of South Dakota.</p> <p>Henry H. Platts, a retail merchant of Egan, S. D.; on December 8, 1899, borrowed of the appellant bank $600 on his promissory note, payable in six months, secured by. chattel mortgage upon Platts’ stock of merchandise, except groceries. This mortgage was recorded August 10, 1900. In the meantime six months’ interest was paid June 8, 1900, and the note was then extended, by writing indorsed thereon, for another six months. On November 2, 1900, Platts borrowed of appellant bank the further sum of $500, and took up his previous note, and then executed to said bank his 11 new promissory notes, for varying amounts, but in all aggregating $1,100, and payable one on the last day of every month from that date until September 30, 1901, with annual interest at 12 per cent., all secured by another chattel mortgage, made November 2, 1900, covering Platts’ entire stock of merchandise and his store fixtures, and any additions to or replacements of the stock, and was</p> <p>further to secure all further advances that might be made to Platts by the bank. And thereby Platts further agreed to make daily deposits of all sales of goods, to apply on the notes so secured, until all should be paid. This chattel mortgage was recorded November 8, 1900. From the giving of the first chattel mortgage until Platts’ business was closed by the proceedings in bankruptcy, he dealt with said bank as an ordinary depositor, depositing therein from the proceeds of his sales at least $2,500, of which from $300 to $400 was so deposited after November 2, 1900. He paid therefrom on his debt to the bank, aside from the interest so paid in June, only one note, for $75, which was secured by the last mortgage, and due November 30, 1900, but not paid till December 8, 1900. All the rest of such deposits were, with the consent of the bank, paid out on checks of Platts, and used to pay other creditors, or for other uses. Upon the petition of creditors, filed December 13, 1900, Platts was adjudicated a bankrupt January 3, 1901, and the appellee, George Rice, was thereafter duly appointed trustee of his estate in bankruptcy; and, by order of the court, the stock of merchandise of the bankrupt was sold free of incumbrance. On the petition of the bank an order was made that the trustee show cause why the claim of the bank, secured by the chattel mortgage, should not be paid in full from the proceeds of the-property so sold. The referee in bankruptcy, to whom the matter was referred, heard the testimony and made his findings of fact, and, upon his conclusions of law therefrom, made his decision and order in favor of the-bank. On request of the trustee, the referee certified the questions involved, with the testimony, findings of fact, and his legal conclusions, to the judge, for review. Upon full hearing before the judge, it was on August 20, 1901, ordered and adjudged that the order of the referee requiring the trustee to pay to the Egan State Bank the amount secured by said chattel mortgage of November 2, 1900, be vacated and set aside, with the findings of fact and conclusions of law on which said order was based, and further that such chattel mortgage is null and void, and no lien on the assets in the hands of the trustee. From this judgment or decree this appeal is taken. A fuller report of the case in some particulars, especially in respect to the findings and conclusions of the referee, will be found in the decision of the learned judge of the district court. In re Platts (D. O.) 110 Fed. 126.</p>

<p>1. National Banks—Action by Receiver to Recover Assessments—Complaint.</p> <p>A complaint in an action by the receiver of a national bank to recover an assessment from a stockholder sufficiently shows the capital stock of the bank, although not directly alleged, where it alleges that there were 500 shares, of the par value of $100 each, and that the assessment was made ratably, at $100 per share, and amounted to $50,000.</p> <p>2. Same—Notice of Assessment—Evidence.</p> <p>The testimony of a witness that in his capacity as receiver of a national bank he made personal demand upon a stockholder for the payment of an assessment, and that the stockholder admitted having received notice thereof, where uncontradicted, sufficiently shows notice and demand to support an action to recover the assessment.</p> <p>3. Same—Authority to Sue.</p> <p>Specific authority given by the comptroller to the receiver of a national bank to bring an action against a stockholder to recover an assessment is not withdrawn, or affected by a'subsequent general authority to compromise or sell all the claims or assets of the bank.</p> <p>4. Same—Defenses—Prior Action by Receiver.</p> <p>An action brought by the receiver of a national bank against a stockholder to enforce a compromise agreement entered into for the settlement of the stockholders’ liability for an assessment, but in which the receiver took a voluntary nonsuit, is not a bar to a subsequent action to recover the assessment, the stockholder having failed to carry out the compromise agreement, nor did the receiver’s action in commencing such suit create an estoppel against him.</p>

<p>1. Indians—Suits for Allotment of Lands—Special Jurisdiction of Circuit Court.</p> <p>Act Aug. 15, 1894 (28 Stat. 305), confers on a circuit court of the United States jurisdiction to decree relief to an Indian, entitled under the law to an allotment of certain lands, of which right he has been deprived by the rulings of the land department.</p> <p>2. Same—Parties.</p> <p>The provision of such act, that the decree of the court in favor of a claimant in a suit brought thereunder shall have the same effect as an allotment allowed and approved by the secretary of ttfe interior, is in effect a consent upon the part of the United States to be bound by such decree; and, where the suit involves simply a question of priority of right between two claimants, the United States is not a necessary party.</p> <p>8. Same—Equities between Allottees—Priority of Selection and Improvement.</p> <p>It was the intention of congress by Act March 3, 1885 (23 Stat. 340), •providing for the allotment of lands in severalty to members of the Walla Walla and other Indian tribes, which gave them the right to select the land they wished allotted to them, that, where more than one person selected the same land, the allotment should be made with reference to priority of selection, residence, and improvement, in accordance with the principle which has always been recognized in the disposition of public lands; and an Indian woman of the tribe, who selected and improved land with the consent of the tribal authorities, but whose right to an allotment was erroneously denied by the land department, cannot be deprived of her prior right to the land, so selected and improved, after such ruling has been reversed, by the fact that it had been subsequently allotted to another member of the tribe, who was put in possession, but who had full knowledge of her claim; nor is she estopped to assert her preferred right by the fact that she afterwards accepted a different allotment, with the understanding and on the assurance of the agent that it would not prejudice her right to claim that selected.</p> <p>4. Same—Bight to Allotment—Besidence on Beservation.</p> <p>Complainant, who was a full-blooded Indian woman of the Walla Walla tribe, did not forfeit her right to an allotment of land, in severalty under Act March 3, 1885 (23 Stat. 340), because at the time the census list of those entitled to allotments was made up she was residing with her family outside the reservation, but on lands which members of the tribe were accustomed to occupy for hunting, fishing, or pasturage purposes, and which they were given the right to so occupy by treaty with the United States.</p>

<p>1. Shipping—Demise of Vessel for Term—Liability of Owner for Wrongful Acts of Officers.</p> <p>By a charter of a steamship the entire ship was let and delivered to the charterer for the term of four months, under the express and distinct agreement that he should have full charge of her and be entitled to all her earnings; that all of the officers of the vessel, including the master, engineer, and steward, who were to be appointed by the owner, should be “in all respects under the order and direction” of the charterer, and subject to removal on his complaint; that he should redeliver the ship to the owner at the expiration of the term in as good order and condition as she was at the time of the agreement, with certain exceptions of usual wear and tear and damages arising from sea perils and inevitable casualties. It further provided that in case the charterer should fail to pay the rental at the times specified, or the operating expenses, including wages, the owner should have the right to retake possession, and that on his request the master should take and hold possession of the ship as his representative. Held, that such charter constituted a demise of the vessel, and that neither the master nor steward could be regarded as agents of the owner during the life of the charter, so as to charge him or the vessel with liability to the charterer on account of their alleged wrongful acts.</p>

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

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

<p>1. Receivers—Appointment—Validity of Order.</p> <p>Where the appointment of a receiver depends on whether the bill contains allegations justifying equitable cognizance, an order appointing the receiver is not void, though the determination of the sufficiency of the bill was erroneous.</p> <p>2. Same—Pleading.</p> <p>Where a bill alleged that complainant was entitled to one-half of a crop of flax, and that defendant was engaged in removing the entire crop beyond the jurisdiction of the court and disposing of it, and that the party liable to plaintiff on the contract was insolvent, the bill was sufficient to warrant the appointment of a receiver to take possession of and preserve the crop pending the litigation.</p> <p>S. Same.</p> <p>Where a bill for the appointment of a receiver alleged that plaintiff was entitled to one-half of the proceeds of a crop of flax, and that defendant was engaged in removing the entire crop beyond the jurisdiction of the court, and disposing of it while the party liable to complainant on the contract was insolvent, an answer merely alleging that defendant was willing to pay .complainant what the court should find him entitled to on a contract with another for a sale of the land, if complainant would execute to defendant a warranty deed of the land, was irrelevant, and insufficient to prevent the appointment of the receiver.</p> <p>4. Same.</p> <p>An-order appointing a receiver is not invalidated by reason of the fact that the amended bill was not verified, where no objection on that ground was taken at the time.</p> <p>5. Same—Prior Appeal—Objections—Failure to Urge Fact.</p> <p>Where a prior appeal was taken in an action in which a receiver was appointed, and no objection was made thereon to such appointment, no objection to the propriety or regularity of such appointment could be made on a subsequent appeal.</p> <p>6. Same—Funds in Receiver’s Hands—Interest.</p> <p>Where it was determined on appeal that the appointment of a receiver at complainant’s instance was erroneous, defendant is .not entitled to recover from complainant interest on funds held by the receiver pending, the litigation, such funds being in the custody of the court.</p> <p>7. Compensation of Receiver—Payment from Estate.</p> <p>Where the appointment of a receiver was proper when made, and defendant throughout the proceedings acquiesced in the receivership, and' such receiver was efficient in caring for and disposing of the property, obtaining therefor much more than would have been obtained by defendant, his compensation should be paid from the proceeds, though it was subsequently determined that his appointment was erroneous.</p>

The defendant in error, a New Jersey corporation, brought this action against the plaintiff in error, a corporation of the state of Missouri, to recover the contract price for specified quantities of different preparations or products of Trinidad asphalt, alleged to have been consigned and delivered by the plaintiff to the defendant on defendant’s orders and under a contract in writing between the parties entered into April 8, 1899, which is set forth in full in the petition.

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

This action was brought to recover the amount alleged to be due on two promissory notes delivered to the plaintiff by Rothwell, the defendant in error, and John Lovett, as joint makers,—one for the sum of $2,000, and dated February 23, 1899, and one for $1,000, dated March 27, 1899, and due respectively in 90 days from date. Service of process was made upon Rothwell, but Lovett was not served.

<p>1. Appeal Bond—Superseding Sale of Real Estate—Rents and Profits Recoverable as Damages.</p> <p>Tbe obligee in a bond, wbicb supersedes an order confirming a sale of real estate, and directs tbe immediate execution of a deed and delivery of possession thereof to tbe purchaser, is entitled, after that order has been affirmed on appeal, to recover as damages for the breach of the obligation of the bond the value of the use and possession; that is to say, in this case, the rents and profits of the real estate during the time the purchaser is kept out of the possession and use of the real estate by the supersedeas bond and the appeal in which it was allowed.</p> <p>51 Same—Any Judge Authorized to Sign Citation May Approve.</p> <p>The appeal bond taken under Rev. St. §§ 1000, 1012 [U. S. Comp. St. 1901, pp. 712, 716], may be approved by any judge or justice who is authorized, to sign the citation and to allow the writ of error or appeal. It is not essential to its validity that it be approved by the justice or judge who allows the writ of error or appeal or signs the citation.</p> <p>¶ 2. See Appeal and Error, vol. 2, Cent. Dig. § 2061.</p> <p>(Syllabus by the Court.)</p>

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

<p>In Error to the District Court of the United States for the Northern District of California.</p> <p>The United States, in an action against the plaintiff in error, the Abner Doble Company, a corporation, alleged, in substance: That on March 8, 1892, William Murray imported into the United States at San Francisco from Liverpool 2,779 bars and 2,051 bundles of Swedish charcoal iron, which was subject to the payment of a duty of $2,341.50 under the tariff act of October 1, 1890. That on March 14, 1892, William Murray made warehouse entry of said merchandise, and on March 15, 1892, the merchandise was placed in a bonded warehouse, upon the execution and delivery of a warehouse bond therefor by William Murray as principal and R. B. Hui as surety. That said merchandise remained in the bonded warehouse for more than three years from the date of its original importation, and on Biarch 8, 1895, became abandoned to the United States, and subject to sale as such. That on March 15, 1895, the plaintiff in error made final withdrawal entry for consumption of said merchandise, and withdrew the same from bond, and on April 24, 1895, duties thereon were finally ascertained and liquidated by the collector at the sum of $2,341.50, pursuant to law and the regulations and practice of the treasury department. That no notice of objection or protest was given to said collector of such liquidation or ascertainment of duties. That there has been paid upon the withdrawal of such merchandise from bond the sum of $2,291.32 on account of said duties, leaving a balance payable of $50.18, for which judgment was demanded. The plaintiff in error demurred to the complaint upon the grounds that it failed to state facts sufficient to constitute.a cause of action, that the cause of action is barred by the provisions of the act of congress of June 22, 1874, and that the complaint is ambiguous and uncertain. The demurrer was overruled, and, the plaintiff in error failing to answer, judgment was rendered as sued for. It is assigned as error that the court held the plaintiff in error liable for duties for merchandise imported by William Murray; that the court ruled that the cause of action is not barred by the-provisions of the act of congress of June 22, 1874; that the court ruled that the complaint is not uncertain, in that it fails to set forth why the duties on merchandise were not ascertained at the time when the plaintiff in error made final withdrawal, or to set forth the reason why the duties on the merchandise referred to were not ascertained at that time; and that the-court erred in determining that the complaint states facts sufficient to con* stitute a cause of action.</p>

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

<p>A, Railroads—Injury at Crossing—Contributory Negligence.</p> <p>The driver of a team who, after crossing a side track filled with box cars, which obstructed the view, drove upon the main track of a railroad 50 feet distant, without looking or listening for a train, was guilty of negligence as matter of law.'</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Eastern District of Michigan.</p> <p>In Equity. Suit for infringement of reissue patent No. 11,607 (original No. 361,934) granted to Otto Ewert June 15, 1897, reissue No. 11,601 granted to William R. Jeavons May 18, 1897, and reissue No. 11,592 granted to Atwell J. Blackford March 2, 1897, each for improvements in vapor burners. From a decree dismissing the bill, complainant appeals.</p>

The writ of error in this case challenges the trial of an issue involving the rights of the respective parties to the action to the possession of the space within the bore of a tunnel where it passes' through two lode mining claims beneath the surface of the earth.

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

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

<p>1. Patents—Infringement—Electric Motors.</p> <p>The Thomson patent, No. 430,328, for an alternating current motor, in View of the fact that the broad claims of the original application were rejected by the patent office and erased, and that no machine was ever built thereunder, is entitled to only a narrow construction as against an alleged infringer. Claims 1 and 2, as so constfued, held not infringed.</p>

In Equity. Suit for infringement of reissued patent No. 11,250 (original No. 433,637), for an electrical measuring instrument, granted to Edward Weston, June 28, 1892, and of letters patent No. 470,-340, granted to the same inventor, March 8, 1892, for an improved coil for such instrument. On final hearing.

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

<p>In Equity. Suit for infringement of letters patent No. 441,846, for a paper tube, granted to Daniel N. Hurlbut December 2, 1890. On final hearing.</p>

<p>1. Patents—Suit for Infringement—Evidence.</p> <p>Where a patent sued on is intelligible without evidence, but defendant introduces expert testimony, it is proper for complainant to introduce the same kind of testimony in rebuttal.</p> <p>2. Same.</p> <p>Where defendant has not denied under oath the making and selling of the articles offered in evidence by complainant to prove infringement, evidence which establishes a strong probability of such fact is sufficient to make a prima facie case.</p> <p>3. Same—Bottle Stoppers.</p> <p>The Hutter patent, No. 491,113, for a bottle stopper, held valid and infringed.</p> <p>4. Same—Design for Bottle Stoppers.</p> <p>The Hutter design patent, No. 25,435, for a design for a bottle stopper, held valid and infringed.</p>

<p>°1. Oil Lease—Unauthorized Alteration—Waiver of Objection.</p> <p>After the execution of an oil lease for the term of five years, covering a number of tracts of land, the lessee discovered that certain heirs owned an interest in one of the tracts, and secured their signatures to the lease by making an interlineation therein giving them the right to receive their share of the royalty. The original lessor had no knowledge of the interlineation at the time, but was shortly thereafter advised of it, and made no objection, but throughout the term insisted on the performance of the contract by the lessee, and accepted the royalties thereunder. Held, that he thereby waived the right to insist on the invalidity of the lease because of the alteration.</p> <p>2. Same—Parties—Persons not Named in Body of Instrument.</p> <p>Under the law of West Virginia a person whose name is not mentioned in the body of a lease is not a party thereto, nor bound thereby as a grantor, although he signs and acknowledges it as his deed.</p> <p>8. Same—Power to Grant—Tenant by the Curtesy.</p> <p>A tenant by the curtesy cannot convey the right to a lessee to extract oil from the land, and a lease executed by him purporting to convey such right is void.</p> <p>4. Same—Right of Lessee to Extension of Term—Failure to Develop Property.</p> <p>Defendant executed to complainant’s assignor an oil and gas lease on royalty covering 74 acres of land, which was to run for the term of five years, and as much longer “as oil or gas was found in paying quantities.” It required the lessee to complete a well thereon within three months, which he did, but drilled no other wells, and made no serious effort to do so during the five years, although he was repeatedly requested to do so by the lessor. The well drilled was a small producer, and was pumped at intervals, only, during the last year or two of the term, not producing enough to pay the expense of pumping. Held, that the' lessee did not comply with the implied condition of the lease, which required him to develop the property in good faith; and that a court of equity would not sustain and enforce the lease in his behalf after the expiration of the five years, as against the lessor and others to whom he had leased after that time, and who had rendered the property productive.</p> <p>¶1. See Alteration of Instruments, vol. 2, Cent. Dig. §§94, 105.</p>

<p>1. Equity Pleading—Answer as Evidence.</p> <p>Unless answer under oath is expressly waived in the bill, such answer, if responsive, is evidence on behalf of the defendant, and to overcome it complainant must have at least one sustaining witness and corroborative circumstances.</p> <p>2. Evidence—Testimony of Party Called by Adversary.</p> <p>The Pennsylvania act, permitting a party to be called and examined “as on cross-examination,” has no application in a suit in equity in a federal court, and a party so called and examined therein becomes a witness for the party calling him, and his testimony is to be given weight accordingly.</p> <p>8. Corporations—Validity of Stock—Issuance in Payment for Services.</p> <p>Complainant corporation by resolution of its board of directors, passed shortly after its organization, issued over one-half of its stock to defendant, who was its president, in consideration of services rendered by him in obtaining contracts and options on property, all of which were turned over to the corporation, and through them the company obtained all lands which were the basis of its operations. The transaction was fully shown on the books of the company, and was approved by all its then stockholders. There was also an understanding that- defendant should use a portion of such stock for the purpose of interesting other persons in the company, whieh he did, retaining for himself but a comparatively small portion. Held that, in the absence of proof of an actual fraudulent intention, such stock was not illegal, and Subject to cancellation at the suit of persons who subsequently became stockholders with full opportunity to know the facts, either under the general rules of law or under the laws of Colorado, where the corporation was organized. which permit the issuance of stock for labor done or services performed or property actually received.</p> <p>4. Equity—Laches—Pleading.</p> <p>Laches need not be pleaded as a defense, but it is sufficient to defeat relief in a court of equity if it appears from the evidence.</p> <p>5. Corporations—¡óuit to Cancel Stock—Laches.</p> <p>A suit by a corporation or stockholders for the cancellation of stock of the corporation on the ground that its issuance was unauthorized and illegal cannot be maintained after the lapse of six years from the time it was issued, during all of which time the transaction appeared fully from the books of the corporation.</p> <p>¶ 4. See Equity, yol. 19, Cent. Dig. §"§ 395, 648.</p>

On Motion to Remand to State Court. The plaintiff, a Missouri corporation, filed its petition in the state circuit court of Buchanan county, Mo., against the Chicago, Burlington & Quincy Railroad Company (hereinafter called the “Burlington Railroad”), an Illinois corporation, and the Kansas City, St. Joseph & Council Bluffs Railroad Company (hereinafter called the “Council Bluffs Railroad”), a Missouri corporation, to have condemned for the plaintiff’s use certain lands at…

<p>1. Copyrights—Infringement—Pleading—Allegation op Ownership.</p> <p>Where a bill alleged that complainant was the owner of the copyrighted work known as the “American and English Encyclopaedia of Law” and the “Encyclopaedia of Pleading and Practice,” and charged that the volumes of such work were edited, prepared, and published by and under complainant’s direction, at great expense, from original sources, complainant being at great expense in collecting the cases and authorities therein cited, and searching for judicial precedents, and in discussing and formulating the propositions of law therein contained, and in presenting, selecting, and arranging the matter contained in said books, the bill sufficiently alleged how complainant became the proprietor of the work.’</p> <p>2. Same—Record op Copyright.</p> <p>Rev. St. § 4964 [U, S. Comp. St. 1901, p. 3413], provides that every person who, after the “recording of the title” of any book, and depositing two copies thereof, etc., does certain acts prohibited, shall be liable for damages for infringement of copyright, and section 4953 [U. S. Comp. St 1901, p. 3407] declares that copyrights shall be granted for the term of 28 years from the time of “recording the title” thereto. Held that, though the title of a publication sought to be copyrighted may be regarded as recorded when received for record by the librarian of congress, under Rev. St, §$4956, 4957 [U.-S. Comp. St. 1901, pp. 3407, 3409], a bill for infringement failing to allege that the titles of the alleged copyrighted books had been recorded by the librarian of congress was demurrable.</p> <p>3. Same—Unfair Competition—Segregation.</p> <p>Where a bill for infringement of a copyright on legal publications charged that defendant has, as a substitute for and in lieu of a resort to original sources, unfairly used the results of complainant’s publications, and has incorporated such results in defendant’s publications, and that such publications are to a large extent the product of complainant’s original work, rewritten so as to conceal the ■ fact that it was pirated, and that defendant, instead of resorting to original sources, to a large extent has obtained the information contained in its publications from complainant’s publications, it sufficiently alleged defendant’s unfair competition, and that it was impossible to segregate the particular portions complained of.</p>

<p>In Equity. Suit to enjoin infringement of trade-name. On final Shearing.</p>

<p>1. Charter Party—Demise of Vessel—Stipulation Relieving Charterer from Liability for Negligence of Master.</p> <p>A time charter of a steam yacht, to be delivered in commission, contained a provision that “the charterer shall assume no responsibility for loss' or damage to the yacht,” and a clause in the printed form requiring the charterer to keep the vessel insured for the benefit of the owner was stricken out. It also provided that the hire should continue until her redelivery in good condition, “unless lost,” and that, in case of her loss during the term, hire paid in advance and not earned should be returned. She was delivered in commission, and the officers and crew were retained by the charterer; the master being recommended by the owner as competent to navigate the yacht, both as master and pilot, In any waters within the limits of the contract, in conjunction with local pilots. The charterer had no knowledge of navigation, and accepted and relied upon the master in all respects. The yacht was lost through the negligence of the master in failing to take a pilot in waters with which he was unfamiliar, though his taking one was suggested by the charterer. Eéld thqt, although the charter was a demise of the vessel, which made the master the agent of the charterer, who would be responsible for his negligence to third persons, and ordinarily as between the parties, he was protected from liability to the owner for the loss of the yacht by the provisions of the charter, by which the owner clearly assumed the risk of such loss.</p> <p>2. Same—Validity—Public Policy.</p> <p>A stipulation, in a charter demising a vessel, by which the risk of loss or damage to the vessel through the negligence of the master, which the law would otherwise east upon the charterer, is assumed by the owner, is not invalid as against public policy.</p>

Two actions heard together. The first was a suit in equity removed from,a state court, and heard on a motion to remand and a motion by defendant to dissolve an injunction. The second was a proceeding by habeas corpus in the district court by the defendant in the first suit for his discharge from arrest and detention on an order of the state court for violation of injunction.

