Volume 120 — Federal Reporter

<p>1. Criminal Law — Fraudulent Use oe Mails — Statutes—Construction.</p> <p>Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], provided that if any person, having devised any scheme or artifice to defraud, to be effected by correspondence with any persons by means of the post office of the United States, should, for the purpose of executing such scheme, place any letter in any post office of the United States, he should, on conviction, be punished, etc. By Act March 2, 1889 [page 3696], section 5480 was amended so as to read that if any person, having devised a scheme to defraud or to dispose of any counterfeit money, etc., to be effected by a correspondence through the mails, should place any letter in the post office, etc., he should be punished. Held, that the amendment was not' intended to restrict the statute to schemes to defraud by the intended sale of counterfeit money, but was enacted to include such schemes within the prohibition of section 5480.</p> <p>2. Same — Indictment.</p> <p>Where an indictment charged the use of the mails for the purpose of defrauding others unknown, by inducing the recipient of the letter deposited to place counterfeit money in circulation to such others, it contained a sufficient allegation of an intention to defraud, though the recipient of the letter could not have been defrauded.</p> <p>3. Same — Conviction on Several Counts.</p> <p>Where a conviction is based on several counts in an indictment, it will not be reversed, if any of the counts are sufficient.</p> <p>4. Same — Indictment.</p> <p>A count in an indictment, charging defendant with making use of the post office establishment in aid of a fraudulent scheme to sell counterfeit money, and that he did not in fact have or intend to sell any counterfeit money, and that when the letters of purchasers were returned to him he intended to convert the money therein sent and delivered through the postoffice to his own use, sufficiently charged a scheme to defraud, prohibited by Rev. St. § 5480, as amended by Act March 2, 1889 [U. S. Comp. St 1900., p. 3696].</p> <p>¶ 1. Matter relating to frauds and counterfeiting as nonmailable, see note to Timmons v. U. S., 30 C. C. A. 86.</p> <p>¶ 3. See Indictment and Information, vol. 27, Cent. Dig. § 651,</p> <p>5. Same — Trial—Instructions—Harmless Error.</p> <p>Where, in a prosecution for using the mails with intent to defraud, the letter containing the scheme had been before the circuit court of appeals on a previous indictment, and a perusal of the letter clearly showed it to be a proposition to sell counterfeit money, an erroneous statement by the court, in a charge, that the letter had been adjudicated by the court in the former case as a proposition to sell counterfeit money, was without prejudice.</p> <p>6. Same — Evidence.</p> <p>In a prosecution for using the mails with intent to defraud by means of a letter offering to sell counterfeit money, evidence of the mailing of the letter, in which an answer was asked to be addressed to a person whose name was formed from the maiden name of defendant’s wife, and that letters thus addressed were opened by defendant, and money taken therefrom and converted to his own use, was sufficient to justify submission of the case to the jury.</p>

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

<p>.1. Receivers — Certificates—Vendor’s Lien — Priority.</p> <p>The seller of rails to a railroad company, reserving a valid lien thereon for their price, may not enforce the lien, as against the certificates of the receiver of the road, duly issued by the court in the administration and maintenance of the property.</p> <p>¶ 1. Nature of receivers’ certificates, see note to Postal Tel. Cable Co. v. Vane, 26 C. C. A. 350.</p>

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

<p>1. Carriers — Stipulation Exempting prom Liability por Fire — Agreement not to Enforce — Consideration.</p> <p>Act of a consignor of cotton in giving up insurance thereon in his favor, and taking out a policy in favor of the carrier, fully protecting it from loss or destruction by fire, constituted a valuable consideration for a promise on the part of the carrier not to insist on a provision in the bill of lading exempting it from liability for loss or damage by fire.</p>

<p>1. Customs Duties — Classification—Corsets Trimmed with-Lace.</p> <p>Women’s corsets made of cotton, as the material of chief value, trimmed around the upper border with cotton lace edging, are dutiable under paragraph 339 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1662], as wearing apparel “made wholly or in part of lace,” notwithstanding the small relative value of the lace.</p>

<p>L Saltase — Services in Raising Beached Steamships — Negligence.</p> <p>Where after a vessel, beached while on fire, was raised by a wrecking company under an agreement that the service should be compensated as salvage, she listed and sank again through the insufficiency of the precautions taken by the wrecking company, which was due partly to a reliance on misleading statements made by the owner in respect to her stability, in awarding salvage for the work the additional expense made necessary thereby will be divided between the owner and the wrecking company.</p> <p>3. Same — Amount of Award.</p> <p>The amount earned as salvage by libelant, a wrecking company, in raising and clearing from bodies and wreckage the steamships Bremen, Main, and Saale after they had been beached following the fire on the Hoboken dock where they were partly burned, considered and determined.</p> <p>8. Same — Services Rendered to Burning Ship.</p> <p>Salvage compensation awarded to tugs for services in beaching the steamship Saale after she had taken fire at her dock at Hohoken, and in assisting in putting out the fire and saving the lives of persons on board.</p> <p>¶ 2. Salvage awards in federal courts, see note to The Lamingtom, 30 C. C. A. 280.</p>

<p>Action on Bond of Defendant as Superintendent of the Mint at New Orleans. On direction of verdict for plaintiff.</p>

<p>In Bankruptcy.</p> <p>The debtor is a gambler, traveling from place to place plying his vocation. He arrived at Hot Springs, Ark., in this district, and had carried on his business there for two months prior to the filing of the petition to have him adjudicated a bankrupt, which was for a longer period than he has carried on his business or resided in any other district.</p>

In Bankruptcy. This is a petition filed by certain creditors of the bankrupt, alleging that they have instituted proceedings in involuntary bankruptcy against the bankrupt in the district court of the United States for the district of Colorado, of which district the bankrupt is a resident; that said proceedings are still pending in said court undetermined, the return day having been set for' some day in the future; that the bankrupt has large sums of money due him from…

<p>1. Bankruptcy — Involuntary Petition — Warrant for Seizure of Property Pending Proceedings — Proof—Bond—Waiver.</p> <p>Bankr. Act 1898, § 69 [U. S. Comp. St. 1901, p. 3450], providing for the issuance of a warrant for the seizure of the property of an alleged bankrupt against whom an involuntary petition in bankruptcy is pending, on “satisfactory proof by affidavit” that the bankrupt has committed an act of. bankruptcy, or has neglected his property and that it has thereby deteriorated in value, and on the applicants for the warrant giving a bond conditioned on their indemnifying the bankrupt, does not authorize the court to issue a warrant for the seizure of an alleged bankrupt’s property, against whom an involuntary petition is pending, on the application of the petitioning creditors, merely supported by the affidavit of the bankrupt, averring that he waives proof showing that he has committed an act of bankruptcy, that he has neglected his property and that it has thereby deteriorated in value, that he waives the giving of the required bond, and that he agrees that the warrant may issue.</p>

<p>In Bankruptcy. On application for discharge.</p>

<p>1. Collision — Steamer and Anchored Barge — Defense of Inevitable Accident.</p> <p>Evidence examined, and held not to sustain tbe defense of a steamer that her coming into collision with and sinking a barge moored in a proper place on the bank of a river, when the steamer was passing down the stream, was due to inevitable accident, but to show that the steamer was in fault for failing to exercise the foresight and precaution required of her under the circumstances, and for unnecessarily stopping and backing to “straighten up” before entering a narrow part of the channel, when in such a position that the wind and current carried her against the barge.</p>

In Equity. Suit to annul certain conveyances of real estate, alleged to be fraudulent as to creditors of the grantor. Heard on. motion to remand the case to the state court in which it was commenced. Motion granted.

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

Lenhart brought this action to recover damages for ejection from a train and for refusal to allow him to re-énter. He was the holder of a mileage book issued by the Pennsylvania and other railroad companies jointly.

On February 25, 1902, Frank Galt filed in the district court s, voluntary petition in bankruptcy, and was adjudged a bankrupt February 28th, and thereafter I. L. Weaver was duly appointed his trustee.

In the year 1823, Jonas Chickering, at Boston, Mass., commenced the manufacture of pianos.

“Bénédictine is a cordial or liqueur resembling Chartreuse, distilled at Fécamp in Normandy. It was originally prepared by the Bénédictine Monks, but since the French Revolution has been made by a secular company.” Cent. Diet. An historical account of the origin of this cordial is given by Judge Taft in the case of Société Anonyme De La Distillerie De La Bénédictine v. Micalovitch, Fletcher & Co., 36 Alb.

Chartreuse is “a highly esteemed tonic cordial obtained by the distillation of various aromatic plants, especially nettles, growing on the Alps. It derives its name from the celebrated monastery of the Grand Chartreuse in France, where it is made.” Cent. Diet. The Order of Carthusian Monks has its monastery at La Grande, at or near Voiron, in the department of Isere, in the Republic of France.

In the year 1824 Dr. Johannes G. B. Siegert, a physician and ex-surgeon general of the army of the republic of Venezuela, and the father of the appellees, and then resident of the town of Angostura, on the Orinoco river, in the republic of Venezuela, established a business in the preparation and sale of certain bitters originally named “Aromatic Bitters,” but for a long time known to commerce as “Angostura Bitters.” The business was continued by him during his lifetime.