<p>1. Federal Courts—Action on Bond of Government Contractor—Nonresident Surety.</p> <p>In view of the provisions of Act Aug. 13, 1894 (28 Stat. 279 [U. S. Comp. St. 1901, p. 2315]), which requires surety companies before they can be accepted as surety on a bond given to the United States by a contractor for government work to file a power of attorney and consent to certain conditions as to service of process and entry of appearance in the district where the bond is given, a petition against such a company as surety on a contractor’s bond in the district where it was given, where service appears to have been made on its authorized agent, is not demurrable on the ground that it is not an inhabitant of the district.</p> <p>2. Same—Jurisdiction—United States as Nominal Plaintiff.</p> <p>Under Act Aug. 13, 1894 (28 Stat. 279 [U. S. Comp. St. 1901, p. 2315]), which requires contractors for government work to give bonds conditioned' for the prompt payment of all persons supplying labor or materials in the prosecution of the work, and authorizing such persons in case of nonpayment “to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties,” such a suit is not one brought by the United States as plaintiff, within the meaning of the judiciary act, so as to .give a federal court jurisdiction, without regard to-the citizenship of the parties or the amount involved, since the United States is merely a formal party, without interest, and to confer jurisdiction on a federal court there must he diversity of citizenship, and also an amount involved exceeding $2,000, exclusive of interest and costs.</p>

<p>1. Criminal Law—Bill of Particulars—Evidence.</p> <p>On prosecution for crime the court will limit the government in its evidence to those facts set forth in the bill of particulars.</p> <p>8. Indictment—Demurrer—Bill of Particulars.</p> <p>Where a demurrer goes both to the indictment and the bill of particulars, and is so treated by counsel on both sides, the court may so consider it to avoid a useless trial of the indictment, though the law does not require it to do so.</p> <p>8. Intoxicating Liquors—Sale without License—Common Carrier—Interstate Shipment.</p> <p>On an indictment charging a common carrier with carrying on the business of a retail liquor dealer without a license by receiving liquors from a liquor company without the state, carrying them to the consignee C. O. D.-, receiving the money, and carrying it to the liquor company, it was immaterial that no bills or invoices accompanied the shipment.</p> <p>4. Same—Interstate Commerce.</p> <p>The “commerce clause” of the constitution was not involved, the only question being whether defendant sold the liquors.</p> <p>5. Same—Title—Consignor—Carrier.</p> <p>. The title to the liquors passed to the consignee on delivery thereof by the liquor company to the carrier, and therefore the carrier acted as the vendee in carrying and agent of the vendor in collecting, and was not guilty of a sale.</p> <p>6. Courts—Prior Decisions.</p> <p>The district court may decline to follow the weight of authority in the United States courts, the pertinent question being as to the rulings of the supreme court or the court of appeals for that circuit.</p>

<p>1. Bankruptcy—Trustee—Appointment—Disapproval of Referee.</p> <p>Bankr. Act, c. 5, § 44 [U. S. Comp. St. 1901, p. 3438], provides that the creditors of a bankrupt estate shall at their first meeting after the adjudication, or after a vacancy has occurred in the office of trustee, appoint a trustee, and if they do not the court shall do so. General Order 13 (32 O. C. A. xvii, 89 Fed. vii) makes the appointment by the creditors subject to the approval of the referee or judge, but enacts that he shall be removable by the judge only. By Bankr. Act, § 1, subd. 16 [TJ. S. Comp. St. 1901, p. 3419], the term “judge” does not include “referee.” Held, that a referee could not ignore the appointment of a trustee by creditors, and appoint another, but, if he disapproved, it was his duty to make an order in writing, and on this the parties had a right to be heard before the judge.</p> <p>2. Same—Power of Referee.</p> <p>It is further provided by Bankr. Act, § 2, subd. 17 [U. S. Comp. St. 1901, p. 3421], that courts of bankruptcy have power, pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, to appoint trustees, and upon complaints of creditors remove trustees for cause on hearing and after notice to them. Held,, that this conferred no power to disregard the recommendation of creditors, and did not authorize the act of the referee.</p> <p>8. Same.</p> <p>Assuming that there is a vacancy in the office of trustee on account of the disapproval of the referee, the court or referee could appoint another only after failure by the creditors to appoint after a full opportunity.</p>

<p>In Equity. Argument on plea.</p>

<p>1. Equity Jurisdiction—Adequate Remedy at Law.</p> <p>A bill against a railroad company, a reorganized company, which had purchased and obtained possession of the property of the first company through a foreclosure sale, and a trust company, to obtain possession of certain bonds deposited by complainant with the trust company on which the first railroad company was guarantor, and to enforce payment of the same by the railroad company, on the ground that the foreclosure sale was void, if not multifarious, states no case for equitable relief; it not appearing from the facts stated that there is not an adequate remedy at law.</p>

<p>1. Federal Courts—Jurisdiction—Receivership—Negligent Creditors.</p> <p>Where creditors of a corporation had. notice of receivership proceedings in the state courts, and ample opportunity to prove their claim, a federal court will not interfere to protect their rights, even though their prayer has some equitable aspects.</p>

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

<p>L Circuit Court or Appeals—Jurisdiction—Jurisdictional Questions.</p> <p>An order entered by a circuit court on the coming in of the final report of a receiver appointed by-it in a foreclosure suit, denying the petition of the receiver, praying for a settlement of his accounts, and to have certain costs and expenses of the receivership adjudged against the complainant because of the insufficiency of the proceeds of the mortgaged property to pay the same, does not involve any question of jurisdiction, and an appeal therefrom lies to the circuit court of appeals, although such order was based on the ground that the court was without authority to require complainant to pay such costs and expenses.</p> <p>2. Appealable Orders—Finality.</p> <p>Such an order, which involved a refusal by the court to settle the receiver’s accounts, which had been left open for future adjustment by the decree confirming the sale of the mortgaged property, was final, and the receiver was entitled to appeal therefrom.</p> <p>8. Receivers—Costs or Receivership—Power to Adjudge against Complainant.</p> <p>Where the costs and expenses of the management of mortgaged property by a receiver, authorized by the court, exceed the proceeds of the property when sold, together with its earnings, and the court has expressly retained jurisdiction over the subject-matter and the parties until the final settlement of the receiver’s accounts, it has power on such settlement to render judgment for the deficiency against the complainant, at whose instance the receiver was appointed and continued, and the expenses were incurred.</p> <p>¶ 1. Jurisdiction of circuit court of appeals, see notes to Lan Ow Bew v. U. S., 1 C. C. A. 6; Emigration Co. v. Gallegos, 32 C. C. A. 475.</p>

<p>1. State Court—Construction of Statute—What Constitutes—Binding Effect on Federal Court.</p> <p>Shannon’s Code Term. § 4025, provides that the right of action which a person who dies from injuries from another, or whose death is caused by the wrongful act, etc., of another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, etc. Sections 4026-4028 authorize the personal representative or widow to sue, and provide that, if the deceased has sued, the action may proceed after his death without revivor. Section 4029, being an amendment to the original act, provides that the party suing may recover for the suffering, loss of time, etc., resulting to the deceased, and also the damages resulting to the parties for whose use and’ benefit the right of action survives. The supreme court of Tennessee has held, notwithstanding section 4029, that this statute does not create a new liability, but merely continues decedent’s cause'of action by abrogating the common-law rule abating personal actions on the death of the plaintiff. Held that, as the liability is not created, but merely preserved, by statute, a decision of the supreme court of Tennessee, in an action for wrongful death, that the conductor of a railroad train was a vice principal, and. not a fellow servant towards the brakeman, did not define a statutory liability so as to be binding on the federal courts as a construction of a state statute.</p> <p>f 1. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p>

<p>Appeal from the Circuit Court of the United States for the Southern Division of the District of Washington.</p> <p>This is a petition praying for the specific performance of a contract for a water right for 320 acres of land., The main suit in which it was presented was entitled “California Safe Deposit & Trust Company v. Yakima Investment Company,” for the foreclosure of a mortgage or trust deed securing the issue of about $700,000 in bonds. Receivers were appointed, decree and order of sale made, and the property mortgaged was sold to J. Dalzell Brown. The sale was confirmed, and Brown sold and transferred the property to the Washington Irrigation Company, appellant herein. The property involved in the foreclosure suit consisted of some 25,000 acres of arid land, and an irrigation canal and laterals covering a large scope of country. When the decree for the foreclosure and sale was entered, the court directed that the sale should be made as a whole of the lands and water system, and of all “contracts, options, and privileges of said Yakima Investment Company and its predecessors in interest, and of the receivers * * * in this suit, to acquire and purchase and to receive conveyances of lands and other property,” and including all contracts by the investment company and its predecessors and receivers for the sale of water to other parties. The decree further provided that the purchaser and his successor should take said property subject to all valid existing contracts for the sale of any of the mortgaged lands and for the sale of water from said irrigating canals made by the defendant or the receivers, and jurisdiction of the case was expressly retained by the court for the purpose of enforcing these provisions of the decree. Before the confirmation of the sale the claim of the appellees herein was brought up, and it was stipulated and agreed in open court by the purchaser that their claim should not in any manner be prejudiced by the confirmation, and that, if the claim could not be amicably adjusted, the court expressly retain jurisdiction to hear and determine it.</p> <p>It appears from the record herein that in 1890 congress passed an act forfeiting to the government every alternate odd section of the granted land held, by the Northern Pacific Railroad Company. This act provided that, where the railroad company had previously sold or contracted to sell any of the lands falling within the limits mentioned, it had the privilege of protecting its vendees by surrendering other lands in lieu thereof; and it was required to file proper lists with the land department, showing the facts. About this time the original Sunnyside Canal Company was organized, and the railroad company had contracted to sell it a large acreage lying within the “overlap” of the branch and main lines. At this time Mr. Schulze was the general Western agent of the railroad company, and also president of the canal company. ' The petitioner Krutz was register of the local land' office at North Yakima. In February, 1891, the commissioner of the general land office notified the local land office of the passage of the act of congress hereInbefore referred to, and inclosed it a list of the lands -which the railroad company had elected to take, and instructed the local office as to its course in regard to different matters arising out of the situation. Mr. Krutz knew that the railroad company had contracted to sell lands which were not included in its list, and he notified both the commissioner of the general land office and Mr. Schulze of the information he had, and called attention to the apparent oversight. The result of his action in this regard was the filing of an amended list by the railroad company. In the meantime the register of the local land office had published notice of the status of the land, as directed by the commissioner, and a number of citizens had expressed their purpose to file on the lands on the day that they were to be opened for settlement.</p> <p>Mr. Krutz, in his own behalf, testified as follows: “About this time it was rumored that the N. P., Yakima & Kittitas Irrigation Company was to construct a large canal covering these lands. The result was that people in great numbers examined the land preparatory to offering to file for it. The railroad company had arranged about this time with the canal company to sell all its odd .sections under the canal, including the forfeited sections. It appeared that the land department of the railroad company had been called upon by the commissioner to submit a list of the lands it had sold, embraced in the sections it had elected not to take. Through the carelessness of the railroad company, or Mr. Schulze, its Western land agent, this was not done. Knowing that the railroad company had sold or contracted to sell these lands to the canal company, I wrote a letter on February 18, 1891, to the commissioner of the land office, calling attention to this state of facts. * * * On the same day I wrote a letter to Mr. Schulze, at Tacoma, calling his attention to the same matter. Mr. Schulze was Western land agent of the railroad company, and also president of the canal company. * * * A short time thereafter I received a letter from the department, dated March 5, 1891, instructing me to publish notice of the amendment. * * * Several days before the date fixed for receiving applications to file for the land, Mr. Schulze came over to North Yakima to learn the true status' of the lands, as disclosed by our records, and informed me of the dilemma the company was in. He asked me what I thought was the best course to pursue to extricate themselves. * * * I suggested to Mr. Schulze that he prepare and file a list of the lands he had sold to the canal company, and accompanying it with a protest against the acceptance and allowance of filings. I advised him to send these papers by mail to the land office, so that they would be received at the office before 9 o’clock a. m. on the date the land was to be subject to entry, so that they would take precedence over applications presented at the opening of the office. This was done. In the afternoon, before the date fixed for receiving filings, about fifty persons got in line, and remained all night at the land office to secure preference rights to file. At 11 o’clock that night the settlers sent for me to come to the land office to confer with them regarding their applications to file. They had heard the railway company was intending to file a protest against the acceptance of their filings. I explained to them that, if they insisted making their entries, I would issue certificates, and have the receiver give them receipts, or I would simply note the records of the time of their presentation, and if the protest should be filed I would forward the applications with the protest to the department, and recommend that a hearing be had to determine the rights of the respective parties. * * * They were pleased with these suggestions, and the matter was determined that way, and the records were forwarded to the department. * * * In the fall of 1891, and after the various applications and protests had been filed and were pending before the department in Washington, Mr. Schulze and Mr. Granger expressed themselves as being pleased at the turn the matter had taken, and offered to give me 160 acres of land under the canal. I rejected the offer, as I was register and could not accept it; but I told Mr. Schulze, if he could give me any work for the company after my term of office expired, so that I could feel that I had earned the land, I would then accept it. * * * I was out of office when the hearing was had, and the record .forwarded to the department It was found that the showing made by the company was not sufficient to. bear out the company’s contention that the land was really sold before the forfeiture act was passed. Mr. Schulze sent for me to come to Tacoma. I went, and, after listening to his statement of the status of the ease before the department, I suggested that the general manager of the Northern Pacific Coal Company be sent to Washington City to look after the cases. I advised Mr. Schulze to get relinquishments from the settlers who had made improvements on the lands. Only two of the fifty settlers (George W. Rodman and his son) had built houses on the land. 1 advised Mr. Schulze to get relinquishments from these parties, and this was done. * * * Mr. Schulze now claimed that I had rendered the services which entitled me to 160 acres of land. I had filed on a desert land claim covering the S. y2 of sec. 10, twp. 10 N., R. 21 E., and arranged with Mr. Schulze for water for the land by giving the company 320 acres, but I was to have credit for the 160 acres I was to receive for my services. In 1892 I conveyed to the company the N. y2 of the N. 14 of see. 12, twp. 10 N., R. 21 E., for which I paid $1,000 cash. In 1898 I completed the purchase of the W. y2 of the S. E. % of sec'. 18, twp. 10, range 21 east, from Eugene G. Kreider and wife, which cost me . about $500. In order to save the trouble of making two deeds, I had Kreider and wife convey this land direct to the canal company. After the lands were sold at foreclosure sale and purchased by the Washington Irrigation Company, that company wanted to get a conveyance direct to it from Kreider; and I had Kreider and wife execute a new deed to that company. Mr. Granger, the manager of the Washington Irrigation Company, had written to Mr. Kreider, asking an explanation of Kreider’s original deed to the old canal company, which) it seems, had never been recorded; and, when Kreider sent that letter to me, I wrote to Mr. Granger, explaining that this conveyance was procured by me in completion of the agreement for my water right, and then Mr. Granger requested me to get a new deed from Kreider direct to the Washington Irrigation Company, which I did. *' * * These two tracts of land were conveyed by me and by Kreider and wife at my instance, in performance of my agreement to convey to the company 160 acres of land in payment for a water right for my 320 acres of land. No other consideration was paid by the canal company for that 160 acres, either to me or to Kreider. The canal company took possession of the first 80 acres conveyed by me in 1892, and kept possession until it or the receivers sold the land. The company or receivers took possession of the Kreider 80 acres in 1898, after Kreider’s first conveyance, and kept possession until the spring of 1901, when the present company sold a part of it. It still has possession of the unsold portion of the land. I informed the receivers, J. S. Allen and George Donald, of the agreement for my water right, and they promised to give me a deed, but they never delivered it. * * * When the canal company went into the hands of the receivers, Mr. Schulze advised me to wait until the company got control of the property, and then we could adjust the matter, but Mr. Schulze killed himself. Mr. Schulze never recorded the deed which I gave the company in 1892, and at the suggestion of the receivers I made another deed of this land to the receivers in May, 1896, which they received, and the greater portion of it was sold by them.”</p> <p>On.his cross-examination the following questions and answers were given: “Q. Mr. Krutz, was the contract which you state exists between you and Mr. Schulze oral or in writing? A. It was in writing. He sent a letter. Q. What did you do with that letter? A. I filed the letter with the receivers of the Yakima Investment Company. Q. What search have you made to find that letter? A. I searched among the papers in the office of the receivers, and was unable to find it, and I inquired of the receivers for iti but have been unable to find it.”</p> <p>Walter N. Granger testified on behalf of the Washington Irrigation Company that he was the general superintendent of the Washington Irrigation Company; that he had been connected with the Sunnyside Irrigation Canal from its inception; ■ that “Mr. Schulze was the president of this company, and it had a board of trustees, and I was its vice president and general manager. * * * I am acquainted with the claim for a water right of Ira M. Krutz and wife. Both Mr. Krutz and Mr. Schulze informed me that Mr. Schulze had promised Mr. Krutz a piece of land near Ziliah, consisting of 160 acres, for services which Mr. Krutz had rendered, while register of the land office, for the Northern Pacific Railroad Company, in straightening out the applications of the railroad company as to the forfeited lands. I was not present at any time when Mr. Schulze made any promises to Mr. Krutz to give him land. But at North Yakima Mr. Schulze informed me that he had promised Mr. Krutz a piece of land, and I afterwards had a talk with Mr. Krutz, when he stated to me that Mr. Schulze had promised to give him 160 acres of land near Ziliah. * * * I do not think that Mr. Krutz, after he ceased to be register of the land office, performed any services whatever for the irrigation company. * * * As to a water right to Mr. Krutz for 320 acres of land, this was an after consideration, as the first promise to Mr. Krutz was for 160 acres of land near Ziliah, without a water right. * * * I never heard anything about a water right for 320 acres until he had filed upon his desert land claim. * * * I got that information from Mr. Krutz. I understood from Mr. Krutz during that time that there was such an understanding with Mr. Schulze, and, when the 80 acres was conveyed to the old canal company by Mr. Krutz, I understood that it was in performance of such an agreement; but I got that understanding from Mr. Krutz, and I never heard Schulze say anything about it”</p>

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>To clearly understand the contentions of the respective parties, and the opinion of the court, it is essential to outline the substance of the testimony given at the trial. The testimony shows that the deceased went to work for the railway company as brakeman on its Burke-Wallaee Branch about three weeks prior to his death; that he was a competent, skillful brakeman; that the train crew consisted of Ohattin, as conductor, the deceased, and Chester, as brakeman; that on the morning of March 13, 1899, deceased and Chester were, pursuant to Chattin’s orders, engaged in the Wallace yards in making up the train that was to leave for Burke; that Chattin told them to get a certain box car off of a yard track called the “Nine-Mile Track,” and put it in the train behind coach 417, which was the passenger coach regularly used on that run; that in front of said box car on the nine-mile track was coach 645; another coach was standing on the adjoining house track; to get said box car in its proper place in the train, deceased and Chester had to first move the coach on the house track, to throw the switch, and get in over the frog to the nine-mile track, and then couple onto and move coach 645; that deceased and Chester were doing the coupling and switching and braking required in the making up of the train; that Chattin did not get over to where they had been working until after the deceased was injured, and just as he died; that deceased and Chester were proceeding in the right way to get said box car, when, in the act of coupling-coach 417 onto coach 645, for the purpose of moving the latter and getting at the box car, deceased was injured; that, immediately before and at the time of the injury, Chester was on top of the box car for the purpose of letting off the brake thereon, and said brake was not to be let off, nor Chester leave the top of the box car, until deceased had coupled 417 to 645, and also coupled the other end of 645 to the box car, and then Chester was to release the brakes on the box car; that the coupler on the end of 417 was a skeleton drawbar, made of malleable iron, and riveted together; this skeleton draw bar' was an old-style link and pin coupler, the first one that was ever gotten out, and was unhandy and dangerous, and, in making a coupling between it and any other coupler, a link and two pins would have to be used; that this skeleton drawbar on 417 was different from, and more dangerous and inconvenient to use than, the ordinary style of skeleton drawbars; that 645 was an extra coach, not used regularly; that it was equipped with Miller hooks on both ends; that it was the only car used on the Burke Branch that was equipped with Miller hooks; that the Miller hook was an old-style coupler, designed and intended for passenger coaches, to be used automatically with another Miller hook, and at the time of the injury was not in general use; that more modem automatic couplers had been in general and successful use on both passenger coaches and on freight ears for some time before the deceased was injured; that the head of the Miller hook is hook-shaped; that the coupler has a long shank, which sets, and has considerable play and lateral motion in a carrying iron; that this play and motion allow the sloping sides of the heads, as two Miller hooks come together, to slip by each other until the hooks pass, when, by the action of a large heavy spring back of the carrying iron, the hooks are forced and grip together, and thus an automatic coupling is effected; that a Miller hook will only couple automatically with another Miller hook; that, to couple it to anything else, a link and pin must be used; that a coupling between a Miller hook and a skeleton drawbar is the most dangerous and difficult coupling known to trainmen; that a coupling could be much more easily effected between a Miller hook and skeleton drawbar of the ordinary style than between the particular Miller hook and the particular skeleton drawbar that were actually used on coaches 645 and 417; that the employés on the Wallace-Burke Branch had, prior to the employment of deceased, complained to the railway officers of the danger of making couplings between Miller hooks and skeleton drawbars, and had requested the removal of the objectionable equipment; that the lateral motion of the Miller hooks could be prevented by putting blocks and wedges in the carrying iron or stirrup that holds the Miller hook; that when thus blocked the space where the Miller hook would otherwise move from side to side in the carrying iron is filled in with the block that is strapped or bolted there, which prevents the Miller hook from shoving over; that it was customary and usual to block Miller hooks when they were habitually used in making link and pin couplings; that the Miller hook on 645 was not blocked in any way, and was used in nothing but link and pin coupling; that in the ordinary performance of the duty of coupling cars a brakeman could not observe whether or not a Miller hook was blocked; that, owing to- the infrequent use of 645, the train crew were seldom called on to make a coupling between a Miller hook and skeleton drawbar, and deceased had not attempted, so far as known, to make such a coupling during his employment by the railway company; that deceased was never warned by defendant, or any of its officers or employés, of the danger of making a coupling between a Miller hook and skeleton drawbar; that the proper and the safest way to make the coupling between the Miller hook on 645 and skeleton drawbar on 417 was to first put the link in the skeleton drawbar (417 being the moving ear), and then guide such link by hand into the Miller hook on 645; that deceased had endeavored to make the coupling in that way; that an examination made immediately after the injury disclosed the fact that the ends or heads of the two couplers had slipped by each other so that the Miller hook was slipped in behind the lip of the skeleton drawbar, thereby allowing the platforms of the two coaches to come much closer together than they should come; that attached to the platforms of 417 and 645 were iron buffer plates, with springs attached to the back thereof, the object and purpose of which was to take up the slack and prevent the cars coming together with a jar; that the buffers were not designed or intended to keep the couplers far enough apart to prevent a man who was coupling them together from being squeezed to death; that there were no bumpers or deadwood or anything else on said coaches which would prevent such a result, or which would, in the event of the couplers passing each other, keep the platforms further apart than the thickness of those bumpers,—about three inches; that the coaches were on a curve at the time of the injury; that deceased was making the coupling from the inside of the curve; that an ordinary link and pin coupling can be made as easily and safely on a curve as on a tangent; that cars on a curve are ordinarily and generally coupled from the inside of the curve, because ordinarily the trainmen cannot from the outside, and can from the inside, see and give signals to the engine; that the coupling between 417 and 645, which deceased was making, could be as safely made from the inside as from the outside of the curve; that deceased was compelled to make the particular coupling from the inside of the curve, because he could not signal the engineer from the outside of the curve, for two rea'sons, namely, (1) the cars and train which they were making up, stood in the way, and (2) cars on .the house track, which was next to the nine-mile track on the outer side of the curve, stood so close to the nine-mile track at the place of coupling that the deceased could not get far enough away from such outer side; that it was not practicable to make a coupling between the Miller hook and skeleton drawbar with a stick or knife or coupling pin; that the railway company’s rule that requires couplings to be so made was universally disregarded, and no attempt was ever made by the railway company to enforce it.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The bill in the Circuit Court was by appellee, a corporation of New York, against the appellants, The National Telegraph News Company, a corporation of Illinois, and F. E. Crawford and A. K. Brown, citizens of Illinois; and the appeal is from an interlocutory order restraining the appellants, and each of them, their servants, agents and employés, from copying from the appellee’s electrical instruments and printing machines, known as tickers, for the purpose of publishing, selling or transmitting through their own tickers, or otherwise disposing of, or using, any of the news or information—such as base-ball, foot-ball, racing, athletics, stock, grain and produce quotations, financial and other reports—which may thereafter be collected, formulated and transmitted by the appellee through its tickers; and from publishing, selling or using the matter so copied until the lapse of fully sixty minutes from the time such news items are printed by appellee’s tickers.</p> <p>The further facts appear in the opinion of the court.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The bill as amended, was by the Cleveland Telegraph Company, a corporation and citizen of the State of West Virginia; and the Western Union Telegraph Company; the Postal Telegraph Cable Company; and the Gold and Stock Telegraph Company, corporations existing under and by virtue of the laws of the State of New York, against appellants, and others, citizens of the State of Illinois. It set forth in substance, the organization of the Board of Trade of the City of Chicago; the general purposes of such Board; its right to make rules, regulations and by-laws, for the government of its affairs; the fact that it has a membership of about eighteen hundred members. and owns an Exchange Building costing upwards of one million dollars; and the manner of its conducting business, the latter as follows: that any person of good character and business integrity can become a member of the said Board of Trade upon application, and paying its regular initiation fee, or acquiring in lieu thereof from a member, a transfer of an existing membership, which is readily purchasable; and that said Board of Trade has provided within such exchange building for the exclusive use of its own members only, an exchange hall, where many of its members meet every business day between the market hours of 9:30 a. m. and 1:15 p. m. (except on Saturday, when the market hours are from 9:30 a. m., until twelve o’clock noon) to buy and sell for themselves, or as brokers and agents for their customers, for present and future delivery, all kinds of grain and hog products, the volume of said transactions aggregating many millions of bushels of grain and many million pounds of hog products annually, and having become so large that said exchange is now the greatest grain and provision market' in the United States; that said purchases are permitted by said Board of Trade to be made, and are made, only during said market hours, and by viva voce bidding; and the information of the prices thus made in said transactions during said market hours upon said Exchange has become a species of property of such large value to the said Board of Trade, that telegraph companies are willing to pay said Board of Trade large sums of money for the privilege of receiving instantaneously said quotations of prices and selling the same to their customers, and many persons throughout the United States who are engaged in the grain and provision business are willing to pay, and for many years have paid said telegraph companies large sums of money therefor; the prices which telegraph companies are able to get from their customers for the instantaneous and continuous quotations of said Board of Trade being as follows:</p> <p>From Chambers of Commerce outside of the City of Chicago, from $150.00 to $300.00 per month.</p> <p>From individuals outside of the City of Chicago when furnished by telegraph instrument known as the “Morse” instrument, from $125.00 to $175.00 per month.</p> <p>From same persons when furnished by instrument known as “Tape Ticker,” from $6.00 to $25.00 per week.</p> <p>From persons in Chicago, $4.00 per week; and for periodic or non-continuous quotations, as follows:</p> <p>For quotations every fifteen minutes outside of ticker districts, $20.00 per week; for like quotations every thirty minutes, $10.00 per week; for four (4) quotations daily from $10.00 to $20.00.per month, depending on the number of articles quoted.</p> <p>The bill further states the manner of collecting and distributing said quotations, as follows:</p> <p>Experienced persons are placed during market hours, in each of the different parts of the exchange hall of said Board of Trade where the buying and selling of the different commodities is taking place—these parts being commonly known as “pits”—whose duty it is to at once mark on paper every fluctuation in the market price of the commodity dealt in in such pit, and to immediately transmit said written prices by messengers to-a telegraph operator on the floor of said exchange hall, who at once transmits them by a certain electrical instrument called a “transmitter” over telegraph wires connected with said transmitter, and running thence to the various offices and places of business of persons in the city of Chicago, who desire, and are willing to pay for, such quotations, each of such wires being connected in said office with an electrical instrument known as a “ticker” by means of which the quotations which are thus electrically transmitted over such wires to said ticker, are automatically and immediately printed upon an automatically unrolling roll of paper called a “tape,” so that persons in said offices can read the same on said tape within less than fifteen seconds after such prices are made in transactions upon such exchange; and such quotations are transmitted to persons outside of the City of Chicago in a similar manner, except that they are required to be and are almost instantaneously retransmitted over telegraph wires by means of a telegraph instrument known as a “Morse” instrument, this retransmission being necessary in order to send such quotations any considerable distance, and by the method herein indicated said continuous quotations can be conveyed to persons in all the cities and towns of the United States within twenty seconds after said prices are made in said transactions of said exchange; and your orator is informed and believes that the yearly expense to said Board of Trade of collecting said quotations as aforesaid, is more than seven thousand dollars ($7,000.00).</p> <p>The bill then sets forth the following agreement:</p> <p>This Agreement, Made this loth day of April, 1901, between the Board of Trade of the City of Chicago, a corporation, organized under the laws of. the State of Illinois, party of the first part, and The Western Union Telegraph Company, a corporation organized under the laws of the State of New York, party of the second part, and the Postal Telegraph Cable Company, a corporation organized under the laws of the State of New York, party of the third part,</p> <p>Witnesseth: First. The said Board of Trade agrees to furnish, without discrimination or delay, to the said party of the second part and said party of the third part, complete and continuous quotations of prices made in transactions between members of said Board of Trade in its Exchange Hall. Such quotations shall be received by each of said telegraph companies at its office or offices in the City of Chicago, over a wire or wires to be furnished by the said telegraph company, connecting its office or offices with Morse telegraph wire or wires in the exchange building of the said party of the first part, which shall run to and be connected with the Morse telegraph transmitting instrument upon the floor of said exchange; such transmitting instrument to be the only instrument by which such quotations are to be transmitted from the said exchange hall. Said market quotations shall be collected in the different parts of said exchange hall and be brought to the Morse telegraph operator at said transmitting instrument with as much speed, efficiency and completeness as they were prior to June 22, 1900, collected by the said parties of the second and third parts; and shall be transmitted by said operator with the same diligence, promptness and completeness as the same were prior to June 22, 1900, transmitted by the said parties of the second and third part; the operator, Morse telegraph transmitting instrument and wires leading to the various telegraph companies, parties hereto, to be located at the wheat pit, and within reach of the wheat reporter, said operator to be satisfactory to the telegraph companies. The said party of the first part agrees to employ or cause to be employed, without expense to the party of the second or of the third part, a sufficient number of competent persons for the purpose of collecting and transmitting the said quotations of sales upon said exchange hall, including the necessary force of messengers for carrying said quotations and reports to the transmitting operator, so that the parties of the second and third part shall obtain complete and continuous quotations throughout all sessions of said Board of Trade of the prices at which commodities dealt in on said exchange are bought and sold. The party of the first part agrees that the intention of this clause is to insure that the delivery of its quotations to the parties of the second and third parts hereto shall be simultaneous with and in the same manner as their delivery to any other telegraph company or party to whom they may be furnished for distribution. And said Board of Trade further agrees that said telegraph companies may designate some person of good character and proper behavior to take from the blackboard in said exchange hall, as the same is posted there, all market and statistical information which is posted on said blackboard, and that such person shall have a permit to enter said exchange hall for that purpose.</p> <p>Second. The said parties of the second and third parts agree that they will not knowingly furnish or sell, directly or indirectly, said continuous quotations to any person, firm or corporation conducting a bucket shop, or other similar place, where such quotations are used as a basis for bets or other illegal contracts based upon the fluctuations of the prices of commodities dealt in on said Board of Trade; nor will they knowingly continue to furnish said continuous quotations to any person, firm or corporation who shall retransmit or furnish the same to any person, firm or corporation conducting such bucket-shop or othér place; provided, however, that nothing in this contract shall be construed as imposing upon the said parties of the second and third parts the duty to investigate and determine the character of business conducted by any person, firm or corporation applying for or receiving such continuous quotations, but the procedure to be adopted for the purpose of determining whether any applicant for such continuous quotations, or any person, firm or corporation receiving said quotations, contemplates using them, or is using them, for any of the prohibited purposes aforesaid, shall be as follows:</p> <p>1. Every applicant for such continuous quotations shall sign in duplicate an application in writing as follows:</p> <p>“To the......................Telegraph Company:</p> <p>We hereby apply to you for the continuous market quotations of the Chicago Board, of Trade, and we represent and agree with you, and with the Board of Trade of the City of Chicago, from which you, under contract, have acquired the right to distribute said quotations—</p> <p>I. That our business is and shall be the business of...................... ............................ and that we are not keeping or causing to be kept, and will not keep 01; cause to be kept any bucket-shop, or any office, store, or other place wherein is conducted or permitted the business of making, or offering to make, contracts, agreements, trades or transactions respecting the purchase or sale or purchase and sale of any grain, provisions or other commodity or property, wherein both parties thereto or the undersigned contemplate or intend that such contracts, agreements, trades or transactions shall be, or may be, closed, adjusted, or settled according or with reference to the public market quotations of prices made on any Board of Trade or Exchange upon which the commodities or securities referred to in said contracts, agreements, trades or transactions are dealt in, and without a bona fide transaction on such J3oard of Trade or Exchange, or wherein both parties or the undersigned shall contemplate or intend that such contracts, agreements, trades or transactions shall be or may be deemed closed or terminated when the public market quotations of prices made on such Board of Trade or Exchange for the articles or securities named in said contracts, agreements, trades or transactions shall reach a certain figure; and we agree that we will not use or allow anyone else to use such quotations or any of them for any •such purpose or in such bucket-shop.</p> <p>II. We further agree with you, and with the said1 Board of Trade of the •City of Chicago, that said quotations are to be received by us only for our private and individual use, and that said quotations will be used only in our said! business; and that we will not sell or communicate or otherwise give said continuous quotations to any news distributing company, or telegraph company, or other person or corporation, nor allow any person or corporation whatsoever to take, directly or indirectly, said continuous quotations from said office, or to make a wire connection with the instruments or wires in said •office over which we receive said quotations. But nothing herein shall preclude us from transmitting said quotations to any branch office of ours, nor to any of our correspondents, provided that before transmitting said continuous quotations to any such correspondent we first obtain in duplicate (one of which shall be at once delivered to said Board of Trade) an agreement signed by such correspondent, in which said correspondent shall agree with you, and with said Board of Trade, to abide by and comply with Clauses I, II and III hereof. If the undersigned shall transmit, or permit to be transmitted, said quotations to any person, firm or corporation, who shall not have first signed a correspondent’s agreement as above provided, the undersigned hereby agrees that said Board of Trade may sue the person, firm or corporation to whom said quotations are thus transmitted, to prevent the receipt or use of said quotations by said person, firm or corporation without making the undersigned a defendant thereto; provided the undersigned does not, or in case of a partnership, all the members thereof do not, reside within the jurisdiction of the court in which said suit is brought. By ‘continuous quotations’ in this clause II is meant quotations wherein the price •of any commodity shall be quoted oftener than at intervals of ten minutes.</p> <p>III. We further agree that a strict compliance with the above provisions is and shall be a condition precedent to our right to a continuance of said quotations; and agree if we shall violate either of the above provisions, then you shall have the right at once and without notice, to ciit off and cease furnishing said quotations.</p> <p>We further agree with you that you shall not be pecuniarily liable for the •accuracy of the quotations which you may furnish under this application, nor for errors, delays or omissions in the service.</p> <p>This application shall become a contract binding upon us when accepted by you.”</p> <p>One of such applications so signed shall be by the telegraph company mentioned therein at once transmitted to the party of the first part, at Chicago, which shall thereupon instigate such investigation as it deems proper to determine whether such applicant desires said quotations for said prohibited purposes. Such investigation shall in the case of applications made and delivered to the party of the first part, within thirty days after the date hereof, be completed within sixty days after the date hereof; and when so received after said thirty days, said investigation shall be completed within ten days after such receipt of said application. If said party of the first part shall not within the time above specified notify said telegraph company at its office in Chicago that, for the reasons aforesaid, said application should not be granted, then said application shall be accepted and said telegraph company may thereupon furnish said applicant said quotations; but if within said time, said party of the first part shall find upon investigation, and shall notify said telegraph company, that said applicant wishes said quotations for any of said prohibited purposes, said telegraph company shall refuse to furnish said quotations upon said application. If legal proceedings shall thereupon or thereafter be commenced against said telegraph company on account of any delay in receiving said quotations or such refusal to furnish quotations, said proceedings shall be defended by the party of the first part, which shall, and hereby agrees to, pay all counsel and attorney’s fees, costs, charges, damages, fines, penalties and expenses which said telegraph company may be put to or may be made subject to on account of such delay or refusal; and for the purpose of securing the said telegraph company against any such loss, expenses or damages occasioned by such delay or refusal or such legal proceedings, the said telegraph companies shall at all times retain from the compensation hereafter provided the amount of such compensation for the period of six months; and to this end, the first payment provided for under this contract shall not be made until seven months after it shall go into effect, and if at any time either of the said telegraph companies shall be obliged to pay any costs, damages or expenses which shall not be refunded to it by said party of the first part on demand, then the said telegraph companies may pay from the said fund so retained the amount so paid by said telegraph company, and may then retain from the subsequently accruing installments a sum sufficient to make good the amount so paid out from said fund for costs, damages or expenses.</p> <p>2. If said Board of Trade shall at any time ascertain that any person, firm or corporation receiving said continuous quotations from the party of the second or third part, or- from persons to whom either party of the second or third part furnishes said quotations, is using said quotations for the purpose of conducting the business of illegal gambling in any of the commodities dealt in on said Board of Trade, or is conducting a bucket-shop as defined by the law of Illinois, or is violating any of the agreements contained in said application or correspondent’s agreement, then said Board of Trade may (1) so inform said telegraph company so furnishing said quotations and tender to said telegraph company its bond, with a surety company in good financial standing as surety thereon running to said telegraph company, and in such penal sum as shall be fixed by said telegraph company, conditioned to save said telegraph company harmless from all costs and damages (including attorney’s fees) that may be incurred by said telegraph company by acting upon said information and thereon withholding said quotations from such person, firm or corporation. And thereupon said telegraph company shall at once cease to furnish said quotations to such person, firm or corporation, or if a correspondent, then to the person, firm or corporation whose correspondent he is; and in that event said Board of Trade shall, at its own expense, defend any suits brought against said telegraph company, by reason of its said conduct. Or if said Board of Trade shall elect not to give such bond of indemnity then it (2) may at its own expense, commence legal proceedings in a court of competent jurisdiction against such person, firm or corporation and said telegraph company to enforce this contract and determine whether such person, firm or corporation is using said quotations for such illegal purposes, or is using said quotations in conducting a bucket-shop or contrary to the terms of his, its or their agreement aforesaid; and in such suit said telegraph company shall enter its general appearance as defendant, and If In said suit or in any suit brought by any such person, firm or corporation against either or both of the telegraph companies, parties hereto, it shall be determined by in junctional order or final judgment or decree conclusive upon the parties to said suit, against the right of such person, firm or corporation to have or use said quotations, then said quotation service to such person, firm or corporation shall be discontinued by said party of the second or third part furnishing the same, and said Board of Trade shall indemnify and save said party of the second or third part harmless against any loss, damage or expenses which may result to it by reason of said discontinuance of said service.</p> <p>Third. It is further agreed by the said Board of Trade that it will cause to be kept quotation records showing the fluctuations throughout the day with the specific time of said fluctuations in the same manner as said quotation records have been heretofore kept, and that said parties of the second and third parts may at all times have access to said quotation records.</p> <p>Fourth. The said parties of the second and third parts hereby agree to pay said Board of Trade for said quotations and other market news the sum of twenty-five hundred dollars per month, payable on or before the second day of each succeeding month during which they shall receive said quotations, provided that the first payment shall not be required to be made until seven months after the going into effect of this contract, in accordance with the provisions of clause two of this contract. The proportions of said amount which shall be contributed by each telegraph company to be agreed upon between themselves. Thirty days after the termination of this contract the amount of money withheld by the telegraph companies as a security fund aforesaid shall be paid by them to the party of the first part. Provided, that if there are then pending any suits or claims against either of said telegraph companies on account of its refusal to furnish or continue furnishing said quotations, then the parties of the second and third parts shall have the right to retain a sufficient amount- of said fund to amply secure them against said suits and claims, and on the final adjudication or settlement. of said suits and claims the amount withheld as security therefor shall be paid by the second and third parties to the party of the first part. But if said party of the first part shall give to the parties of the second and third parts a good and sufficient bond ample to protect them against said impending suits and claims, including all costs, damages and expenses, signed by some surety company in good standing and satisfactory to the parties of the second and third parts, then said telegraph companies shall pay the balance of said fund to the first party.</p> <p>Fifth. The said party of the first part shall designate as parties of the second and' third parts some officer of said Board of Trade to whom said telegraph companies, or either of them, shall apply for the correction of any faulty or inefficient service in the gathering, reporting or transmission of said quotations; or for any necessary change in said service and to whom said telegraph companies, or either of them may refer in case of any dispute which may arise as to the correctness of said quotations, and to whom said telegraph companies, or either of them, may apply touching any incidental question arising on account of said quotation service.</p> <p>Sixth. Said party of the first part agrees to use all reasonable efforts to protect its property right in said quotations against purloiners thereof, and said telegraph companies agree that they will join either with said party of the first part or other telegraph company having the right to distribute said quotations, or both, as plaintiffs in any suit now pending or hereafter commenced, to protect said property right in said quotations from purloiners, provided that said telegraph companies shall be saved harmless by said party of the first part from any expense, costs, attorney’s fees and damages incurred in or by reason of any such suit.</p> <p>Seventh. Each of said parties of the second and third parts agrees that it will, whenever requested by said party of the first part, furnish to it a list of the persons who have discontinued said continuous quotations, to the end that said party of the first part may at all times know the names, locations and street addresses of all persons, firms or corporations then receiving said continuous quotations.</p> <p>Eighth. It is further agreed that said telegraph companies may furnish said quotations to any other telegraph company with which either of them now have or may hereafter have any operating contract or any other arrangements, provided that every such, telegraph company shall first sign a contract or agreement, running to said party of the first part, to abide by and conform to clauses two, six, seven and ten of this agreement.</p> <p>Ninth. And the said party of the first part hereby agrees that it has not entered into and will not enter into any contract or arrangement with any other person or company who has or may acquire the right to distribute said quotations, in which contract or arrangement the said party of the first part has agreed or shall agree to pass upon applications of persons applying for the quotation service in a shorter period than those above provided for in the second clause of this contract. And it is further agreed that in passing upon applications for said quotation service presented by either of the second or third parties it will act without discrimination as between said second or third parties, or as between either of them, and any other person or corporation sending in applications for its patrons. And whenever the said party of the first part shall have before it at the same time applications from the same person, firm or corporation presented through two or more persons, telegraph, telephone or ticker companies, if it approves any of said applications, it shall approve them all at the same time and shall notify at the same time all of said persons or companies through whom said applications were presented of such approval. This shall apply either when an application is approved affirmatively or by the failure of the said party of the first part to act upon any application.</p> <p>Whenever either party of the second or third parts shall obtain and deliver to the party of the first part an application for the quotation service from any person, firm or corporation, who at the time of making said application is receiving said quotations with the approval of said first party, then the party of the second or third part may furnish said quotations on said application without waiting for an approval by the party of the first part as hereinbefore provided in other cases.</p> <p>Tenth. The words “continuous quotations” wherever used in the second and eleventh sections hereof shall be construed to mean every service of quotations wherein the price of any commodity shall be quoted oftener than at intervals of ten minutes. Each of said telegraph companies agrees not to furnish said continuous quotations to any person, firm or corporation, except as provided in sections two and eight hereof, the only intent and purpose hereof being to prevent the misuse of said quotations for said unlawful purposes, or in said unlawful business, and not to discriminate between persons desiring them for other than said prohibited purposes.</p> <p>Eleventh. This agreement shall be in force for one year from the date hereof and thereafter until the first party shall give to said second party and third party, or said second party and third party shall give to said first party, sixty days written notice of its or their intention to terminate the same.</p> <p>In witness whereof, the parties hereto have hereunto affixed their signatures and corporate seals, the day and year first above written.</p> <p>Board of Trade of the City of Chicago,</p> <p>rSeal.] By William S. Warren,</p> <p>Attest: President.</p> <p>Geo. P. Stone,</p> <p>Secretary,</p> <p>The Western Union Telegraph Company,</p> <p>[Seal.] By Thos. F. Clark,</p> <p>Attest: Yice-President.</p> <p>A. E. Brewer,</p> <p>Secretary.</p> <p>Postal TelegraphrCable Company,</p> <p>[Seal.] By W. H. Baker,</p> <p>Attest: Yice-President and Gen’l M’gr„</p> <p>Chas. P. Bruch,</p> <p>A.ss*t Secretary.</p> <p>(Endorsed on back) Piled Aug. 5, 1901. S. W. Burnham, Clerk.</p> <p>A like agreement was made with the Cleveland Telegraph Company.</p> <p>The bill’then charges appellants with having entered into a conspiracy tb steal such quotations, either as the same were transmitted over the Telegraph Companies’ wires to their customers, or from the offices of said customers when said quotations are received; and asks for an injunction restraining appellants from obtaining, receiving, selling or distributing such quotations, and for other and further relief. Affidavits were filed, showing that the appellants obtained the quotations after the same were taken from the wires by the patrons of the Telegraph Companies, and written upon their blackboards for the use and information of such people as came into their offices.</p> <p>The motion for a temporary injunction was heard in the Circuit Court, upon demurrer to the bill, and affidavits; resulting in an order restraining appellants, their respective officers, directors, agents and employees, until the further order of the court, from obtaining, receiving, selling or distributing the market quotations of the Board of Trade of the City of Chicago; and from aiding, abetting or assisting others in the taking or selling, or distributing, of such quotations. From this order the appeal is prosecuted.</p>