<p>1. Assumpsit — Grounds to Support Action — Implied Promise.</p> <p>Plaintiff and defendant, who with another owned all the stock of a corporation, on behalf of themselves and .such other entered into a contract for the sale of said stock. On thé same date defendant and the purchaser made a secret agreement by which defendant was to be paid a further sum for his interest, in consideration- of which he also gave an option on other property owned by him. Both the agreements ' were cárried out. Held, that whatever might be defendant’s liability in an action for deceit or a suit in equity for an accounting, plaintiff could not maintain an action in assumpsit to recover a definitive part of the amount so received by defendant, and claimed as bis own, there being neither an express nor implied promise to support such action.</p> <p>¶1. See Assumpsit, Action of. vol. &. Cent. Dig. § 1.</p>

The plaintiff in error, plaintiff below, was incorporated May 28, 1895, with a capital stock not exceeding $1,000,000, in shares of $100 each.

A petition in involuntary bankruptcy against the J. C. Winship Company, a corporation, was filed November 1, 1901, and on the same day a receiver was appointed, who took possession of the property of the bankrupt, including three printing presses, the subject of contention here.

<p>1. Cashiers — Action for Injury to Passengers — Questions for Jury.</p> <p>In an action for the personal injury of a passenger on defendant’s steamboat, due to a failure of a part of the boat’s machinery to operate, where it was shown that certain nuts were loose, and needed frequent attention, and the evidence as a whole presented a substantial question as to whether, if they had been properly examined before' the disaster, it might not have been avoided, the question of defendant’s negligence was properly submitted to the jury.</p>

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

<p>L Bankruptcy — Exemptions—Allowance from Property not Paid for.</p> <p>A bankrupt cannot be denied bis right to claim property as exempt under the laws of Georgia because the same has not been paid for, where the claim of the creditor has not been reduced to judgment, and no steps have been taken to fix a lien on the property for the purchase money, except by asking in the objections to the allowance of the exemption that such lien be established.</p>

<p>1. Federal Courts — Habeas Corpus — Discharge or State Prisoner.</p> <p>It is the settled rule that a federal court will not discharge a prisoner convicted in a state court, by writ of habeas corpus, on the ground that his conviction was in violation of the constitution of the United States, except in cases of emergency where some special reason exists, but will leave him to prosecute his remedy by writ of error.</p> <p>¶ 1. See Habeas Corpus, vol. 25, Cent. Dig. § 44.</p> <p>Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.</p>

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

On Rule to Show Cause against Punishment for Contempt. A. N. McLeod was indicted on the 15th of March, 1902, under section 5399 of the Revised Statutes [U. S. Comp. St. 1901, p. 3656]. The indictment charged, in substance, that McLeod, after examination, upon a charge of violating section 5440 of the Revised Statutes [U. S. Comp.

In Equity. On demurrer to bill. This is a bill in equity to enjoin the defendants, G. X. Crenshaw, as state beer inspector, and his assistant, from enforcing against the complainant, a corporation of the state of Wisconsin, the provisions of an act of the Legislature of the state of Missouri, entitled, “An act creating the office of inspector of beer and malt liquors of the state, and providing for the inspection of beer and malt liquors manufactured and sold in this state,”…

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

<p>1. Bill of Review — Effect of Dissolution of Corporation.</p> <p>A bill of review, the object of which is to set aside a decree in favor of a corporation, cannot be maintained after the corporation has been dissolved, and has ceased to exist absolutely; and the objection to the filing of such bill may be raised by a former officer or attorney of the corporation, upon whom notice of the application has been served.</p> <p>2. Corporations — Right to Sue after Dissolution — Kentucky Statute.</p> <p>Act Ky. Feb. 14, 1856, § 2, which provided that on the dissolution of a corporation it might sue and be sued as before for the purpose of settlement of its affairs and distribution of its property, re-enacted in Gen. St Ky. 1873, c. 68, § 9, was repealed by implication by Acts Ky. 1891-93, c. 203, which substantially re-enacted Gen. St. c. 68, but omitted section 9 thereof.</p> <p>8. Same.</p> <p>Ky. St. § 561, providing for the bringing of suits by or against a corporation which “expires by the terms of the articles of corporation or by the voluntary act of the stockholders,” has no application to a corporation whose existence is terminated by the repeal of its charter by the legislature.</p> <p>4. Same.</p> <p>Ky. St. § 1987, relating to the chartering of corporations by the legislature, and which provides that, “whilst privileges and franchises so granted may be changed or repealed, no amendment shall impair other rights,previously vested,” refers to rights of the corporation and persons interested therein, and not to rights of persons having claims against it.</p> <p>5. Bill of Review — Application for Leave to File — Effect of Permission</p> <p>Given by Appellate Court.</p> <p>Where an application to the supreme court of the United States for permission to apply to°a circuit court for leave to file a bill of review fór the reconsideration of a decree of that court which the supreme court had affirmed was granted formally without passing on objections made to the granting of such permission going to the right of the applicant to file a bill of review, the circuit court is not precluded from considering such objections on their merits when they are renewed before it on the application for leave to file such bill.</p>