<p>1. Contracts—Consideration.</p> <p>Whether a contract rests upon a valuable consideration or otherwise must be determined by conditions as they exist when it is made; and, if the promisor supposes that the thing which he seeks to obtain and promises to pay for will be beneficial to him, he cannot avoid his promise on the strength of a subsequent discovery that it was really nonessential, or of no value.</p> <p>3. Federal Courts—Following State Decisions—Application oe Statute to Particular Facts.</p> <p>While the federal court is hound by the construction placed by the highest court of a state upon a local statute, yet, when it becomes necessary to apply the statute, as construed by the local court, to a particular contract, and determine, upon a consideration of all of the provisions of the contract, whether it is violative of the statute as it has been construed, a federal court is entitled to express an independent judgment, the question involved being one of general law, rather than of statutory construction.</p> <p>8. Specific Performance—Contracts against Public Policy.</p> <p>Complainant contracted with defendant to furnish evidence deemed essential to establish the defendant’s interest as an heir in certain mining property, and to commence litigation, if necessary, to recover such interest. The agreement contemplated that he would produce the witnesses to establish the case, and that, in effect, he should have full direction and control of the litigation through attorneys whom he individually was to select and employ, and that he was “to be at all cost in the matter,” in consideration of which the defendant contracted to give the complainant two-thirds of all his interest recovered through law, if legal proceedings were commenced. (Heidi that, even if the contract in question was not voidable under the local statute against maintenance, being, as it would seem, a contract entered into for the purpose of gambling in litigation, yet that such an agreement was voidable on grounds of public policy; and that, even if it should be regarded by a court of law as not so voidable, yet that it was so far meretricious, and tainted with illegality, that a court of equity would not enforce it specifically.</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. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p>

<p>1. Jurisdiction of Federal Courts—Amount in Dispute—Suit by Taxpayer for Injunction.</p> <p>In a suit by a taxpayer to enjoin a city from issuing bonds claimed to be in excess of the constitutional limit of its indebtedness, the power of the city to issue such bonds is the matter in dispute for the purpose of determining whether the amount or value in controversy is sufficient to give a federal court jurisdiction, and not the tax to which complainant would be subjected.</p> <p>2. Same—Following State Decision—Application of Local Laws.</p> <p>While the federal courts are bound by the construction placed by the highest court of a state on a state statute or constitutional provision, when it becomes necessary to apply the statute or provision, as thus construed by the local courts, to a particular contract, and to determine from a consideration of all its provisions whether it is a violation of the law, a federal court is entitled to express an independent judgment.</p> <p>8. Municipal Corporations—Limitation on Power to Create Indebtedness— Iowa Constitution.</p> <p>The constitution of Iowa provides (article 11, § 3) that “no county or other political or municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount in the aggregate exceeding five per centum on the value of the taxable property within, such county or corporation, to be ascertained by the last state and county tax lists previous to the incurring of such indebtedness.” The city of Ottumwa, which was at the time indebted to an amount beyond such limit, passed an ordinance authorizing the issuance of nearly ?100,000 in negotiable bonds to be sold by the city, and the proceeds used in the construction of a waterworks plant to be owned by the city, and such action was subsequently approved by a vote of the electors. The bonds were to be payable at stated times, to bear interest payable semiannually, and to be secured by a mortgage on the water plant. The ordinance also-levied a sinking fund tax ‘of two mills for the current year and every year thereafter until the cost of the plant should be fully paid, and pledged the proceeds of such tax to the payment of the principal and interest of the bonds. It further provided that there should be levied every year after the construction of the waterworks a water tax of 5 mills, or so much thereof as might be necessary, together with the net proceeds of the water rents, to pay the cost of maintenance, etc., “and to pay any of the purchase price or cost of constructing said works, or bonds or mortgages issued therefor, or interest thereon, which shall not be paid from the proceeds of the two mill tax provided for in section 2 thereof.” Any surplus arising from such water tax or water rentals was pledged to the payment of the bonds, and it was provided that no part of the same, principal or interest, should be paid out of any fund, levy, or tax other than those so provided. Held, that such bonds would create an indebtedness of the city within the meaning of the constitutional provision, and that the city was without power to issue the same; that the plain purpose of such provision was to restrict the power of the • legislature to authorize, and of municipalities to create, obligations “in any manner or for any purpose” in excess of the limit imposed, which must be paid by taxation, and that it could not be evaded by the previous levy of a continuing tax, and by providing that the obligation should be paid only from its proceeds, even if such limitation was absolute, as was not the ease with the bonds in question, under which the holders would have the additional right to compel the levy of the water tax to the full limit from year to year for their benefit, if necessary to meet maturing payments, so long as any of the bonds were unpaid.</p> <p>1. Jurisdiction of circuit courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>12. State laws as rules of decision in federal courts, see notes to Railway Co. v. Ziegler, 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>3. Constitutional and statutory limitations of municipal indebtedness, see note to City of Helena v. Mills, 36 C. C. A. 6.</p>

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

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia.</p>

(Appeal from the Circuit Court of the United States for the Eastern: District of Texas. This is a suit in equity brought by Joseph A. Bent against James N. Hall and wife and L. A. Fuller and wife. The averments of the bill, in substance, are as follows: “That he [plaintiff] is a citizen of the state of California, and that the defendants above complained of are each and all citizens of the state of Texas.

<p>1. Bankruptcy—Discharge—Concealment of Property.</p> <p>A bankrupt furnished the money with which two tracts of public land were acquired, one by his son and the other by a third person. After the land was patented such third person conveyed his tract also to the son at the bankrupt’s instance and without consideration. The land had previously been occupied for a number of years by the bankrupt as a part of his ranch, and he continued to occupy and use the same after-wards without accounting for rents or profits to the son, who did not reside upon the land, but had removed to Mexico even before the title was acquired. MeÚ, that either a trust resulted in favor of the bankrupt from his payment of the consideration which he could enforce, or, if the conveyance to the son was for the purpose of defrauding creditors, he held it on a secret trust for the bankrupt, and in either case it was the bankrupt’s duty to schedule the land as a part of his estate, and his failure to do so amounted to a fraudulent concealment of property from his trustee, within the meaning of Bankr. Act 1898, § 14b [U. S. Comp. St. 1901, p. 3427], which justified the court in refusing him a discharge.</p>

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

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

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

Suit for infringement of letters patent No. 605,710, for a process for making frisé plush, granted to George B. Goodall June 14, 1898. From a decree dismissing the bill, complainant appeals.

<p>1. Patents—Patentable Novelty—Haib-Clipping Machine.</p> <p>The Lee patent, No. 382,288, claim 4, for a hair-clipping machine having ball bearings between the reciprocating cutter-plates and the cap, in view of the common use of such bearings for the same purpose in analogous structures, is void for lack of patentable novelty.</p>

In Equity. Suit for infringement of letters patent No. 307,942, for a gravity pleasure road, granted November 11, 1884, to Philip Hinkle, and No. 367,252, for an elevated gravity and cable railroad, granted to E. A. Thompson July 26, 1887. On final hearing.

<p>1. Patents—Contributory Infringement—Sale of Uncompleted Article.</p> <p>One who makes and sells a part of a structure, adapted and intended to be completed by the purchaser, and which when so completed is an infringement of that of a patent, is a contributory infringer, although the uncompleted article as it leaves his hands lacks essential elements of the patented device, and in itself is not an infringement, where, unless so completed, it is not operative and has no commercial value.</p> <p>2. Same—Liquor Cabinet.</p> <p>The Berner patent, No. 537,434, for a combination cabinet for liquids on draught, claims 1 and 2 construed, and defendant held chargeable with contributory infringement in making and selling the shell of a cabinet adapted to be completed by the insertion and connection of pipes and faucets, and which, on such completion, is substantially the structure of the patent.</p> <p>¶ 1. Contributory infringement of patents, see notes to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 485.</p>

<p>In Equity. Suit for infringement of letters patent No. 469,809, granted to William Stanley March 1, 1892, for a system of electrical distribution. On motion for preliminary injunction.</p>

<p>In Equity. Suit for infringement of letters patent No. 324,818, for • an improved trimming- attachment for sewing machines, granted August 25, 1885, to William S. Clark and John F. Murphy. On final hearing.</p>

<p>1. Patents—Invention—Trimmer for Sewing Machines.</p> <p>The Dewees patent, No. 309,699, for a trimming attachment for sewing machines, construed, and held valid as showing patentable invention.</p>

<p>1. Patents—Action foe Royalties—Defense of Adjudged Invalidity of Patent.</p> <p>It must clearly and certainly appear from the opinion of the circuit court of appeals in an infringement suit that the court held the patent void, before such decision can be availed of, as matter of law, to defeat an action to recover royalties from a licensee under such patent.</p> <p>¶ 1. Effect of previous adjudications as to patents on circuit court of appeals, see notes to Thomson-Houston Electric Co. v. Hoosick Ry. Co., 3 C. C. A. 565; National Cash Register Co. v. American Cash Register Co., 27 C. C. A. 427; Emigration Co. v. Gallegos, 32 C. C. A. 475.</p>

In Equity. Suit for infringement of letters patent No. 603,619, for a paper decoration, granted to Rudolf Burger May 10, 1898. On motion for preliminary injunction.

<p>2. Shipping—Recovery op Prepaid Freight not Earned—Custom.</p> <p>The settled rule of commercial law that freight prepaid, but which is not earned by the delivery of the goods, is to be refunded, in the absence of special agreement to the contrary, where the loss is not due to atiy fault of the shipper, cannot be overcome by proof of a local custom that freight prepaid is not to be returned in case the vessel is lost on the voyage.</p> <p>2. Same—Contract Made by Bills op Lading—Variance by Parol.</p> <p>Bills of lading in the ordinary form, which show prepayment of the freight, in connection with the established rules of law, constitute a completed contract, binding the carrier to refund the freight, if not earned; and, in the absence of fraud or mistake, parol evidence is not admissible to change the conditions of such contract.</p> <p>¶ 2. See Evidence, vol. 20, Cent. Dig. § 1827.</p>

<p>In Admiralty. Suit in rem for loss of cargo.</p>

<p>1. Equity Jurisdiction—Sufficiency of Bill.</p> <p>A bill held, as against a demurrer, to state a cause of action in equity to charge defendant as trustee with respect to mining property, on the ground that the person from whom defendant acquired title obtained the same while acting as receiver of the property and in violation of his duty to complainant, to conserve whose interests as owner he was appointed..</p>

<p>1. Bankruptcy—Hearing before Referee—Excluded Testimony—Record.</p> <p>Under General Orders in Bankruptcy No. 37 (32 O. C. A. xxxvi, 89 Fed. xiv), providing that in proceedings in equity instituted for the purpose of carrying into effect the provisions of the act, or for enforcing the rights or remedies given by it, the equity rules of the supreme court of the United States shall be followed as nearly as may be, it is the duty of a referee in bankruptcy to take down all excluded testimony, and make the same a part of the record, with, his ruling on the objections, and also the exceptions which may be taken notice of in connection with such testimony.</p>

<p>:1. Schools—Chinese—Separate Schools—Constitutional Bights.</p> <p>Pol. Code Cal. § 1662, provides that, where separate schools have been established by the school trustees for children of Mongolian descent, such children must not be admitted into any other' schools. Eeld, that, regardless of the motive in the enactment of the statute, where the Chinese schools offered the same advantages as the other schools, the operation of the law was not a violation of Const. U. S. Amend. 14.</p> <p>'2. Decree—Default—Complaint—Insufficient Allegations.</p> <p>Though a defendant may be in default, the complainant is not entitled to a decree pro confesso where the allegations of his complaint are insufficient to support a decree in his favor.</p> <p>¶2. See Equity, vol. 19, Cent. Dig. § 958.</p>

<p>1. Customs Duties—Chinese Spirituous Beverages.</p> <p>Chinese spirituous beverages imported in bottles containing on the average one-tenth of one gallon, and in spirituous strength below proof, are dutiable at $2 per gallon, under paragraph 311 of the tariff act of 1883.</p> <p>2. Same—Bottles Containing Beverages.</p> <p>Bottles containing Chinese spirituous beverages assessable under paragraph 311 of the tariff act .of.1883 are themselves subject to duty of three cents each, under paragraph 310, which provides that bottles containing spirituous liquors shall pay the said rate unless otherwise specially provided for.</p>

<p>1. Customs Duties—Offer to Enter—Effect.</p> <p>Where goods were tendered for consumption entry before 4 o’clock on July 24, 1897, and on refusal of the tender a warehouse entry was made on the 26th, they were dutiable under the tariff act of 1894, and not the act of 1897 [ü. S. Comp. St. 1901, p. 1626]. .</p>

<p>In Equity. On exceptions to answer.</p>

<p>1. War—Prizes—Destruction to Prevent Recapture.</p> <p>A captured vessel is not appropriated “for the use of the government,” within the meaning of Rev. St. §§ 4615, 4624, 4625 [TJ. S. Comp. St. 1901,' pp. 3127, 3130], so as to entitle the captors to prize money where they destroy it to prevent recapture.</p> <p>2. Same—Order of Navy Department.</p> <p>Order 492 of the navy department providing for four alternatives: (1) Sending the prize to the nearest home port, (2) converting it to public ‘ use In ease of need; (3) selling it if it may not be sent in for reasons indicated; (4) destroying it if it cannot be sold or there be imminent danger of recapture,—does not authorize destruction of the prize with the view of converting it to public use.</p> <p>S. Same—Bounty.</p> <p>Where captors of a vessel destroy it to prevent recapture, they- are not entitled to prize money, but to bounty, under Rev. St. § 4635, providing that there shall be paid as bounty to the captors of a vessel of war which is immediately destroyed for the public interest, but not in consequence of injuries received in action, $50 for every person who shall be on board at the time of such capture.</p>

In Equity. Ancillary suit for liquidation of the American Naval Stores Company. On application for an order requiring the receiver to turn over property to a receiver appointed by other courts.

At law. On demurrer to complaint. The complaint in this action among other things avers: That Frank A. Wells died intestate at Reno, Nev._, March 1, 1902; that plaintiff is the duly appointed and qualified- administrator of his estate; that at the time of his death, and for a long time immediately prior thereto, the defendant in a careless, reckless and negligent manner maintained across the premises described in said complaint “electric wires, and conducted electricity upon…

<p>1. Bankruptcy—Concealing Property—Evidence—Sufficiency.</p> <p>The mere fact that there was a shrinkage of $12,000 in the assets of a bankrupt within a year of his failure was not sufficient proof that he, had that amount of property and concealed it from his creditors and the’ trustee, when his petition in bankruptcy was filed.</p> <p>2. Witnesses—Credibility.</p> <p>A witness may be as thoroughly discredited by the inherent improbabilities of his testimony as by the direct testimony of other witnesses.</p> <p>8. Bankruptcy—Application for Discharge—Burden of Proof.</p> <p>Where on an application for the discharge of a bankrupt, it was shown that he had received money after the filing of the petition, and without the authority of the trustee, and the disposition of such money was not disclosed, the burden of proving that it was paid over to the trustee was on the bankrupt.</p> <p>4. Same—Testimony at Creditors’ Meetings—Admissibility.</p> <p>By Bankr. Act, § 7a, subd. 1 [U. S. Comp. St. 1901, p. 3424], the bankrupt is directed to “attend the first meeting of his creditors” and (subdivision 9 [U. S. Comp. St. 1901, p. 3425]) “when present * * * and at such other times as the court shall order, submit to an examination concerning * * * matters which may affect the administration and settlement of his estate; but ho testimony given by him shall be offered in evidence against him in any criminal proceeding.” Meld that, though the testimony so given by the bankrupt proved a fraudulent concealment of property by him, it could nevertheless be used to defeat his application for discharge.</p> <p>5. Same—Ground for Refusing Discharge.</p> <p>If a bankrupt willfully and fraudulently conceals any of his property from the trustee, he is not entitled to a discharge.</p> <p>6. Same—Preponderance of Evidence.</p> <p>A fair preponderance of the credible evidence is all that is needed to show a fraudulent concealment of. property by a bankrupt, so as to defeat his discharge.</p> <p>7. Same—Evasive Answers by Bankrupt.</p> <p>While evasive and disingenuous testimony by a bankrupt is not a ground for refusing a discharge, it is a material consideration in determining his credibility when testifying as to what became of certain money.</p> <p>8. Same—Evidence—Sufficiency.</p> <p>Evidence in an application for the discharge of a bankrupt examined, and held to show that certain money received by him after the filing of the petition had not been paid to the trustee.</p> <p>¶5. See Bankruptcy, vol. 6, Cent. Dig. § 735.</p>

<p>1. Internal Revenue—Tax on Distilled Spirits—Punishment op Fraud— Exemption prom Liability—Repeal op Statute.</p> <p>Rev. St. § 3257 [U. S. Comp. St. 1901, p. 2112], punishing distillers who defraud or attempt to defraud the United States of the tax on spirits distilled by them, is not repealed by Act March 3, 1877 (19 Stat 393 [U. S. Comp. St. 1901, p. 2137]), providing for the establishment of a bonded warehouse exclusively for the storage of grape brandy, removal of such spirits thereto, their deposit and withdrawal, etc., and Act October 18, 1888 (25 Stat. 560 [U. S. Comp. St. 1901, p. 2141]), extending the provisions of the act of March 3, 1877, to distillers of all fruit brandies.</p> <p>3. Same—Construction op Statute.</p> <p>Rev. St § 3257 [U. S. Comp. St. 1901, p. 2112], punishes every person engaged in carrying on the business of distiller who shall defraud or attempt to defraud the United States of the tax on spirits distilled by him. Held, in view of the legislative intent, manifested by legislation for many years, that “spirits distilled” should include apple brandy, a distiller of apple brandy was properly indicted under section 3257 for an attempt to defraud the government of taxes due by him.</p>

The third count of the indictment is the only count insisted on, and ■reads as follows: “And the grand jurors aforesaid upon their oaths aforesaid do further present that on the 20th day of June, 1900, a case came on for hearing before G. B. Randolph, a United States commissioner for the Northern district of Alabama, to wit, the case of the United States against A. N. McLeod on a •charge of violating section 5440 of the Revised Statutes of the United States [U. S. Comp.

<p>On motion of defendant to quash the service of summons, recall an execution, and vacate a default and judgment entered by a state court before removal of the cause.</p>

<p>In Equity. On exceptions to answers.</p>

<p>In Equity. Suit to foreclose chattel mortgage. On application for appointment of a receiver and for an injunction.</p>

<p>On Motion to Strike Off Judgment of Nonsuit.</p>

<p>1» General Verdict—Special Finding—Necessity.</p> <p>The court instructed that, if defendants were actuated by malice, when, in executing a writ of attachment, they broke open the door of the engine room of plaintiff’s mill, and stopped the machinery, and carried away the main belt, the jury might give exemplary damages. In reply to a question by the foreman, they were told that they might state, if finding for plaintiff, how much of their verdict was for actual and how much for exemplary damages. Meld, that a general verdict would not be set aside for want of such statement, as it covered the issues, and whether the court should require moré in order to simplify or eliminate questions rested in its discretion.</p> <p>2. Harmless Error.</p> <p>The action of the court in not insisting on the special finding, if prejudicial to either, was harmful to plaintiff, rather than defendant.</p> <p>8. Judgment Notwithstanding Verdict.</p> <p>Judgment could not be rendered for the defendant notwithstanding the verdict where the record showed that the issues joined were not immaterial.</p> <p>4. Instructions—Immaterial Issues.</p> <p>In an action for damages by reason of defendants’ conduct in executing a writ of attachment by .breaking into plaintiff’s mill, stopping the machinery, and carrying away the main belt, there was no evidence or claim that plaintiffs might have procured another belt. The court instructed that from what the court and jury knew such belts could not be got at stores and put on, and that defendants would be liable for damages caused by them in keeping the belt until it was replevied. Meld, that this was merely illustrative of a part of the situation not in issue, and was immaterial, and not prejudicial.</p> <p>5. Fixtures—Machinery—Main Belt.</p> <p>According to the law of Vermont, the main belt of a steam marble mill, connecting the drive wheel with the main shafting, and furnishing the motive power, is a part of the realty.</p> <p>6. Wrongful Attachment—Exemplary Damages.</p> <p>Where operation of plaintiff’s marble mill and quarry, valued at $100,000, together with personalty valued at $40,000, free of incumbrance, was stopped by a sheriff and constable, in executing a writ of attachment, by breaking into the mill and carrying away the main belt, instead of securing a lien of record under V. S. §§ 1101, 1103, exemplary damages might be granted.</p> <p>7. Same—Excessive Verdict.</p> <p>A verdict for $996 could not be deemed excessive, exemplary damages being allowable, and the actual injury being incapable of definite ascertainment.</p> <p>8. Federal Courts—State Laws.</p> <p>A motion for an adjudication by the court that the cause of action arose from the willful and malicious act of the defendants, and that they ought to be confined in close jail, and for a certificate thereof upon the execution, according to V. S. §’ 1751, cannot prevail, as Rev. St. U. S. § 914 [U. S. Comp. St. 1901, p. 684], providing that the practice, pleadings, and forms and modes of procedure in civil causes other than those in equity and admiralty cases shall conform to those in the state courts, applies to those for procuring the judgment, and not to those subsequent thereto, and section 916 [page 684], entitling the party recovering a judgment In a common-la-w cause to similar remedies upon it to those of the state “to reach the property of the judgment debtor,” applies to property, and not to the person.</p> <p>¶ 8. Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. G. A. 594; Insurance Co. v. Hall, 27 C. C. A. 392.</p>

<p>1. Corporations—Liability of Stockholders—Enforcement—Injunction.</p> <p>Creditors of an insolvent New Jersey corporation, who claim to bave causes of action against certain stockholders by virtue of Laws N. J. 1896, c. 185, §§ 21, 48, 49, which, if the insolvency had not intervened, could only have been enforced by a creditors’ bill after a judgment at law had been obtained against the corporation, execution issued, and returned unsatisfied, ought not to be restrained from prosecuting their claims against the corporation to judgment after proceedings in bankruptcy begun, but before adjudication, it being uncertain whether the trustee in bankruptcy, when appointed, could enforce the liability of the stockholders until the creditors had reduced their claims to judgments; but proceedings on the judgments will' be enjoined, and only one proceeding allowed for the benefit of all, with the trustee a party thereto.</p> <p>¶1. Stockholder’s liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry & M. Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.</p>

<p>1. Internal Revenue—Administrator’s Bond—Liability to Tax—Construction op Statute.</p> <p>Act March 2, 1901 (31 Stat. 945 [U. S. Comp. St. 1901, p. 2304]), being an amendment of Act June 13, 1898 (30 Stat. 460 [U. S. Comp. St. 1901, p. 2284]), for the purpose, as shown in its title, of reducing taxation, provided: “Seven. Bond: For indemnifying any person or persons, firm or corporation who shall have become bound or engaged as surety for the payment of any sum of money, or for the due execution or performance of the duties of any office or position and to account for money received by virtue thereof, fifty cents.” The original act had added to this provision, “all other bonds of any description except such as may be required in legal proceedings, not otherwise provided for in this schedule.” Held that, in view of its purpose to reduce taxation, the amending act would be construed as referring only to bonds given to indemnify sureties, and would not cover the original bond of an administrator, which, by ruling of the commissioner of internal revenue, would have been exempted under the original act as a bond required in a legal proceeding.</p> <p>2. Same—Doubtful Constitutional Power.</p> <p>The constitutional power of congress to impose a tax on an administrator’s bond running to a state court having probate jurisdiction being questionable, that construction of the statute will be adopted which will relieve it from the imputation of an exercise of a doubtful power.</p> <p>8. Statute Imposing Tax—Ambiguity—Construction in Favor of Taxpayer.</p> <p>Where a statute imposing a tax is susceptible of two constructions, and the legislative intent is in doubt, the doubt should, as a rule, be resolved in favor of the taxpayer.</p>

<p>1. Tenants in Common—Advancement of Taxes—Contribution.</p> <p>One who, as trustee, owning an undivided half of certain land, pays taxes on the whole, is entitled, as a tenant in common, to contribution from the other owners, and therefore to a lien on the land for the amount advanced.</p> <p>2. Vendor—Defense of Title—Contribution from Vendee.</p> <p>• The owner of land, who conveyed, with covenants for quiet enjoyment and of warranty, an undivided portion thereof, having defended a suit involving all the land, without any notice from the grantee requiring him to so defend, was entitled to contribution for expenses Incurred thereby.</p> <p>S. Equity—Jurisdiction—Multiplicity of Suits.</p> <p>In a suit for partition a cross-bill was filed by one of the co-owners, asserting a lien for taxes paid and advanced on the land, and seeking contribution. It appeared that plaintiffs were entitled to contribution from the complainants in the cross-bill for expenses incurred in defending a suit involving the whole land. Held, that the two claims could be adjusted in the parfition suit, and it was not necessary for plaintiffs to file a bill for contribution, or bring an action at law.</p>

<p>1. Copyright—Depositing Copies—Evidence.</p> <p>Evidence in a suit for an infringement of a copyright held sufficient to show that the author had mailed two copies of the book addressed to the librarian of congress, notwithstanding the register of copyrights certified that he could not find any copies on file.</p> <p>2. Same—Ftling Copy of Title of Work—Variance.</p> <p>The copy of the title of a book filed to obtain a copyright was “The Captain of the Rajah. By Howard Patterson. Illustrated by Warren Sheppard. A thrilling and realistic sea story from a noted sailor’s pen, and lavishly illustrated by the pencil of America’s greatest marine artist.” The title of the book published was “The Captain of the Rajah. A Story of the Sea, by Howard Patterson. Illustrated by Warren Sheppard.” Beld, that the author did not lose his copyright by reason of publishing the book with the shorter title.</p> <p>8. Same—Residence or Citizenship of Author.</p> <p>In a suit for an infringement of a copyright, on the issue of whether the author was a citizen or resident of the United States at the time he applied for the copyright, the certificate from the librarian described him as of New York, and the author testified that he was at the time of the trial a resident of New York, and that he had mailed the two copies to the librarian of congress in New York more than 10 years before. Beld, that this was sufficient proof of the author’s residence, in the absence of any evidence to the contrary.</p> <p>4. Same—Place of Printing—Proof.</p> <p>Complainant in a suit for an infringement of a copyright of a book printed in 1890 is not obliged to prove that it was printed from type set within the United States, or from plates made therefrom; Rev. St. § 4956 [U. S. Comp. St. 1901, p. 3407], being amended as to require such proof by an act passed March 3, 1891.</p> <p>5. Same—Abandonment.</p> <p>In a suit for an infringement of a copyright it appeared that the author had type set up, plates taken therefrom, and sheets to the amount of 2,000 impressions struck off, and some of these were bound, distributed, and sold. A judgment was rendered against him, execution issued, and the plates were levied on and sold to a third person. Beld, that the author, as against a purchaser of the plates from the third person, had not abandoned his copyright of the book.</p> <p>6. Same—Estoppel.</p> <p>The author, as against such purchaser, was not estopped from enforcing his copyright rights.</p> <p>7. Same—Limitation.</p> <p>Rev. St. § 4968 [U. S. Comp. St. 1901, p. 3416], limiting actions for forfeitures or penalties under the copyright laws, is not applicable to a suit for an injunction against and damages for an infringement of a copyright.</p>

<p>1. Condemnation for Post Office—Land Dedicated for a Park—Contest— Compensation.</p> <p>Under the laws and decisions of Massachusetts, governing in a proceeding by the United States to condemn land in that state for a post office, a city in which land has been dedicated for use of its inhabitants as a public park cannot have compensation therefor, it having no legal estate in the land; but it may contest the taking on the ground that the public use as a post office Is not superior to the public use as a park.</p> <p>¶ 1. See Eminent Domain, vol. 18, Cent. Dig. § 219.</p>

<p>1. Conspiracy—Fraud—Complaint.</p> <p>A complaint for conspiracy alleged that defendants jointly confederated to fraudulently induce plaintiff to exchange stock for certain real estate belonging to one of the defendants; that three of the defendants, who ostensibly acted as plaintiff’s agents, in fact represented the real estate owner, and fraudulently stated to plaintiff that the land was worth $48,800, and that two other defendants were conservative appraisers, acquainted with the property, who would appraise the same; that such defendants executed a written appraisement valuing the property at such sum, though it was not worth more than a third thereof, with intent to deceive and defraud plaintiff, and that representations of the owner as to a reason for selling were substantiated, defendants, ostensibly acting as plaintiff’s agents, intending to induce plaintiff not to make an investigation of the value of the property, by reason whereof, plaintiff exchanged the stock for the, property without such examination; and that the owner’s agent received 600 shares thereof as his share of the profits of such conspiracy. Held, that the complaint was not demurrable, as against any of the defendants, on the ground that the fraud alleged was a mere expression of opinion as to value.</p>

<p>1. Collision—Steam Vessels Crossing—Leaving Wharf When Another Vessel is Approaching.</p> <p>The steamer Belle Horton and the tug Joseph M. Clark were both making regular passenger trips, from a wharf, across Hampton Roads. In the evening, at a time when the Horton was due, and was in fact approaching the wharf, fully lighted up, and only 400 or 500 feet distant, the Clark cast off and started on the return trip, attempting to pass across the bows of the Horton, which, being to the starboard of the Clark, was the privileged vessel, under the navigation rules. A collision resulted, in which the Horton was damaged. Seld, that the Clark was in fault, both for leaving the wharf at the time and under the circumstances, and for violation of the rules thereafter; the danger of collision being such as to impose upon her the duty of exercising the greatest care and skill from the time of leaving. Also held, under the evidence, that the Horton was not in fault.</p>

In Admiralty. Bibel for seamen’s wages. On petition by receivers of the circuit court for discharge of vessel from custody.

At Taw. Application for order for the production of papers, under sections 109 and 123 of the Revised Statutes [U. S. Comp. St. 1901, pp. 60, 63], in the contested election of congressmen. At the general election, November 4, 1902, in the Tenth congressional district of Pennsylvania, George Howell, the Democratic candidate, received a majority of 461 votes, and thereupon his opponent, William Connell, gave notice of contest.

<p>In Admiralty. Suit against a tug for the loss of a scow, and action against the owner to recover for the death of the seowman.</p>

<p>1. Customs Duties—Crude Hematite Ore.</p> <p>Crude hematite ore, which in its present state cannot be used as a pigment or color, is assessable at 40 cents per ton as “iron ore,” within paragraph 121, Tariff Act July 24, 1897 [U. S. Comp. St. 1901, p. 1636], and not at 30 per cent, ad valorem, as “color,” under paragraph 58.</p>

<p>1. Set-Off—Claim in Different Rights—Personal and Representative Capacity.</p> <p>Since a husband cannot recover choses in action of which his wife died seised, and to which he is entitled as a distributee, except through administration, such claims are not due to him personally, and cannot, therefore, be set off against a personal debt due by him to the plaintiff.</p>

<p>Appeal by the importers from a decision of the board of United States general appraisers which affirmed a decision by the collector of customs at the port of New York.</p>

<p>Appeal by the United States from a decision of the board of United States general appraisers, which reversed a decision by the collector of customs at the port of New York.</p>

<p>1. Inspection of Documents before Trial—Right to Relief.-</p> <p>Rev. St. U. S. § 724 [U. S. Comp. St. 1901, p. 583], provides that in the trial of actions at law the federal courts may, on motion and notice, require the parties to produce books or writings in their possession or power, containing evidence pertinent to the issue, in eases and under circumstances where they might be compelled to produce the same by the ordinary rules of chancery. Held, that a party litigant had the right to compel production and inspection of books before trial at law, especially where a bill of discovery had shown that books existed which contained the entries sought to be proved.</p> <p>2. Sam:e—Nature of Order.</p> <p>An order for the inspection by a party litigant, before trial at law, of books which contain entries with which he has no concern, and which he ought not to see, will be conditioned to require the deposit of the books in the clerk’s office, and to provide for the attendance of a representative of the opposite party, the relevancy of contested entries to be determined in the first instance by the clerk, with summary application for review thereof to the judge at chambers.</p>

<p>On Demurrer to Declaration.</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>Appeals by the United States from a Decision of the Board of United States General Appraisers.</p>

<p>1. Customs Duties—Undecorated Fire Brick Weighing Over Ten Pounds.</p> <p>Fire brick, not capable of decoration, over 10 pounds in weight, designed for linings to retort ovens, are dutiable, under the similitude clause of section 7 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1693], as “fire brick, weighing not more than ten pounds each, not glazed, enameled, ornamented, or decorated,” under paragraph 87 [page 1632], and not under paragraph 97 [page 1633], covering decorated or undecorated articles and wares of earthy or mineral substances not specially provided for.</p>

<p>1. Customs Duties—Time of Accrual—Imported Goods—Deposit nr Bonded Warehouses—Effect.</p> <p>• Customs Administrative Act, § 20 [XT. S. Comp. St. 1901, p. 1950], provides that any merchandise deposited in bonded warehouses, may be withdrawn for consumption within three years from importation, on payment of the duties and charges “to which it may be subject by law at the' time of such withdrawal.” Held that, in the absence of a statute releasing them, the duties payable at the time of withdrawal were such as accrued at the time of importation, and hence the fact that after importation from Porto Eico, but before withdrawal from the bonded warehouse, Porto Eico had become United States territory, would not relieve the importer from liability for customs duties.</p> <p>¶ 1. See Customs Duties, vol. 15, Cent. Dig. § 8.</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>1. False Impersonation—Revenue Officers—Indictment.</p> <p>An indictment charging that defendants, unlawfully and feloniously, falsely represented themselves to be revenue officers of the United 'States, and in such assumed character did demand and receive $200 from I. for a pretended violation by the latter of Act Cong. June 13, 1898 [U. S. Comp. St. 1901, p. 2293], in respect of knowingly and willfully buying washed revenue stamps, etc., and with having such washed and restored revenue stamps in possession knowingly and without lawful excuse, as prohibited by Rev. St. § 5448 [U. S. Comp. St. 1901, p. 3679], was sufficient.</p> <p>2. Same.</p> <p>An indictment charging that defendants, with intent to defraud one I., unlawfully and feloniously did falsely assume and pretend to be officers and employés acting under the authority of the United States, to wit, revenue officers and employés, and in such pretended character did fraudulently demand and obtain from I. a sum of money, to wit, $200, etc., sufficiently stated the offense described by Act April 18, 1884 (1 Supp. Rev. St. p. 425 [U. S. Comp'. St. 1901, p. 3679]), prohibiting the impersonation of a United States officer, etc.</p>

<p>1. Customs Duties—Sago Flour.</p> <p>Sago flour is entitled to free entry under paragraph 652 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1687] as “sago, crude,” and- not dutiable under paragraph 285 [U. S. Comp. St. 1901, p. 1653] as “starch,” or under paragraph 20 [U. S. Comp. St. 1901, p. 1628] as a drug, or under section 6 [U. S. Comp. St. 1901, p. 1693], covering raw or unmanufactured articles not otherwise provided for.</p>

<p>1. Libel—Damages—Amount.</p> <p>Where, in an action by a lumber dealer and building contractor for libel, he introduced evidence to prove compensatory damages, that his business loss amounted to from $20,000 to $24,000, resulting from the libel, but defendant in rebuttal showed that a part of the subscribers to its mercantile reports, in which the libel was published, had not withdrawn credit from plaintiff by reason of the publication, a verdict assessing plaintiff’s damages at $5,000 was excessive, and should be reduced to $3,000.</p>

In Bankruptcy: On review of the allowance by the referee of the claim of D. D. Muir, receiver of the Merchants’ National Bank, on 78 notes, amounting to $139,850, indorsed by the bankrupt.