<p>L Limitations — Iowa Statute — Nonresidence of Defendant.</p> <p>«Under the statute of Iowa, as construed by its supreme court, limitation does not run in favor of a defendant during the time he is a nonresident of the state.</p> <p>2. Res Judicata — Matters Concluded by Judgment.</p> <p>A decision of the supreme court of Iowa, in a suit by a property owner against a city, that a contract for paving a street, made by the city, was void because it created an indebtedness of the city beyond the constitutional limit, in respect to street intersections and pavement in front of abutting public property, for which the city was required to pay, is not an adjudication between the parties that the property of the complainant is not liable for the reasonable value of the paving done in front of it,which tlie city has paid for, to be recovered by a suit In equity, under sections 478, 479, Code Iowa 1873, nor is a further decision in such suit that the city could not set up such claim by a cross-bill therein, filed after the case had once gone to decree, a bar to the maintenance of a separate suit therefor.</p> <p>¶ 1. See Limitation of Actions, vol. 33, Cent. Dig. § 458.</p> <p>3. Municipal Corporations — Suit to Recover por Street Improvements— Iowa Statute.</p> <p>Where a special assessment made for street paving.was illegal, but the work was done, and the city subsequently paid the claim of the contractor therefor, it may maintain a suit in equity against an abutting property owner to recover for the improvement in front of his property on a quantum meruit, under sections 478, 479, Code Iowa 1873; and the defendant cannot set up to defeat such recovery any technical irregularity in the assessment or proceedings, or that the city had no authority to pay the claim of the contractor.</p>

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

<p>In Bankruptcy.</p>

<p>1 Strikes — Injunction—Federal Courts — Nonresident Trustees — Capacity to Sue.</p> <p>An Iowa telephone company executed a deed of trust in which plaintiff, a foreigh corporation, was named as trustee, but plaintiff was not authorized to bring any suit to enforce the deed, nor exercise any control over the corporation or its property, until after default had been made in the payment of interest on its bonds, etc. Before such default, the telephone company brought suit in a state court to restrain certain strikers, residents of the same state, from boycotting, picketing, and intimidating its employes, etc. Held, that plaintiff had no capacity to sue such strikers for the same relief in a federal court in an action in which the telephone company was not joined.</p>

<p>1. United States — Claims—Army—Soldiers—Medical Attendance — Implied Contract.</p> <p>Army Regulations, § 1452, provides that when medical attendance is required by an officer or enlisted man on duty, and the attendance of a medical officer cannot be had, the officer, or, in his absence, such enlisted man, may employ a civilian physician, and a just account for his services and necessary medicines will be paid by the medical department Section 1457 requires that accounts for board, lodging, nursing, and medical attendance of sick soldiers in private hospitals shall he sent to the surgeon general for settlement. Held, that where a corporal was taken sick while detached on recruiting service, and required immediate medical attention, which could not be afforded by the department, and he was sent to a private hospital by his captain in command, who requested that board, lodging, medical attendance, etc., be furnished tb him, an implied contract was thereby created, which entitled plaintiff to recover against the United States for the reasonable value of the services so furnished.</p>