<p>1. Arbitration—Provision in Contract—Condition of Action.</p> <p>Provision for arbitration in a bill of sale, following after an express agreement to pay, does not, on tbe arising of a dispute as to whether, under the contract, certain expenses are to be taken as an element of “cost to vendor,” make an award of arbitrators a condition precedent to a right of action.</p> <p>2. Arbitration—Revoking Agreement.</p> <p>Provision in an arbitration clause in a bill of sale that failure of either' party to appoint an arbitrator shall authorize the other to make an appointment for the one in default does not prevent a revocation of the agreement for arbitration.</p> <p>¶ 1. See Arbitration and Award, vol. 4, Cent. Dig. § 30.</p>

<p>On Motion for Security for Costs.</p>

<p>1. Corporations—Suit for Dissolution—Sufficiency of Bill.</p> <p>In a bill by members of an insurance association for its dissolution, It is essential to allege the insolvency of the corporation, and that complainants have an interest in the fund, and such allegations must be explicit and based on facts pleaded.</p>

<p>1. Collision—Vessels Lying at End of Pier—New York Statute.</p> <p>Under tbe New York statute making it unlawful for a vessel to lie at tbe end of a pier, where she is liable to be injured by vessels entering the adjacent slips, under penalty of being denied recovery for such an injury, the fact that a vessel is so lying does not preclude a recovery for an injury caused by another vessel which is not at the^ time entering or leaving an adjacent dock.</p> <p>-2. Same.</p> <p>In clearing a slip in East river for a steamship, tugs placed a barge and canal boat outside of three other boats at the end of the pier below. The steamship, which was lying 400 feet off the ends of the piers, headed up stream, having decided not to dock at that time, swung around to go down the river, and in doing so struck the boats at the end of the pier, causing their injury. -Held1, that the tugs were not chargeable with fault contributing to the injury, which was due solely to the fault of the steamship in negligently going about as she did, instead of moving ahead before turning.</p>

<p>Appeal by the importer from a decision of the board of general appraisers which affirmed the classification by the collector of the importation in question.</p>

<p>1. Master and Servant—Fellow Servants.</p> <p>A foreman of a workroom in a factory is not, by reason of such employment, a vice principal and representative of the employing corporation with respect to other workmen in such room.</p> <p>¶ 1. Who aré fellow servants,, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Canadian Pac. Ry. Co. v. Johnson, 9 C. C. A. 596; Flippen v. Kimball, 31 C. C. A. 286.</p> <p>See Master and Servant, vol. 34, Cent. Dig. § 427.</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 Southern District of New York'..</p>

<p>1. Equity—Evidence—Objections to Admissibility of Documents.</p> <p>There is no objection to a court’s giving a certificate that an abandoned application for a patent, or a certified copy thereof, will be admitted in evidence in a suit in equity, if such certificate is required by the patent office as a prerequisite to the production or certification of the document; it being the duty of the court, under the rule of the supreme court, to receive it in evidence and make it a part of the record notwithstanding any objection to its relevancy, materiality, or pertinency.</p>

<p>T. Bankruptcy—Specifications—Opposing Discharge—Amendment.</p> <p>Specifications opposing a bankrupt’s discharge, tbougb entirely defective, may be amended at the discretion of the court.</p> <p>'9. Same—Signature.</p> <p>Specifications opposing a petition for a bankrupt’s discharge (form No. 58) must be signed and sworn to by the opposing creditor, and, if therfe be more than one creditor, by each opposing creditor, and not alone by the attorney or counsel.</p> <p>Same—Verification.</p> <p>The verification to specifications opposing a petition for a bánkrupt’s discharge must be in the form prescribed by the creditor’s petition (form No. 3), to wit, that the creditor hereby makes solemn oath that the statement contained in the foregoing specification of grounds of opposition to the bankrupt’s discharge subscribed by him (or them) are true.</p> <p>¶1. See Bankruptcy, vol. 6, Cent. Dig. § 716.</p> <p>4. Same—Signature by Corporation.</p> <p>Whbre the creditor opposing a bankrupt’s discharge is a corporation, the signature to the specifications must be in the form prescribed by the supreme court under Bankr. Act 1867 for the petition of a corporation (form No. 3), to wit: “In witness whereof I have hereunto subscribed my name as president (or other officer or agent) of said corporation and affixed the seal of the same this-day of-—followed by the signature of the officer and seal of' the corporation.</p> <p>5. Same—Signature and Verification by Partnership.</p> <p>Where the opposing creditor to a bankrupt’s discharge is a partnership, the verification and signature of the firm to the specifications may be made by one of the partners authorized to sign the firm name.</p> <p>6. Same—Verification by Attorneys or Agents.</p> <p>Specifications in opposition to a bankrupt’s discharge cannot be verified by the oaths of attorneys or solicitors or other agents, in the absence of a previous order of court allowing the same, in which event both the order and the oath should state the reasons therefor.</p>

In Bankruptcy. On petition to review action of referee. This is a petition to review the action of the referee on the application of the trustee for instructions by the court. Held: since the filing of the claim. The proof also shows that the matter of said securities so holden by the bank was in litigation at Huntingdon, the home of the attorneys and the trustee all of the time of the pendency of this bankruptcy.

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

<p>1. Removal of Causes—Federal Question—Quo Warranto Proceeding by State.</p> <p>An action in the nature of quo warranto to determine the right of an organization to exercise the functions and franchises of an irrigation district under the laws of California, in which the information of the attorney general recites the proceedings by virtue of which defendant claims to have been organized as an irrigation district, and charges that they were not in conformity to the laws of the state authorizing the organization of such districts, but were in violation of the same and of the constitution of the state, is not one arising under the constitution of the United States, and removable into a federal court on that ground, because it is also charged as a further ground of illegality that the acts of defendant were in violation of certain provisions of the federal constitution.</p> <p>3. Same.</p> <p>Nor does an allegation in such information, in effect, that if the law of the state known as the “Wright Act,” under which the defendant was professedly organized, authorized the proceedings taken, such act was void, as in violation of the provisions of the constitution of the United States, state a controversy with respect to a federal question, which gives a federal court jurisdiction, since such question is only contingently involved; and, moreover, the Wright Act has been adjudged constitutional by the supreme court of the United States, and its constitutionality is therefore no longer a federal question.</p> <p>¶ 1. Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.</p>

<p>1. Admiralty—Suit to Enforce Maritime Liens—Disposition of Surplus Funds.</p> <p>Conceding the jurisdiction of a court of admiralty in a suit in rem to enforce liens against a vessel to direct the payment of maritime creditors who have proved their claims, but have been adjudged without lien, from the remnants remaining in the registry of the court after all liens have been satisfied, as against the owner of the vessel, still such jurisdiction should not be exercised where such owner is an insolvent corporation, represented by a receiver appointed by a state court in insolvency proceedings to wind up the affairs of the corporation; but in such case the remnants should be paid over to the receiver, to be distributed between the maritime and other creditors in accordance with the laws of the state. The admiralty court may, however, if the pleadings are sufficient to support judgments in personam against the owner, determine the amount due each of such maritime claimants, and enter judgment therefor.</p>

<p>Submitted on application of G. W. Coleman for order revoking discharge heretofore granted to bankrupt.</p>

<p>1. Parties—Right to Maintain Suit—Effect of Champertous Contract.</p> <p>Tbe right of a complainant to maintain a suit is not affected by a contract constituting a third person its agent to prosecute and collect all claims against defendant for a per cent, of the amount recovered, even though such contract may have been champertous.</p>

This action is brought to recover a balance of $6,000 claimed to be due upon a note of $16,000, dated January 20, 1892, made by the defendant in error to William Barth, payable four years after date. Held: the final question remains, which party in interest must be held responsible for and must bear the loss incurred through the subsequent proceedings in the name of the vendor for a foreclosure sale under the prior mortgage?

On the 6th of July, 1899, the district attorney of the United States for the Eastern district of Michigan, filed an information seeking to. condemn 581 diamonds, alleged to have been forfeited. The record discloses that these goods were seized when about to be unlawfully imported and smuggled into the United States on June 28, 1899, at Detroit, Mich., by one Louis Bush.

This is an action in trover, brought by the United States to recover the value of certain logs and lumber converted by the plaintiff in error from pine timber standing on mineral lands in South Dakota belonging to the United States, on which locations had been made by other parties. The first count in the declaration alleges the conversion of 668,000 feet of pine lumber, and the second count the conversion of the same number of feet of pine logs.

<p>1. Collision—Contributory Fault—Presumption.</p> <p>The fault of an overtaking vessel for a collision being established, in determining the question of the contributory fault of the vessel overtaken, every reasonable doubt should be resolved in her favor.</p> <p>2. Same—Overtaking Vessels—Effect of Suction.</p> <p>The Owen, a large and heavily laden steamer, passing up the Detroit river, overtook and attempted to pass the Atlantis, a much smaller vessel, and while so passing the Atlantis sheered and came into collision with the Owen. It did not appear that the sheer was due to any action of her helm, but rather that it was the effect of suction caused by the Owen, and that the helm was not changed until the effect of the suction was felt, when it was used in an effort to overcome it. Held that, it being the duty of the Owen, as the overtaking vessel, to keep out of the way and to pass at a safe distance, taking into account the danger from suction, the Atlantis was not in fault for not changing her course to give, more room, even if it could safely have been done, which was a matter in dispute, nor because of any unskillful maneuvers attempted in extremis, but that the fault was solely that of the Owen in coming too close to the Atlantis without necessity.</p>

The defendant in error, Frank Murray, brought suit in trespass on the case ■against the Standard Oil Company for personal injuries received by him while in the service of George O. Newberry & Co. as an engineer at a certain building in the city of Chicago.

<p>1. Bankruptcy—Rights of Lien Creditors—Sale of Property as an Entirety.</p> <p>The principal asset of a bankrupt corporation was its manufacturing plant, consisting of a building on ground leased for a term of years and the machinery and appliances therein used by the bankrupt in carrying on its business, upon which there were various liens. Certain creditors, having valid mechanics’ liens for the price of materials used in the construction of the building, which under the statute bound the building and the leasehold interest of the bankrupt in the land, objected to the granting of an order authorizing the trustee to sell the property as an entirety free from liens, upon the ground that all lien creditors did not stand upon the same basis, and that, in case of such sale, it would be impossible to tell how much of the .fund each represented, or against what portion it could be enforced. The order was made, but “without prejudice to the right of lien creditors to claim from the fund derived from the sale the amount of their respective liens.” iHeZdi, that the objection made and such proviso in the order fully protected the lien creditors in the right to assert their preferences against the fund, without the necessity of excepting to the return of sale, and that it was the duty of the referee to recognize and enforce such right, taking evidence, if necessary, to determine as nearly as possible what portion of the proceeds of the sale represented the property covered by their liens.</p>

<p>L Navigable Waters—Obstructions—Negligence of City.</p> <p>A city, although charged by statute with the duty of keeping the channels of navigable streams within its limits free from obstructions, cannot be held liable for an injury caused by a sunken wreck, where the owner had in due time undertaken its removal through the agency of a reputable and experienced wrecking company, which was proceeding with apparent diligence and good faith and by customary methods.</p> <p>8. Same—Jurisdiction Assumed by United States.</p> <p>Where the war department of the United States has taken charge of the removal of a sunken wreck in a navigable stream under authority of an act of congress, its jurisdiction in the matter is exclusive, and a city cannot be held negligent in failing to take action for its removal.</p> <p>8. Same—Statutory Liability—City of Philadelphia.</p> <p>Act Pa. April 14, 1859 (P. L. 643), which places on the warden of the port of Philadelphia, who is a state officer, the duty of removing any vessel “sinking in the channel way of the tide waters of the river Delaware or the river Schuylkill within the limits of the port of • Philadelphia,” modified the general provisions of section 28 of the consolidation act of February 2, 1854 (P. L. 37), which imposed upon the city of Philadelphia the duty of keeping the navigable waters within the city open and free from obstructions, so far as related to sunken vessels of the character described.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern. District of New York.</p> <p>This cause comes here upon appeal from a decree of the circuit court, Southern district of New York (113 Fed. 21), sustaining a demurrer to the bill, and dismissing same, with costs.</p>

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

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

<p>1 Patents—Infringement—Individual Liability of Officers of Corporations.</p> <p>Officers of a corporation are not liable in equity for infringement of a patent by the corporation where they are not charged with having participated in the infringement otherwise than as officers of the corporation.</p> <p>2. Same—Determining Validity—Matters of Common Knowledge.</p> <p>In determining the novelty of a patented device, the court will take judicial notice of matters of common knowledge relating to the state of the prior art.</p> <p>8. Same—Validity—Invention</p> <p>Patents are valid only when granted for a mechanically novel structure which involves invention, and not merely for an old thing in a better shape or of better material, or having its utility due to mechanical skill in adopting what was old.</p> <p>4. Same—Patentable Novelty—Ventilating Barrels.</p> <p>The East patent, No. 429,021, for a ventilating barrel made of a sheet of veneer provided with parallel slits arranged lengthwise the barrel, and terminating at a distance from the ends, leaving the edges of the veneer sheet integral, is void for lack of patentable novelty in view of the prior art which showed both barrels made of veneer sheets and bilged, and barrels-and baskets having yentilating holes and slits in the sides. Claims. 1 and 3 also construed, and held not infringed, even if conceded validity.</p>

In Equity. This is a suit in equity, commenced and prosecuted by the Alaska Packers’ Association, a corporation, of the state of… Held: with a mechanism by which the slides are withdrawn as the can enters the cap, substantially as herein described. “(10) The vertically moving plunger by which the can is raised to receive the cap, and the guide into which the upper end of the can enters the transversely moving cap-holding slides, in combination with the second plunger…

<p>1. Patents—Infringement—Cash Carriers.</p> <p>Tbe Osgood patent, No. 357,851, for a store-service apparatus, discloses a patentable invéntion which was not anticipated, and is valid. Also held infringed.</p>

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

<p>On Motion by Defendant to Quash the Service of Summons.</p>

On Petition of William Simpson for a Writ of Habeas Corpus. The defendants were indicted for a violation of section 5359 of the Revised Statutes of the United States while seamen on the American schooner Helen M. Atwood, and while that vessel was lying at anchor in the Kennebec river, near the city of Bath, in the district of Maine. The indictment contained three counts, each alleging an endeavor upon the part of the-defendants to create a revolt.

<p>1. Removal of Causes—Prosecution of Internal Revenue Officer—Acts Done Under Color of Office.</p> <p>A criminal prosecution for an assault committed by defendant in repelling an attack made upon him while acting as a posseman under appointment by a deputy United States marshal, and while assisting in an effort to find and arrest a person charged with a violation of the revenue laws, is removable into the federal court, under Rev. St. § 643 [U. S. Comp. St. 1901, p. 521], the defendant having been at least acting “under color of” office, or in the exercise of a “right or authority claimed” under a revenue law, within the meaning of said section; and it is immaterial, for purposes of removal, what motive actuated his assailant or the officer in defending himself.</p>

<p>At Uaw. Action on life insurance policy. On demurrer to answer.</p>

<p>In Equity.</p> <p>This is an application for an order vacating an order of Mr. Justice Wallace granted July 1, 1902, which order granted leave to file the bill of complaint herein, and also striking such bill of complaint from the files of the court. On the 1st day of July, 1902, Mr. Justice Wallace made an order granting leave to the complainants herein to file their bill of complaint, and pursuant to such order the complainants filed their bill, and on the 8th day of September following filed their amended bill of complaint</p>

<p>In Bankruptcy. On petition for discharge, and objections thereto.</p>

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

This is an appeal from a decree rendered by District Judge Clark settling the order in which the assets of an insolvent building loan association should be distributed among the members. The Cumberland Building Loan Association is a corporation organized in 1892 under the general law of Tennessee providing for the organization of building and loan associations.

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The defendant in error brought action against the city of Chicago for damage to his property occasioned by the construction of a viaduct in Halsted street, immediately adjacent, to a portion of his premises. The block which contains the premises in question is bounded on the north by Thirty-Ninth street, on the east by Emerald avenue, on the south by Fortieth street, and on the west by South Halsted street. There is an alley running north and south through the center of the bloqk. The block comprises 43 lots, numbered consecutively from 1 to 43, commencing at the corner of Thirty-Ninth street and Emerald avenue, except that lot 43 is situated at the southwest corner of the block, and Is bounded on the north by a 16-foot alley running east and west from Halsted street to the north and south alley. The lot is 44 feet in width on the north and south alley, and runs to a point on Halsted street. Le Moyne was the owner of lots 1 to 8, both inclusive, and of lots 14 to 22, both inclusive, all fronting on Emerald avenue; of lots 38 and 39, being the fourth and fifth lots south from the southeast corner of Halsted street and Thirty-Ninth street; and of lot 43, above described. Fortieth street had for years been occupied with 17 railway tracks of the Stockyards & Transit Company, which owned or occupied all the property on the west side of Halsted street from Thirty-Ninth street on the north to Forty-Seventh street on the south. Upon Halsted street was constructed and operated a street ear line as far south as Fortieth street, and there was also a street car line on South Halsted street extending from the south side of Fortieth street, the street railway not crossing Fortieth street on account of the numerous railway tracks thereon, so that passengers traveling north and south over Fortieth street were obliged to do so on foot. The city caused to be constructed the viaduct in question for the purpose of uniting the two street railways, and to give them an overhead crossing, to avoid the dangerous grade crossing on Fortieth street. The viaduct required an elevation of the grade of Halsted street. This began a little north of Thirty-Ninth street, rising to the south. In front of lots 38 and 39 the elevation was 5.69 feet, and at lot 43, 18.29 feet, above the established grade. The viaduct was constructed under contract with the city, and under an order of the city passed January 6th, which was as follows:</p> <p>“Whereas, by order of the city council, passed October 14, 1895, the department of public works was directed to notify the Chicago City Railway Company to run its cars on Halsted street, across the railroad tracks at Fortieth street, in order not to compel passengers to take transfers at that point and walk a block across the tracks; and by resolution of the city council of December 9, 1895, a committee was appointed to confer with the Chicago City Railway Company, in regard to the inadequacy of service in that portion of the city; and by order of the city council, passed December 23, 1895, the commissioner of public works was directed to compel the Chicago City Railway Company to run their cars on Halsted street, from O’Neil street to 69th street, without change of cars; and whereas, by order of the city council, passed September 22, 1890, the mayor and commissioner of public works were directed to confer with the Union Stock Yard and Transit Company to the end that some mutual agreement might be made for the construction of a viaduct over the stock yards tracks across Halsted street, between 39th and 40th streets; and in the report regarding the elevation of the tracks of the Union Stock Yard and Transit Company, submitted to the mayor by the consulting engineer of the city, under date of May 29, 1895, it is recommended that the elevation of such tracks commence east of Halsted street, and that a viaduct be constructed over the seventeen (17) tracks of that company, which pass out of the stock yards and occupy a length of some 350 feet in Halsted street, in order to obviate the great danger and delay at this grade crossing, which will be aggravated through the introduction of the electric cars of the Chicago City Railway Company on Halsted street, across these numerous railroad tracks:</p> <p>“Ordered, that the mayor and commissioner of public works be, and they are hereby, directed to cause plans to be forthwith prepared for a viaduct, with suitable approaches, on Halsted street, over the tracks of the Union Stock Yard and Transit Company south of 39th street, and to let the necessary contracts for the construction of the same, upon obtaining from the Union Stock Yard and Transit Company and the Chicago City Railway Company, or either or both of said companies, an agreement to provide all moneys required to meet such contracts.”</p> <p>At that time lots 1 to 8, both inclusive, and lots 38 and 39, were occupied by one Donahue for the purpose of a coal yard, with its business frontage on Halsted street, under lease dated 1895, and expiring in 1906; and lots 14 to 22, both inclusive, and lot 43, were occupied by one Flannagan in a slaughtering and packing business, with an entrance on Halsted street and none upon Emerald avenue, under lease dated 1892, and expiring in 1902. The north and south alley was either not known as such to the public, or was used in connection with and as part of the property. It had not in fact been open to the general use of the public, but had been built upon by the tenants of the property in question and of the other lots in the block.</p> <p>The trial resulted in a verdict for the plaintiff below, and upon writ of error the city of Chicago brings the cause here for review. There are 73 assignments of errors in the record, which may be thus classified: 3 with regard to the refusal of the court to direct a verdict for the city; 35 with, regard to the admission or exclusion of evidence; 23 with regard to the refusal of instructions requested by the city; .6 with regard to the charge of the court; and 4 with regard to the refusal to award a new trial for excessive damages, that the verdict was not sustained by the evidence, and for error in entering judgment upon the verdict. So far as deemed essential, these assignments are stated in the opinion.</p>

This action was brought to recover upon a certain certificate of insurance held by Henry Wellenvoss, husband of the plaintiff, Elizabeth… Held: “Upon the record we are brought to the conclusion that the said convention of representatives of German lodges held in Indianapolis, Ind., June 12 and 13, 1893, was convened in a spirit of rebellion to the Supreme Lodge and its duly constituted officers, and that such spirit inspired its proceedings; that it was made a permanent…

<p>Appeal from the Circuit Court of the United. States for the District of Indiana.</p> <p>The Wabash Railroad Company, the appellee, acquired the right to construct a railway from New Haven to Butler, Ind. The line crosses a railway in possession of and operated by the Baltimore & Ohio Railroad Company, one of the appellants, at a certain point in-De Kalb county. Being unable to agree with respect to the point and manner of crossing and the damages, on August 28, 1901, the Wabash Company filed its “Instrument of Appropriation,” under the statutes of Indiana, for a grade crossing, making the two companies, appellants here, parties thereto. Pending the proceedings an agreement was reached between the parties, to the effect that the judge should appoint three commissioners to ascertain and report whether an overgrade crossing at the point in question was reasonable and practicable, and whether a crossing at grade should be established, and to assess the damages upon the theory of an interlocking plant being put in, used, and maintained by the Wabash Company under plans and specifications to be submitted to and approved by the auditor of the state. Commissioners were appointed by the court, who reported that an overgrade crossing was impracticable, and reported in favor of the construction of a grade crossing, assessing the damages at $12,000. Upon that report, on the 19th of October, 1901, the court decreed the Wabash Company “to have a right to and to be possessed of a right to such grade crossing, and to the rights and privileges appropriated in said instrument of appropriation at such place.” The damages assessed were paid into court. On October 30th plans and specificátions for an interlocking system and plant at such crossing were approved by the auditor of the state, of which the appellants were duly notified. The Wabash Company was about to put an interlocking plant in place, but was notified on the 10th of December, 1901, by the Baltimore & Ohio Railroad Company, that it would not permit a grade crossing. At that time, there being only two tracks, 8 feet apart, the latter company changed the grade of one of the tracks so as to give it a super-elevation of 4 inches over the grade of the other track, moved the south track a distance of 20 feet, and between the two tracks constructed a third track, and placed thereupon engines and cars at that crossing, detaching the middle track from each of the other tracks; thus obstructing the making of the grade crossing. Both companies, appellants here, appealed from the decree of appropriation to the appellate court of the state of Indiana, which appeal is still pending. On the 14th of .December, 1901, the Wabash Company, which is a corporation of the state of Indiana, filed its bill in the circuit court of the United States for the district of Indiana, seeking to enjoin the Baltimore & Ohio Railroad Company, a corporation of the state of Maryland, from resisting the making of the grade crossing, and requiring it to remove the obstruction, to rearrange the level of the tracks, and restore them to the condition they were in at the tíme of the decree. Upon the 18th of December the Baltimore & Ohio & Chicago Railroad Company, a corporation of the state of Indiana, presented its petition seeking to be made a party defendant; setting forth that it was the owner of the railway, and that the Baltimore & Ohio Railroad Company is the owner of a part of its capital stock. But the court refused to allow the petition to be filed, to which ruling it excepted. And on that day, upon bill and answer, the court enjoined the Baltimore & Ohio Railroad Company, substantially as prayed for in the bill, ■and thereupon the decree or order allowing the injunction is brought by appeal to this court for review upon a joint and several appeal by both companies appellant.</p>

<p>1. Fraternal Insurance—Action on Certificate—Pleading,</p> <p>An allegation in a petition on a benefit certificate in a fraternal order that the insured “at all times from and after his admission to membership to said defendant, until up to the time of his death, promptly and punctually paid all assessments, dues, charges, and demands levied, charged, and demanded of him by said defendant,” is sufficient, on demurrer, as an allegation that such payments were made to the proper officer of defendant.</p> <p>8. Appeal—Review—Error not Presumed.</p> <p>On an assignment of ei'ror for admitting the answer of a witness claimed to have been incompetent, where the answer is susceptible of two constructions, one of which renders it competent, it will be given such construction in support of the ruling, as error must affirmatively appear.</p> <p>8. Fraternal Insurance—Rules Governing Contracts.</p> <p>A fraternal order or association has the power and the right to make and enforce rules in respect to the discipline and social relations of its members, and to prescribe their conduct toward the association and each other; but when it enters into contractual relations with them, as by the issuance of benefit or insurance certificates, it assumes obligations which are subject to the rules and principles which govern such contracts in general, and which are enforceable in the courts.</p> <p>4. Same—Method of Paying Assessments—Estoppel.</p> <p>A by-law of a fraternal insurance order in relation to the payment by members of assessments on their benefit certificates, providing that “every member of the order shall pay to the collector of his council,” is not to be so rigidly construed as in all cases to preclude payment through others; and where payments were made by certain members for more than two years to one authorized by the head of the order to receive the same and forward them to the collector, and such payments were received without objection and paid into the general treasury by the collector of the subordinate council, the association must be presumed to have known of and ratified such method of collection, and it could not lawfully suspend-a member’s insurance because of a delay by its agent in forwarding an assessment which was paid to him by such member in accordance with the custom and within the required time.</p> <p>6. Same—Wrongful Suspension of Mem:ber—Waiver of Rights.</p> <p>Where a member -of a fraternal order was wrongfully suspended, and thereafter received no notice of assessments due on his benefit certificate, his. rights were not prejudiced by the failure to tender such assessments, nor waived by his making application for reinstatement.</p> <p>¶ 5. See Insurance, vol. 28, Cent. Dig. § 1921.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p> <p>The China & Japan Trading Company filed suit against O. G. Davis & Co. alleging that Davis & Co. had sold to it 500 bales of cotton at a stated price, and that Davis & Co. refused to deliver the cotton, to plaintiff’s damage -$6,000. Davis & Co. answered that the contract was never completed. The China & Japan Trading Company was a corporation located in New York and engaged in exporting cotton to Japan and China. O. G. Davis and J. A. Smith, composing the firm of C. G. Davis & Oo., were cotton buyers in Pitts-burg, Tex. It appears that the parties had been dealing together during the cotton season of 1898, and on July 11, 1899, the China & Japan Trading -Company addressed two letters to Davis & Co., explaining the conditions on which they would buy cotton for export. ' The opening sentence of one letter is as follows: “We shall expect you to make your engagement of freight room simultaneously with your sales to us, covering through shipment and transshipment to destination.” “Shipment must be made within the time contracted for; neither earlier nor later.” On August 18th Davis & Co. sent this-telegram: “We offer f. o. b. and freight 500 bales middling at 6 1-8. -Oct.-Nov. or Nov.-Dee. shipment.” The trading company replied as follows: “The offer is accepted. 500 bales middling at 6 1-8. Cost and freight. Oct.Nov. shipment. Steamer space secured to Japan.” On the same day the trading company wrote, confirming the purchase, and in the letter stated: “Our acceptance was conditioned upon your fixed freight engagement with the steamer space secured to Japan, which you will understand in the light’ of last year’s experience. We cannot take the risk of having cotton held up by the railroads, and shipped to the Pacific coast at their convenience.” Before the last letter was received by Davis, he had written on August 19th as follows: “Inclosed please find copy of telegrams exchanged resulting in, sale to you of 500 bales, for which sales note herewith. We are now at work trying to engage the room for same, which we shall no doubt succeed in ■doing within the next few days. Last year we had some difficulty in securing the requisite room to cover our shipments, and in this connection we would ask if you could not be of some assistance to us should we encounter the same difficulty this season. You are large shippers over the Pacific S. S. lines, and it strikes us that you could possibly obtain room where we cannot There will be several vessels out of Galveston to Japan via Suez. Will it be agreeable to you to ship any of your cotton by this way?” On August 22d the trading company replied as follows: “We are surprised to learn that you made this sale to us without having freight engagement in hand, and that in the very trying position of the freight market now you are short room. With every desire to help you, we find ourselves quite powerless. * * * Noting your suggestion to ship via Suez, we remind you that this route is more expensive to us in marine insurance and interest, and we must charge you 1 per cent, allowance if you make that shipment. We will accept from you on this contract October-November shipment by way of Galveston or New Orleans on a steamer direct to Japan, not by way of New York or European ports, if you will make us this allowance. Let us know what arrangement you make.” To this Davis & Co. replied August 25th: “In reply to your valued favor of the 22d will say we have the promise of room for 500 bales sold you, and believe we will get it. Our inquiry as to Gulf shipment was made for our information. The freight via this route is against us by 50 cts. a bale, and to allow you one per cent, additional would be quite a hardship on us. If, however, we should be compelled to ship that way, will stand the difference rather than fail on our contract.” The trading company replied on August 28th, expressing surprise that freight by the Gulf should be higher, and then stated: “We are not pleased with your carelessness in the matter of freight on this lot of cotton. You had our letter of general instructions before you, in which it was specifically stated that freight engagements must be made at the time of selling us the cotton. With this warning, and the experiences of last year fresh in mind, we are at a loss to see why you should have run this risk.” G. G. Davis testified that he wrote the following letter to plaintiff on the 2d of September, 1899: “We note contents of your valued favor of the 28th of August. In view of the fact that you consider our sale to you based upon condition that freight has been engaged for same, and as you express yourself as not pleased that this condition has not been complied with in this instance, we hereby cancel the same. We do this rather than have any dissatisfaction about the matter. In future we will confine our offers to you strictly in accordance with .the terms of the contract, as we see that you are disposed to exact the terms thereof very rigidly. Such letter was addressed to plaintiff, and stamped, and placed in. the post office at Pittsburg, Texas, on September 2, 1899, in an envelope with our address, and a request to return printed on it. The letter was not returned to us.” Howard Ayres, secretary of the trading company, testified that plaintiff did not receive the letter of September 2d. He further testified: “Our purchase of August 18, 1899, was made upon the conditions stated in our letter of July 11, 1899, and the condition as to the engagement of steamer space was also referred to in our telegram of August 18, 1899, and in the letter of same date.” No inquiry was made by the China & Japan Trading Company about the 500 bales of cotton in question from August 28th to November 13th, although in the meantime several communications passed between them as to other shipments. On November 13th the trading company wrote Davis & Go. as follows: “We are constrained to ask you when you are likely to ship the 500 bales of middling sold us August 18th for October-November delivery?” Davis replied on November 20th, and referred them to his letter of September 2d, in which he had canceled the contract. The trading company replied that they had not received the letter of September 2d, and would not have considered the contract canceled if they had received it; stating: “It took two to make the contract, and it will take two to cancel it. We trust you will make prompt shipment of this 500 bales middling due us under our contract of August 18th, and doubtless you will be able to secure freight room. Indeed, we are continually receiving offers of freight room by all the Pacific routes, as well as by way of Suez, and there seems to be no difficulty in making shipment.” When Davis had asked them to assist him in getting shipping space on August 19th, they replied on August 22d that they could not help him.</p>

<p>1. Federal Courts—Following State Decisions—Construction op State Constitution.</p> <p>Where the decision of a cause depends upon the construction placed upon a provision of a state constitution, the federal courts follow the decisions of the highest court of the state thereon, and an appellate court will reverse'a judgment below based on such decisions, where, pending the appeal, they have been overruled, when no question of contract rights is involved.</p> <p>Y 1. State laws as rules of decision in federal courts, see notes to Griffin v. Overman Wheel Co., 9 G. C. A. 548; Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>See Courts, vol. 13, Cent. Dig. § 956.</p>

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

This is a controversy between rival manufacturers of sectional bookcases.

<p>1. Patents — Infringement—Trial—Supplemental Pleadings—Res Judicata.</p> <p>Where, in a suit for infringement of a patent, against the seller of the patented articles, the manufacturer was permitted to intervene for the purpose of defending the action on the ground that defendant had ceased to sell its manufactured goods, and the bond given by him to prevent a preliminary injunction had probably become ineffective, and a decision was rendered holding that the original defendant was estopped to question the validity of the patent as against the plaintiff, the estoppel operating between defendant and the complainant controls the litigation, so that the manufacturer would not be entitled to file a supplemental answer setting up a decision of the circuit court of appeals holding the patent void as res judicata.</p> <p>¶1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p>

<p>On Motion for Leave to Amend Complaint.</p>

<p>In Equity. Creditors’ suit for winding up the affairs of an insolvent corporation.</p>

<p>1. Maritime Liens—Repairs and Supplies—American Rule.</p> <p>Maritime liens for supplies and repairs are of ancient origin, and were recognized both in England and on the continent to bind both foreign and domestic vessels. Both have generally been bound upon the continent, and also by the admiralty law of England, but such law was denied enforcement by writs of prohibition from the English common-law courts in the case of foreign and domestic vessels alike. In the American, admiralty law there has been a general tendency to hold a vessel liable for her repairs and supplies, unless the owner, to the knowledge of the furnisher, has declined to allow the lien. This general and imperfectly developed rule is subject to exceptions, presumptions, and counter presumptions. Where the owner, to the knowledge of the furnisher at the time of supply, refuses to allow the lien to arise, it does not exist or is deemed to be waived.</p> <p>2. Same—Construction of Charter—Notice of Limitation of Master’s Authority.</p> <p>A charter party providing that the charterer shall provide and pay for all the coal used by the vessel, and that the master, although appointed by the owner, shall be under the orders and direction of the charterer as regards employment, agency, or other arrangements, is not merely a contract between the parties which binds the charterer to reimburse the owner for coal paid for by the latter, but is also a limitation on the authority of the master to bind the owner or the vessel for such supplies; and no lien upon the vessel exists in favor of a libelant who supplied coal on the order of the master in a foreign port, but which was not a port of distress, and was merely across the river from the home port, where the owner resided, and no actual necessity was shown for pledging the credit of the vessel, and where libelant knew the vessel to be under charter, and was put upon inquiry as to the terms of the charter.</p> <p>¶ 1. Maritime liens for supplies and services, see note to The George Dumois, 15 O. C. A. 679.</p>

<p>1. Federal Courts—Proceedings for Enforcement of Judgment—Statute-Giving Benefit of State Remedies.</p> <p>Rev. St. § 916 [U. S. Comp. St. 1901, p. 684], which provides that a party recovering a judgment in any common-law cause in a federal court “símil be entitled to similar remedies on the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state,” etc., does not embrace remedies in equity by independent suit which may have been given by the statutes of a state, but is limited by the phrase “in like causes” to remedies provided in actions at law wherein judgments were recovered.</p> <p>8. Same—Creditors’ Suit—Enforcement of Legal Demands in Equity.</p> <p>In a creditors’ suit in a federal court by a judgment creditor against the judgment defendant and another, alleged to be his debtor on a mere money demand, the question of the latter’s indebtedness, if denied by him, cannot be tried, even though such procedure is authorized by a state statute, since that would deprive him of his constitutional right to a jury trial; but the complainant may, by the joinder of such defendant, obtain a discovery from him as to his indebtedness and the right to an equitable lien thereon, to become effective and to be enforced when such indebtedness shall have been established in an action at law, and also the appointment of a receiver, with authority to bring such an action.</p> <p>8. Equity—Bill for Discovery—Sufficiency.</p> <p>A defendant' in a creditors’ suit, from whom discovery is prayed in respect to his indebtedness to the judgment debtor, cannot object to the making of such discovery because the bill waives answer under oath.</p> <p>4. Same—Multifariousness.</p> <p>A creditors’ bill in a federal court, against judgment debtors and another who is alleged to be indebted to them on a legal.demand, is multifarious, as against the latter, where it prays, not only for a discovery and for a decree adjudging a claim made by him that his indebtedness was to another than the judgment debtors to be fraudulent, but also for a personal judgment against him, as uniting equitable and' legal demands, and because the latter is a demand over which the court is without jurisdiction in equity.</p>

<p>1. Vendor and Purchaser—Failure oe Title—Limited Warranty under Louisiana Statute.</p> <p>Under Code La. art. 2505, which provides that a vendor of lands, even in case of stipulation of no warranty, is liable to a restitution of the price in case of the purchaser’s eviction, “unless the buyer was aware, at the time of the sale, of the danger of eviction, and purchased at his peril and risk,” as construed by the courts of the state, a purchaser of a large quantity of land, who has full knowledge of defects in the title to a portion of it, and accepts a deed to such portion with a restricted warranty, must be held to have “purchased at his peril and risk” as regards that portion, and cannot recover from the vendor for his eviction therefrom.</p> <p>2. Same—Grounds eor Recovery.</p> <p>A purchaser of land cannot recover the purchase money paid in an action at law against his vendor, on the theory of an eviction merely, when he subsequently secured the issuance of a patent for the land from the United States which inured to his benefit.</p> <p>8. Same.</p> <p>The mere fact that a commissioner of the general land office had the word “Canceled” written across the record of a patent, 55 years after its issuance, does not constitute an eviction of the person holding title and possession under such patent, so as to entitle him to recover from his vendor for a failure of title.</p>

<p>In Equity. On application for an injunction and motion to dismiss for want of jurisdiction.</p>

<p>1. Judgment—Chinese Alien—Right -To Remain in United States—Proof of Adjudication.</p> <p>In a proceeding for the deportation of a Chinese person, a certificate, signed by a United States commissioner, that complaint was presented before him charging that the defendant was unlawfully within the United States, and that the defendant was brought before him, and that upon full hearing it was adjudged by him that the defendant had a lawful, right to be and remain in the United States, and he was accordingly discharged, is inadmissible in proof of a prior adjudication of defendant’s right to remain in this country; it not being a certified copy of such adjudication, but a mere -recital that such judgment had been rendered.</p> <p>¶ 1. Citizenship of Chinese, see notes to Gee Fook Sing v. U. S., 1 C. C. A. 212, and Lee Sing Far v. U. S., 35 C. C. A. 332.</p>

<p>1. Jurisdiction of Federal Courts—Suit against State—Enjoining Criminal Prosecutions under State Statute.</p> <p>A suit against the attorney general and assistant attorney general of a state to enjoin them from instituting criminal prosecutions in the name of the state under a state statute, by which they are charged with no special duty, and to which they bear no different relation than to any other penal statute,- is a suit against the state, within the meaning of the eleventh constitutional amendment, of which a federal court is without jurisdiction.</p> <p>¶ 1. Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.-</p>

<p>1. Bankruptcy—Specifications in Opposition to Discharge—Objections to-Sufficiency.</p> <p>It is the settled practice in the Northern district of New York to require all objections to the sufficiency of specifications of objection to the discharge of a bankrupt to be raised before the judge, on motion, within a specified time.</p> <p>2. Same—Trial of Issues on Application for Discharge—Objections to-Evidence.</p> <p>Objection that evidence offered on the trial of specifications of objection to a bankrupt’s discharge is not within the issues must be made before or during the trial before the referee, or it is waived.</p>

<p>1. Trust—Suit to Establish—Sufficiency of Bill.</p> <p>Allegations in a bill that in 1759 a number of persons of the Jewish faith in Newport, being desirous of establishing and owning a permanent place whereon they could erect a synagogue and conduct their worship according to the Jewish rites, purchased a tract of land, which was conveyed to three persons named, by a deed which contains no declaration of trust, and that a synagogue was erected thereon soon afterward, which has since been used as a place of public worship, do not support a further allegation that the grantees in the deed became joint tenants of the premises as trustees “for the Jews of Newport”; nor do they show in the complainants, who sue as individuals, conceding them to be “Jews of Newport,” any interest in the property, legal or equitable.</p> <p>? Equity—Grounds for Belief—Protecting Possession Obtained by Force.</p> <p>Complainants cannot invoke the aid of a court of equity to maintain them in the possession of property which they took by force from defendants, who are conceded to have been in possession under a deed purporting to convey to them the legal title, by enjoining defendants from prosecuting an action at law for its recovery.</p>

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

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

<p>1. State Boundaries—Change of River Channel by Avulsion.</p> <p>The sudden cutting of a new channel by the Mississippi river in 1876,. called “Centennial Cut-Off,” across Devil’s Elbow Bend, by which several thousand acres of land within the bend, and formerly on the eastern-bank of the river, is left on the western bank, in consequence of the-river’s abandonment of the old channel, did not change the boundary between the states of Tennessee and Arkansas, which remained where-it was originally fixed,—in the middle of the abandoned channel.</p> <p>'2. Deeds—Recitals as Evidence.</p> <p>Recitals In a deed of recent origin that the makers are the heirs of a former owner, without circumstances in support, are not evidence against a stranger.</p> <p>8. Ejectment—Title to Support Action—Evidence.</p> <p>Plaintiff in ejectment proved title in one John T., and introduced what purported to be a copy of his will, devising the land to his son W. W. T., and a quitclaim deed recently executed to plaintiff from persons who recited therein that they were all the heirs of W. W. T., deceased. There was no other evidence of his death intestate, that the grantors were his heirs, or that they were ever in possession of the land. Plaintiff also introduced a decree ’of a chancery court devesting the title of the parties to the suit to the land in controversy, described as belonging to the estate of John T., deceased, and vesting it in a partnership, through which plaintiff claimed by mesne conveyances; but the decree did not show, nor was there any other evidence to show, who were parties to the suit.</p> <p>IHeld, that neither line of proof showed title in plaintiff which would support the action.</p> <p>-4. Adverse Possession—Time op Commencement—Deed as Evidence.</p> <p>A deed may constitute part of the evidence of possession, as showing its extent or characterizing it; but it raises no presumption that an actual possession, such as will start the statute of limitations to running against an adverse claimant, which the grantee is shown to have had at a later date, commenced at the date of its delivery.</p> <p>•6. Ejectment—Title to Support Action.</p> <p>Under the statute of Tennessee (Shannon's Code, §§ 5000, 5001), ejectment cannot be maintained on possessory rights only, although the defendant is a mere trespasser, but the plaintiff must show a perfect legal title, either by deraignment from the state, or by evidence of actual occupation under deeds purporting to convey the title for the full term of seven years.</p> <p>■6. Submergence op Riparian Lands—Effect op Reliction.</p> <p>Land bounded by a navigable river, extending to ordinary low-wator mark, which is lost by erosion or submergence, is regained to the original owner of the fee when by reliction or accretion the water disappears and the land emerges; and although the erosion or submergence may have extended across the entire tract, and upon the land of an adjoining owner, such owner cannot claim the land upon its reappearance as an accretion to his own; nor has he any claim to accretions beyond the original shore boundary of the submerged tract over the former bed of the river, which inure to the owner of such tract.</p> <p>7. Adverse Possession—Land Claimed as Accretion.</p> <p>A deed conveyed a tract of land by metes and bounds, and also purported to carry the right to accretions consisting of new land formed by the reliction of the Mississippi river. The legal title to such new land was, however, in another, who owned the same before its submergence. '¡Held1, that the deed constituted, at most, only color of title to such new land, and that possession and occupancy of the principal tract by the grantor or grantee did not constitute actual possession of the new land, which would operate to set the statute of limitations to running as against the legal owner.</p> <p>8. Accretions—Ejectment to Recover—Title to Support.</p> <p>Accretions are apportionable among riparian proprietors according to the lateral lines of the firm land owned by them, and a legal title to such land is essential to support an action of ejectment to recover accretions thereto.</p> <p>-9. Ejectment—Title to Support—Grant After Commencement op Action.</p> <p>A grant of land by the state of Tennessee relates back to the date of entry, and is sufficient to support an action of ejectment for the land granted, although such action was commenced before the date of the grant, where the entry was prior to the action.</p> <p>10. Boundaries on Navigable Stream—Effect of Sudden Change of Channel.</p> <p>Where, by the law of the state, as in Tennessee, lands bounded by a navigable river extend only to ordinary low-water mark, the title to the bed of the river remaining in the state in trust for public uses, land formed gradually by accretion below low-water mark becomes the property of the adjoining owner,—the low-water line remaining his boundary; but, where the stream suddenly abandons its old bed and seeks a new channel, such change works no change of boundary in the lands of adjoining owners, but the title to the land in the abandoned channel remains in the state.</p> <p>11. Navigable River—Land Formed by Sudden "Change of Channel— Grant by State.</p> <p>Acts Tenn. 1847, c. 20, providing for the granting by the state of “vacant lands,” does not apply to the bed of the Mississippi river, which many years after the passage of the act became dry land by a sudden change in the course of the river, by cutting a new channel and abandoning the old one,—such land not being vacant land, within the meaning and purpose of the act; and a grant thereof by the land department of the state is unauthorized and void. While the title to such land remains in the state, as before the reliction, it is held for public purposes, and cannot be granted to private persons unless the legislature shall expressly so authorize.</p>

<p>1. Equity—Sufficiency of Evidence to Support Bill.</p> <p>Where answer under oath was not waived, and the answers so made were responsive to the bill, and were supported by the testimony of the defendants, who were called as witnesses by complainant, the force of such testimony is not overthrown by the fact that it is improbable or open to suspicion under the peculiar facts and circumstances of the case, and the facts alleged in the bill can only be established by affirmative evidence, either direct or circumstantial.</p> <p>S. Mortgages—Failure to Record—Effect under New Jersey Statute.</p> <p>Under Gen. St. N. J. p. 2106, § 22, which makes every mortgage void against a subsequent bona fide mortgagee for a valuable consideration without notice thereof, unless it is lodged for record at or prior to the time of the lodging for record of the subsequent mortgage, a purchaser of a mortgage having priority of record is entitled to rely on the priority of lien which such record gives, and is not chargeable with notice from the record that a mortgage subsequently recorded was in fact prior in time because it bears a prior date, no presumption arising from the facts so appearing that it was actually delivered on the day of its date.</p> <p>8. Same—Rights of Assignee.</p> <p>The assignee of a mortgage takes all the rights of his assignor, and if, in the hands of the assignor, it was entitled to priority over another mortgage under the statute because of its priority of record, and of the fact that it was taken by the assignor for a full consideration, and without notice that the other mortgage had. in fact been previously executed, it has the same priority in the hands of the assignee, although he may have taken it with knowledge of the facts.</p> <p>4. Same—Right of Subrogation to Lien of Canceled Mortgage—Innocent Assignee of Intervening Mortgage.</p> <p>Complainant made a loan to an owner of property, taking a mortgage therefor. There was a prior mortgage on the property, which he paid off from the proceeds of the loan, but before doing so, and recording his mortgage, several days elapsed, during which a third mortgage had been given by the mortgagor and recorded, which, under the statute, gave it priority over complainant’s. After the first mortgage had been canceled the third mortgage, which was then first of record, was sold to defendant, who bought in good faith and in reliance on the record. Held, that complainant was negligent in not examining the record before -canceling the first mortgage, and that as against defendant he was not entitled to be subrogated to the lien of such mortgage.</p> <p>¶ 4. Subrogation to rights of mortgagee, see note to Rachal v. Smith, 42 C. C. A. 304.</p>

The appellant, complainant below, filed its bill alleging the pirating by the defendant below, appellee here, of its trade-mark, and also of unfair competition in trade, with respect to the placing upon the market and sale of a certain cereal preparation designated “Grape-Nuts.” The bill charges substantially that the complainant was possessed of a certain secret formula for a food product composed of wheat and barley, of distinctive appearance in texture and color, of a…

Appeals from the District Court of the United States for the Eastern District of Michigan. The barge Fontana came into collision with the barge Santiago and was sunk almost instantly, the loss being practically total. The Fontana was bound down the St. Clair river in tow of the steamer Kaliyuga. The Santiago was bound up the river in tow of the steamer Appomattox.