<p>1. Judgments — Relief Against in Equity — Fraud of Plaintiff.</p> <p>A New York corporation, having its principal office in that state, owned and operated coal mines in Virginia. Its general manager there, having entire charge of its affairs in that state, shortly before leaving the service of the company, procured a judgment to be entered in his favor against it by a federal court in Virginia without its knowledge, and for this purpose employed one of the attorneys of the company, whose firm had been theretofore retained by him, to represent it, and which had no relations with the company except through him. The attorney secured an acceptance of service of process for the company by a bookkeeper, who was under the plaintiff’s control, and who, in the acceptance, represented himself, without authority, to be the company’s agent. The company had no notice of the suit or judgment until months after it was rendered, although both the plaintiff therein and the bookkeeper were in constant communication with its officers. Held that, in the absence of conclusive proof of the plaintiff’s good faith, a court of equity should set aside his judgment to permit the company to defend the action on the merits.</p> <p>2. Foreign Corporations — Service of Process — Virginia Statute.</p> <p>The statute of Virginia (Code, § 1105) provides that, where a foreign corporation doing business in the state fails to comply with the requirement to designate an agent upon whom process may be served, service upon either of the officers, agents, or employés of the company shall be deemed a sufficient service on the company; but the statutes of the state nowhere provide for the acquiring of jurisdiction over a foreign corporation by an acceptance of service by any of its agents or employés. Held, that, to acquire jurisdiction under section 1105 by service upon an agent or employé, its provisions must be strictly followed, and the service made by an officer, and that an acceptance of service by a bookkeeper employed by a foreign corporation, who represented himself, in the acceptance, as having authority to represent the company, but in fact did not, conferred no jurisdiction on a federal court in Virginia to render a judgment against the company.</p> <p>8. Process — Sufficiency of Service — Effect of Recital in. Judgment.</p> <p>Where jurisdiction to render a judgment against a defendant is claimed upon a substituted service, and the record shows that such service was not made as prescribed by the statute, a recital in the judgment that “process was duly executed on the defendant according to law” is not conclusive.</p> <p>¶ 2. Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3.</p>

The action was brought in the Circuit Court to enforce the double liability of a stockholder in a Kansas corporation. Upon demurrer to the declaration, the demurrer was sustained, and on refusal of plaintiff in' error to amend or otherwise change the declaration, the case was dismissed. From this decree, sustaining the demurrer to the declaration, and dismissing the cause, this writ of error is prosecuted. The further facts are stated in the opinion of the Court.

<p>1. Contracts with Drainage District — Construction op Ditch — Implied Obligation op District to Furnish Right op Way.</p> <p>In a contract between a drainage district and one who agrees to construct certain ditches for the district, it is an implied condition that the district will provide the necessary right of way, without which the contractor could not perform the contract on his part.</p> <p>2. Same — Liability por Breach.</p> <p>A drainage and levee district created under the Illinois statute, which expressly provides that such district shall be a body corporate, with power to contract and be contracted with, and to sue and be sued, although a corporation in invitum, is liable in damages for breach of a contract, lawfully made by its commissioners under the powers conferred by the statute for the construction of ditches, where it failed to-provide right of way therefor, so that the contractor could complete the same within the time specified, and by reason of the delay he was damaged.</p>

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

<p>1. Rail-road Stations — Use by Hackmen — Right of Company to Exclude.</p> <p>A railroad company is under no duty, as a common carrier, to permit hackmen to enter its stations for the purpose of soliciting business from its passengers, and therefore its granting of such right to one person or concern does not entitle others to equal privileges on the same terms.</p> <p>¶ 1. See Carriers, vol. 9, Cent. Dig. § 29.</p> <p>2. Same — Obstruction of Entrance — Injunction.</p> <p>A railroad company has a property right to a free and unobstructed entrance to its stations for its passengers and employés, and is entitled to protection in such right by injunction to restrain haekmen from continuously congregating upon the sidewalk around the doors of a station, for the purpose of soliciting business, in such numbers as to interfere with ingress and egress; but such an injunction should go no further than is necessary to protect complainant’s private right of property, leaving any obstruction to the use of the street or walk by the public generally to be dealt with by the municipality.</p>

The barge Maida, bound down the river Ste. Marie in tow of the steamer Marina, came into collision with the barge Australia, bound up the river, in tow of the steamer Italia, the Maida receiving considerable damage. The-collision occurred on a bright afternoon in May, 1898, in that part of the river known as the “Little Rapids Cut.” That cut is an artificial channel 300-feet wide, between navigable banks. There is a current through this cut of about four miles.

<p>1. Equity — Special Master — Appointment of Deputy Clerk.</p> <p>Where a circuit, court determines that a special reason exists for appointing a deputy clerk special master, such appointment is not reversible error because, through inadvertence, the reason is not assigned in the order, as required by Act March 3, 1879 (20 Stat. 415 [Comp. St 1901, p. 591]).</p> <p>2. Receivers — Review of Appointment — Discretion of Court.</p> <p>The appointment of a receiver is discretionary, and will not be re' viewed unless a gross abuse of discretion is shown.</p> <p>3. Equity — Reference to Master — When Proper.</p> <p>Where a bill presents a case in which the taking of an account is necessary, a reference to a master may properly be made on the pleadings, and notice to the defendant is not essential.</p> <p>4. Injunction — Requiring Bond — Discretion of Court.</p> <p>Requiring a bond as a condition to the granting of a preliminary Injunction is á matter within the discretion of a circuit court</p> <p>5. Mortgages — Liability of Mortgagee in Possession.</p> <p>A mortgagee, put in possession of a going concern which by the terms of the mortgage he is required to keep in operation, cannot be charged with the rental of the property while so in his possession, but his duty is to operate the plant as would be done by an ordinarily prudent owner, and his liability is only to account for the net proceeds of the business.</p> <p>6. Appeal — Review—Findings of Fact.</p> <p>While findings of fact made by a master and concurred in by the Circuit Court are entitled to great weight, and will generally be followed by the Appellate Court, they are not conclusive, and it is the duty of the Appellate Court to examine the record and form its own conclusions.</p> <p>¶ 4. See Injunction, vol. 27, Cent. Dig. § 323.</p>

John R. L. Smith and J. T. Hill filed in the court below in Re Macon Sash, Door & Lumber Company, Bankrupt, their application for payment out of the bankrupt estate of their fees as attorneys for the petitioning creditors, and for services rendered under employment of authority of the court to the receiver and trustee in said bankruptcy matter.

<p>Appeals from the District Court of the United States for the Northern District of Illinois.</p> <p>In Bankruptcy.</p>

At the December Term, 1901, of the United States District Court, the plaintiff in error was tried for, and convicted of, a violation of section 5480 of the Revised Statutes [U. S. Comp. St. 1901, p. 3690].

<p>1. Negligence — Action for Damages — Questions for Jury.</p> <p>In an action to recover for damage alleged to have been sustained by plaintiff by reason of the breaking of a temporary dam constructed by defendant, evidence as to cause of the damage and upon the question of defendant’s negligence and plaintiff’s contributory negligence held such, as to require the submission of such questions to the jury.</p>

<p>1. Appeal — Record in Circuit Court of Appeals.</p> <p>A circuit court of appeals cannot make its own record for the hearing of a case on appeal by authorizing the withdrawal from its files of the record on a previous appeal, and permitting the same to be refiled as a part of the record on a subsequent appeal in the same case. It can act only upon a record which comes from the court below, properly certified.</p> <p>Ü. Same — Insufficiency of Record — Motion to Dismiss.</p> <p>The circuit court of appeals will not dismiss an appeal on motion on the ground that the record filed is insufficient; that being a matter to be determined at the hearing on the merits, or to be corrected by certiorari for a diminution of the record.</p>

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

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

<p>1. Sales — Construction — Agreement to Purchase Article to be Produced.</p> <p>A contract by which the first party agreed to sell and deliver hops of a certain quality, of the crop to be grown five years after the contract was made, and the second party agreed to receive and pay for the same, does not constitute a sale, which entitles the first party to recover the contract price for goods sold and delivered, on the refusal of the second party, without justification, to receive and pay for the hops when tendered at the designated time and place of delivery, but is merely an agreement to sell and purchase at a future time; and the remedy of the first party is by an action for damages for breach of the contract.</p>

<p>1. Admiralty — Appeal—Review of Findings of Fact.</p> <p>Where the objection on appeal to a decision in admiralty is that It is based on a fact found by the lower court, the decision will not be reversed unless it clearly appears that there was error.</p> <p>3. Towage — Injury of Tow — Liability of Tug.</p> <p>A steamship lying in a slip without steam up employed a tug to take her out and move her to another location, a service which required especial care because of the presence of other vessels in the slip. The tug borrowed a hawser from the ship, which broke, and the ship was injured by striking against a pier. Held, that the tug, which was in her home port, was bound to provide herself with proper equipment, and could not charge the injury in whole or in part to the fault of the ship on the ground that the hawser was insufficient.</p> <p>¶ 1. See Admiralty, vol. 1, Cent. Dig. § 770.</p>

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

Upon the suggestion of the Secretary of the Treasury that certain parcels of land in the village of Mackinaw City were required for lighthouse purposes, the Attorney General, through the District Attorney for the Eastern District of Michigan, instituted these proceedings in the District Court for that district to acquire the title for the United States. The lands appear to have belonged to the village.