This is a suit brought by defendant in error, a letter carrier at the post office of Birmingham, Ala., to recover for alleged extra time which he claims he was employed over-and above eight hours per day under an act of congress entitled “An act to limit the hours that letter carriers in cities should be employed per day,” approved May 24, 1888 [U. S. Comp. St. 1901, p. 2637]. The claim amounts to $253.26. The petition was regularly served.

The plaintiffs in error, as the claimants of certain property levied upon under writ of attachment-sued out by the defendant in error, made affidavits in conformity with the provisions of section 4425 of the Mississippi Oode (1892), for the trial , of right of property. A portion of the property levied upon was claimed by D. W. Miller and H. J. Koper jointly, and a portion-by H. ,T. Koper individually.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Alabama, in Bankruptcy.</p> <p>On July 3, 1901, the petitioner, Henry K. White, was duly adjudged a bankrupt, and on the same day he filed before the referee a petition reciting as follows: “That one J. L. Thompson, who is scheduled as a creditor of your petitioner and whose debt is provable under the bankrupt act against his estate, did, on the 21st day of June, 1901, cause a writ of execution to issue out of the court of probate, Jefferson county, and did cause the same to be placed in the hands of the sheriff of Jefferson county, with instructions to levy same on all the personal property of petitioner, which petitioner has claimed as exempt, which execution was levied on said 2d day of July,” —on which petition the bankrupt prayed that the said J. L. Thompson be required by order of the court to dismiss said execution proceedings, and propound in the bankruptcy court any claim which he may have against the petitioner. On this petition, the referee issued a rule nisi, to which Thompson answered as follows: “That in, to wit, the year 1892, said bankrupt filed his petition in the probate court of Jefferson county, Alabama, praying that letters of administration de bonis non be issued to him out of said court on the estate of Samuel Thompson, deceased, the father of "said J. L. Thompson. That upon the consideration of said petition by the judge of said probate court the same was granted, and the said H. K. White thereupon made the bond required, and letters of admission de bonis non were accordingly issued to him, and he entered upon the administration of said estate. That during the course of said administration, and within a few months after his said appointment, the said H. K. White, as such administrator de bonis non, received and collected in cash a large sum of money, to wit, about $1,800 or $1,900, as the property of said estate of said Samuel Thompson, deceased. That in the year 1900 the said H. K. White was cited to file his account and vouchers as such administrator de bonis non for final settlement of said estate, and thereupon said final settlement was made. That on March 6, 1900, the date of said final settlement, the said probate court rendered a judgment against said H. K. White as such administrator de bonis non and individually in favor of J. L. Thompson, Miller Thompson, and Wm. Leslie, as administrator of the estate of Mary Thompson, deceased, each separately and severally, for the sum of $153.26%, besides judgment for costs, $40.55. That each of said judgments contained a waiver of exemption clause as to personal property, and as against said judgments no exemption of personal property was allowed. That on April 7, 1900, said J. L. Thompson had an execution issued on the judgment in his favor, and placed the same in the hands of the sheriff of Jefferson county, Alabama. That again, on November 11, 1900, another execution was issued on said judgment, and placed in the hands of the said sheriff. That again, on June 21, 1901, another execution was issued on said judgment in favor of said J. D. Thompson, and on said date the same was placed in the hands of A. W. Burgin, sheriff of Jefferson county, Alabama. That on, to wit, July 1, 1901, prior to the adjudication in this cause, the said execution writ was by said sheriff executed by levying on the personal property of said bankrupt complained of in his said petition. S'aid J. L. Thompson avers that the judgment against said bankrupt in his favor, upon which said execution was issued, is not such a debt or judgment as can be affected by the bankruptcy act, but comes within the exception of subdivision 4 of section 17 of said bankruptcy act, approved July 1, 1898 [U. S. Comp. St. 1901, p. 3428], and was rendered more than one year prior to the adjudication herein, and that the lien of said execution is not and cannot be affected by the adjudication of said bankrupt. Wherefore said J. L. Thompson prays your honor that the said petition filed July 3d by said bankrupt be not allowed, and that the same be dismissed cut of this court, and for such other, further, and general relief as the averments and proof herein may warrant; and will ever pray, and,” etc. To this answer the bankrupt, White, filed a lengthy replication, setting forth in detail how it happened that he was in default as an administrator, and certain propositions made by him to Thompson, and the refusal of the same; whereupon the referee, on hearing, enjoined the further proceedings to enforce the judgment in the probate court of Jefferson county, and ordered a dismissal of the same, and directed said Thompson to propound in the bankruptcy court his claim against the bankrupt. Thereupon J. L. Thompson, Miller Thompson, and William Leslie, administrator of Mary Thompson, deceased, each made proof of their claim, as evidenced by the judgment rendered in the probate court of Jefferson county, but distinctly denied that their claims were dischargeable in bankruptcy, and declined to waive any rights arising under such judgments, or to recognize the jurisdiction of the bankrupt court over such claims. Following proof of these claims the trustee, on petition of the bankrupt, designated and set apart certain movable property of the value of $450 and necessary and proper wearing apparel for the bankrupt and his family, and all family portraits or pictures, as property exempt under the laws of Alabama. To this action of the trustee said J. L. Thompson filed exceptions and objections as follows: “(1) That the said bankrupt is not entitled to claim personal property as exempt to him under the constitution and laws of the state of Alabama as against their said judgments, for the reason that said judgments were rendered on the final settlement of said bankrupt as administrator de bonis non of the estate of Samuel Thompson, deceased, as being their respective distributive shares in the estate of Samuel Thompson, deceased, and is not such a debt as against which a claim of exemption to personal property can be interposed and sustained. (2) That the said bankrupt cannot cláim his exemption against their said judgments rendered against him, as said judgments are not based on, nor do they arise by virtue of, any contract made by or with said bankrupt, but were rendered as their distributive shares in the estate of Samuel Thompson, deceased, by the probate court of Jefferson county. (3) That the said decrees or judgments are against said bankrupt as administrator de bonis non of the estate of Samuel Thompson, deceased, and that he had at the time of the rendition of said judgments sufficient assets in his hands with which to pay the same, which he unlawfully withheld or had wasted, and there is no real or personal property of said estate upon which execution can be levied.” On these exceptions and objections the referee disallowed the exemptions, and on review in the bankruptcy court the referee’s action was affirmed. Thereupon the matter was brought before this court by petition for review. Since the case has been here pending, the bankrupt has prosecuted his application for a discharge, and has been awarded the same in the usual form.</p>

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

<p>1. Bill of Exceptions—Federal Practice.</p> <p>Tlie settlement of a bill of exceptions in a federal court is governed by the federal statutes and practice, and not by the statutes or practice of the states.</p> <p>¶ 1. Conformity of practice in federal courts in common-law actions to that of state courts, see notes to O’Connell v. Reed, 5 C. C. A. 594; Insurance Co. v. Hall, 27 C. C. A. 392.</p> <p>See Courts, vol. 13, Cent. Dig. § 937.</p>

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

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

This is a bill to restrain infringement of the first five claims of patent No. 536,734, and also of the only two claims of patent No. 540,796, both being patents issued to Arthur J. Moxham, and assigned to the Johnson Company, a corporation of Pennsylvania, the complainant below and appellant here. Both patents are for improvements in railway switch work, the second being only for an improvement upon the claims of the first.

<p>1. Patents—Invention—Telephone Transmitters.</p> <p>The Berliner patent, No. 463,569, for a telephone transmitter, issued in 1891, on an application filed in 1877, does not disclose the principle of the microphone first described by Prof. Hughes in 1878, nor did it add anything of practical value to the knowledge of the telephonic art. It discloses invention, but mujt be limited, in view of the prior inventions of Bell and Edison, to a transmitter in which the pressure at the point of contact between metallic electrodes in constant contact is varied by the vibration of the diaphragm due to sound waves, and thus produces variations of electrical resistance whereby speech may be transmitted. As so construed it is not infringed, by transmitters which embody the discoveries of the carbon electrode and the microphonic principle.</p>

<p>1. Patents—Construction of Claims—Ore-Roasting Furnace.</p> <p>The Brown patent, No. 471,264, for an ore-roasting furnace, claim 1, which covers a furnace in which the mechanism for operating the rabbles for stirring and advancing the ore is placed in a supplemental chamber for the purpose of protecting it from the action of the heat, dust, and fumes, was not anticipated, nor is it limited, by the Stanley patent, No. 61,577.</p>

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

In Equity. This is a motion in the above-entitled cause for a preliminary injunction restraining the defendant, his agents and servants, from manufacturing and selling certain electrical apparatus (sockets for incandescent lamps) alleged to be an infringement of the Tournier patent (letters patent No. 559,232), particularly claims 1, 2, 3, and 4 thereof,—a structure or invention alleged to be indispensable in the art of electric lighting.

<p>In Equity. Suit for infringement of letters patent No. 453,955 for an elevator controlling mechanism, granted to Norman C. Bassett June 9, 1891. . On final hearing.</p>

<p>1, Patents—Construction of Claims—Amendments in Patent Office.</p> <p>An element or feature added to a claim of a patent by amendment to meet objections of the patent office in order to obtain a patent must be held essential in a suit for infringement.</p> <p>2. Same—Infringement—Game-Boards.</p> <p>The Haskell patent No. 602,179, for a game-board, claims' 1, 3 and 6 construed, and held not infringed.</p> <p>8. Same.</p> <p>The Fuller patent No. 666,742, for a game-board, claims 1 and 2 construed, and held not infringed.</p> <p>,4. Trade-Marks—Descriptive Word—“Carroms.”</p> <p>The word “Carroms” as applied to a game to be played with disks, where the object is not to strike two disks together, but to drive a single one into a pocket, or to the boards on which such game is played, is not so descriptive but that it may be appropriated as a trade-mark. The Haskell registered trade-mark No. 29,775, for the word “Carroms” as applied to game-boards, held valid and infringed.</p> <p>¶ 2. Arbitrary, descriptive or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p>

<p>1. Reference—Accounting in Patent Suit—Production of Correspondence.</p> <p>On an accounting before a master for profits and damages for infringement of a patent, where defendant has produced the contracts of sale of the infringing machines, he may properly be required, under the provisions of equity rule 77, to also produce the correspondence leading up to such contracts, as being applicable to the subject-matter of the reference.</p> <p>¶ 1. Accounting by infringer for profits, see note to Brickill v. Mayor, etc., 50 C. C A. 8.</p>

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

In Bankruptcy. On review of order of referee. The questions submitted for decision arise upon a petition for review filed by the First National Bank of Morgan, Tex., and W. H. Abernathy, challénging an order made by the referee in bankruptcy which required the bank to pay to the trustee in bankruptcy the sum of $3,572.03, with legal interest.

<p>In Equity. On demurrer to bill for want of jurisdiction.</p>

<p>At 'Daw. On motion for new trial.</p>

<p>At Daw. On motion for judgment non obstante veredicto.</p>

<p>1. Amendment of Complaint—Cause of Action Arising after Suit Brought.</p> <p>Under the Code of Procedure of South Carolina, the gomplaint, in an action for a breach of a contract, cannot be amended by alleging a second breach occurring after the action was commenced, and asking damages also for that.</p> <p>'2. Contracts—Right of Action for Breach—Repudiation before Time for Performance.</p> <p>The refusal of one party to an executory contract, containing interdependent obligations to be performed by each party at different times, to recognize or be bound by such contract, authorizes the other party to treat it as terminated, and to bring suit for its breach at once, although the time for performance of some of the conditions by defendant has not arrived.</p> <p>8. Amendment of Complaint—Action for Breach of Contract.</p> <p>The complaint, in an action for breach of a contract, by the failure of defendant to pay an installment due thereunder, there being other obligations not matured, may be amended to ask damages for breach of the entire contract, where the amendment shows the contract to have been, executory, and alleges that prior to the suit defendant had repudiated the same and refused to be bound thereby.</p>

Action in Ejectment. On demurrer for want of jurisdiction. This is the third action in ejectment brought by the plaintiff in this cause "to recover the premises in Hot Springs, Ark., known as the “Government ■Reservation,” including the hot springs and the Army and Navy Hospital of the United States. The demurrers to the complaints in both of the former actions were sustained by the court. In the first case (Muse v. Hotel Oo. [0.

<p>In Bankruptcy.</p>

<p>1. Negligence—Damage from Eire.</p> <p>In an action for damages from fire, caused by the alleged negligence of defendants in installing an electric motor and appliances in plaintiffs’ building, it is necessary for the plaintiffs to develop some theory as to how the fire was caused, and furnish proofs to support the theory.</p> <p>2. Same—Evidence—Question for Jury.</p> <p>In this ease the question of defendants’ negligence was properly submitted to the jury, though plaintiffs’ evidence in support of their theory as to how the fire was caused was weak.</p> <p>8. Evidence—Opinion—Grounds.</p> <p>In stating opinions as to the value of a building destroyed by fire, witnesses should be required to state the grounds on which their estimates are based; otherwise the reliability of the estimates cannot be determined.</p> <p>4. Excessive Verdict—Disposition of Cause.</p> <p>Though a'verdict for excessive damages is usually to be regarded as Indicating partiality or inconsiderateness necessitating a reversal, the court may allow such a verdict to stand, if the excess be remitted, where it is satisfied that the jury acted honestly, and that their error as to damages arose from lack of a full presentation of that issue.</p> <p>¶ 3. See Evidence, vol. 20, Cent. Dig. § 2303.</p> <p>¶ 4. Reduction or increase of amount of recovery on appeal, see note to The Homer, 48 G. C. A. 470.</p>

<p>On Application to File Transcript on Removal after Denial of Application by State Court.</p>

<p>On Application for Removal on the Ground of Eocal Prejudice.</p>

<p>In Bankruptcy. On report of special master.</p>

<p>3. Act op Bankruptcy—Failure to Discharge Lien—Intent.</p> <p>Under Bankr. Act, § 3, cl. 3 [U. S. Comp. St. 1901, p. 3422], providing that acts of bankruptcy by a person shall consist- of his having “(3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings,” the intent of the insolvent is immaterial; and when an insolvent corporation fails to cause a preference by legal proceedings obtained by one creditor to be vacated or discharged by showing that the claim is illegal or unfounded, or by paying the debt, such insolvent commits an act of bankruptcy.</p> <p>¶1. See Bankruptcy, vol. 6, Cent. Dig. § 82.</p>

<p>1 Bankruptcy—Act op Bankruptcy—Procurtno Appointment op Receiver.</p> <p>Obtaining the appointment of a receiver by an insolvent partnership through dissolution proceedings in a state court, though such action was taken for the purpose of preventing the bankruptcy court from obtaining possession of the assets, is not an act of bankruptcy, under Bankr. Act 1898, § 3a, cl. 1 [U. S. Comp. St. 1901, p. 3422],</p>

<p>In Equity. Suit for infringement of copyright.</p>

<p>1. Revenue Law—Stamp Tax—Memorandum of Sale—Sales by Agent.</p> <p>Act March 2, 1901 (31 Stat. 943), provides that every corporation which shall in its own behalf, or as agent, conduct what isa commonly known as a “bucket shop,” shall pay a stamp tax of 2 cents on each $100 of the face value, or fraction thereof, of all stocks, bonds, or other securities covered, etc. Held, that where defendant commission company contracted with S. that the latter should open a separate office, and send trades obtained to defendant, and for his services defendant agreed to pay one-fourth of the commission charged to the customer, and S. received an order for stocks, which he transmitted to defendant, and which was filled by the latter, whereupon S. executed a memorandum of the sale, which he duly stamped, S. acted simply as the agent of defendant, and hence the latter was not guilty of a violation of the statute by reason of its failure to execute and stamp a memorandum of sale to S.</p>

<p>In Admiralty. On exceptions to report of Commissioner.</p>

<p>1. Salvage—Raising Sunken Vessel—Services Rendered by Owner of Vessel in Fault.</p> <p>A harge, sunk through the fault of a tug, was raised by other vessels owned by the owners of the tug, there being no specific agreement between the parties in respect to payment for the services. Subsequently the tug was libeled for the loss, and the owners by proper proceedings' limited their liability to her stipulated value. Held, that such limitation did not entitle them to recover for raising the barge as a salvage service, the work having been done in performance of a duty which they .owed as owners of the tug to lessen the damage done so far as possible and for their own benefit in reducing the claim for damages, although even as so reduced it exceeded the amount of their liability as limited.</p>

Action against Surety on Attachment Bond. This is an action against the surety on an attachment bond to recover damages alleged to have been sustained by the plaintiff, who was one of the defendants in the attachment suit.

<p>In Bankruptcy. On trustee’s petition for an injunction.</p>

<p>1. Admiralty — Bringing in New Defendants — Cases Other than for Collision.</p> <p>Tbe principle of the fifty-ninth admiralty rule, which permits the bringing in of new parties in collision cases on petition of the claimant or respondent, will be applied by analogy in other cases by requiring the appearance of any additional defendant who may be responsible for the claim sued for or a part thereof.</p>

<p>1. Landlord and Tenant—Covenant for Renewal of Lease—Uncertainty.</p> <p>A covenant In a lease by which the lessor agreed to renew at the expiration of the term for a stipulated rental, “subject to certain covenants, provisos, and agreements to be decided upon at that time between the said parties, not embodying in said agreement for a further lease any of the conditions or agreements contained in this present lease,” is void for uncertainty.</p>

<p>In Equity. On motion to dissolve preliminary injunction.</p>

<p>In Bankruptcy. Rule for contempt.</p>

<p>1. Criminal Law—Trial—Misconduct of District Attorney.</p> <p>Where, at the time an objection was made to the argument of an assistant district attorney, the court, in the presence of the jury, stated to the attorney emphatically that the language was improper, and ought not to have been used, and no further action was requested by defendant and no exception taken, such argument is not ground for a new trial.</p>

<p>L Federal Courts—Jurisdiction—Amount Involved.</p> <p>In an action to recover a piece of land on which a railroad had located its depot, the value of the land to the railroad company, according to its present situation and use, is the value to be considered in determining whether the amount involved in the litigation is sufficient to confer jurisdiction on the federal courts.</p> <p>¶ 1. Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Shoe Co. v. Roper, 30 C. C. A. 459.</p>

<p>1. Railroads—Appropriation op Land—Recovery by Subsequent Vendee.</p> <p>Where a railroad company has entered into actual possession of land and erected a depot thereon, whether with or without the owner’s consent, a subsequent vendee of the land from the owner cannot recover either the land or its value from the railroad company.</p> <p>2. Same—Declaration—Demurrer.</p> <p>Where, in an action to recover land, the abstract of title attached to the declaration showed that the. conveyance to plaintiffs was made November 4, 1900, and it was alleged that defendant’s railroad depot was located thereon, and that defendant had received the rents and profits from the land since August 1, 1897, the declaration showed on its face that the railroad company had been in a.ctual occupancy of the land for depot purposes prior to the time when plaintiffs acquired title thereto, and was therefore demurrable.</p> <p>¶1. See Eminent Domain, vol. 18, Cent. Dig. § 408.</p>

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

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

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

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

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

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

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

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

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

<p>Charles C. Milton (Chandler Bullock, on the brief), for plaintiff in error.</p>

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

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

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

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

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

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

<p>Appeal by the' Importer from a Decision of the Board of United States General Appraisers, Which Affirmed a Decision by the ■Collector of Customs at the Port of New York.</p>

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