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>This is a bill to restrain infringement of an alleged trade-mark, and also-to restrain unfair competition. The trade-mark claimed consists of the figures and letter “600W,” in connection with the sale of cylinder oil, and branded’ upon the barrel heads in which such oil is sold. The defendant is charged with infringing by using in connection with the sale of its cylinder oil the character “600V.” The charge of unfair competition is based on the claim that complainant’s oil has become widely and favorably known as “6O0W,” and that the use by defendant of the symbol “600V” in connection with the-sale of its oil is calculated to mislead and deceive the public into the purchase of the defendant’s oil as and for the oil made and sold by complainant. District Judge Wing, upon the pleadings and evidence, dismissed the bill.</p>

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

<p>1. Railroads — Accident at Crossing — Contributory Negligence.</p> <p>Where plaintiff, struck by a train while driving over a railroad crossing in a town, testified that before driving on the crossing he stopped his team, and looked and listened, and that, while he could not see in the direction from which the train was coming because of obstructions, he heard nothing, and his testimony was corroborated by other witnesses and by testimony tending to show that the whistle was not blown nor the bell rung for the street crossing, the question of contributory negligence was properly submitted to the jury.</p>

<p>1. Patents — Preliminary Injunction against Infringement — Acquiescence in Validity.</p> <p>It is within the discretion of the court to grant a preliminary injunction against infringement of an unadjudicated patent, where the defendant has for three years been making and selling the patented article under a license from the patentee, which was then terminated by the latter, although the patent was not issued until near the close of such time, and where defendant since the cancellation of the license has been marking the articles sold by him as made under such patent.</p> <p>2. Same — Infringement—Changing Location of Parts.</p> <p>While a patent for a combination is not infringed if any one of the elements of the combination is omitted, a change in the form or the location or sequence of the elements will not avoid infringement where they are all employed to perform the same functions, unless form, location or sequence is essential to the result or to the novelty of the claim.</p> <p>8. Same — Name of Patented Article — License to Use.</p> <p>A patentee, who has adopted a name to denote and identify the patented article, may license the use of the name in connection with the right to manufacture and sell the article, and the licensee has no right, after the expiration of the license, to continue the use of the name in connection with a different and competing article.</p> <p>4. Same — Validity and Infringement — Water Heater.</p> <p>The Folger patent, No. 680,769, for a water heater, claim 5, held valid and infringed on appeal from an order granting a preliminary injunction.</p> <p>5. Same — Suit in Equity — Multifariousness of Bill.</p> <p>A bill which seeks to enjoin an unauthorized person from using a patented article, and also from using the generic name of that article, is not multifarious.</p> <p>¶ 5. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p>

<p>Í. Trade-Names — Termination of Exclusive Right to Use — Expiration of Patent.</p> <p>Where the manufacturer of an article, to which he gave a name, by which it became known, placed upon the packages in which it was sold to the public a notice in the usual form that the article was made under a patent, the right to the exclusive use of the name as a trade-name expires with the expiration of the patent, whether the article was in fact made in accordance with the patent or not.</p>

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

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

<p>In Equity. Suit for infringement of letters patent No. 433,791, for a coil clasp, granted August 3, 1890, to Calvin Jackson. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 482,965, granted September 20, 1892, to Calvin Jackson, for a method of, and apparatus for, coiling and inserting wire. On final hearing.

<p>1. Patents — Combination—Patentable Invention.</p> <p>Where, in a machine for inserting wire-coil clasps in belt ends, the result to be attained is the successful insertion of the coil in the belt, that the different parts of the machine contribute to this each in its own time and way constitutes a true combination, which is patentable.</p> <p>2. Same — Evidence as to Who was Original Inventor — Old Machine.</p> <p>Where,, in a wire-coil machine, the invention claimed is separately operating jaws and rolls, an old operative machine, in which this arrangement appears, constructed by another party some three years earlier, according to the testimony of several who saw and examined it, is sufficiently substantiated to be received as an anticipation.</p> <p>8. Same — Anticipation—Machine for Making and Inserting Wire Coils.</p> <p>The Templin patent, No. 593,406, for an improvement in wire-coil machines, whereby the clamping-jaws and coil-rolls are operated independently of each other, while disclosing a patentable device, is void for anticipation by a machine previously constructed by Henry M. Jackson, which embodied the essential and patentable feature of the improvement shown in such patent.</p>

In Equity. Suit for infringement of letters patent No. 473,182, for packing for pistons, issued to Ambrose A. Tripold and Charles F. Davenport April 19, 1892. On final hearing. Briesen & Knauth (Arthur v. Briesen and Henry M. Turk, of counsel), for complainant.

<p>L Patents — Suit for Infringement — Multifariousness of Bill.</p> <p>A bill for infringement of three separate patents is not subject to demurrer for multifariousness where it alleges that the things patented are capable of conjoint use, and are in fact so used in the apparatus of defendant, and the patents, of which profert is made, contain nothing inconsistent with such averment.</p> <p>¶ 1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p>

<p>In Equity. Suit for infringement of letters patent No. 603,738, for a bagatelle board, granted to Montague Redgrave May 10, 1898. On final hearing.</p> <p>The following is the opinion of the examiners in chief:</p> <p>The claims appealed are: “(1) In a bagatelle board, having a shooting, trough provided with countersunk end, top plates having, in said countersunk top plate, a longitudinal slot, in combination with a spring-impelled block and a detachable handle, extending outwardly from said block through the slot, arranged to move reciproeatingly therein, said handle extending to the horizontal plane of the top plate, as and for the purpose intended, substantially, as described.. (2) In a bagatelle board, having a side shooting trough, the combination with a top plate, having a longitudinal inverted curve adjusted at one end of the trough, connected at its. opposite side. to. ledge, b, and a strip, a, said trough provided at its countersunk portion with a longitudinal slot, of a spiral spring, located in said trough, to actuate a movable block, i, and adjustable handle, the shank of which, extending through said slot, is connected to block, i, the upper end of said handle extending to the upper plane of the slotted plate, as and for the purpose intended, substantially as described.” The references are patents to Redgrave, May 30, 1871, No. 115,357; Davies, December 24, 1872, No. 134,262; Steele, November 7, 1876, No. 184,184.</p> <p>The specification states, that the device of the appealed claims is an improvement on that of the United States patent granted to this applicant, which has been cited against the claims. By the expiration of that patent its device has become the property of the public. The change of the old device consists in transferring the handle for drawing back the spring-impelled block from the end of the shooting block and from a slot in the end of the shooting trough to the top of the shooting block and to a slot in the top of the shooting trough, and in countersinking it in that top. The function of the handle in its new place and that of the entire device after the change of place of the handle are unchanged. There are some advantages which are incident to the use of the handle in the new place, such as its increased strength because of its shortness, the power being applied nearer to the block; and the countersinking of the handle protects it from blows, and enables closer packing of several boards together for transport. These are all advantages resulting solely from rearrangement, without any change or advantage in the functions of the apparatus for its purpose. Mere location of an old element of an old device in one or another position in the device, without change of function, has long been held to be entirely within the province of the skilled workman, and we see no reason why this change is a new invention. This new position of the operating handle, relatively to block or ■bolt to be drawn back and its countersunk position, appear in the references, whose entire construction has been particularly used by this appellant.</p> <p>There being in this change no new function imparted to the device, and no new idea of place or of construction to utilize that place for the handle, we fail to see that the claims contain anything inventive beyond what is in appellant’s expired patent The decision of the examiners is affirmed.</p>

<p>1. Grand Jurors — Mileage—Computation.</p> <p>The legal fiction that a term of court is but one day cannot affect the construction of section 852 of the United States revised statutes, as amended [U. S. Oomp. St. 1901, p. 656], relating to the allowance of mileage compensation to jurors.</p> <p>2. Same.</p> <p>Where grand jurors Jn obedience to due process attended the District Court of the United States in Delaware on the first day of the term, and were on the same day discharged by the court until the thirteenth day thereafter, on which latter day they duly attended and were finally discharged, held, that they were entitled to mileage compensation for two round .trips, or four single trips, between their residence and the place of holding court</p> <p>(Syllabus by the Court.)</p>

<p>1. Municipal Corporations — Suit to Enjoin Creation of Illegal Indebtedness — Parties.</p> <p>To a suit by a taxpayer against a city to enjoin it from creating a debt beyond the constitutional limit, by carrying out a contract made with a person or corporation, such person or corporation is not an indispensable party defendant.</p> <p>2. Same — Limitation of Indebtedness — Basis of Computation.</p> <p>Under the provision of the Iowa constitution limiting the indebtedness which may be contracted by any municipality to 5 per cent, of the value of its taxable property, such per cent, is to be computed on the assessed value of the property for taxation, and not on the actual value, where the two are not the same.</p> <p>8. Same — Contract Creating Indebtedness.</p> <p>That a city which is already indebted in excess of the constitutional limit has in its treasury a part of the money necessary to discharge the obligation it assumed in entering into a contract for a public improvement, and may be able to collect the remainder from taxes by the time the obligation matures, does not alter the fact that such contract creates an indebtedness within the constitutional inhibition, and is therefore one which the city was without power to make.</p> <p>4 Federal Courts — Following Decision of Appellate Court — Conflicting State and Federal Decisions.</p> <p>Where the circuit court of appeals in a suit by a taxpayer determined that a contract made by a city under an ordinance was void as creating an indebtedness, *when the city was then indebted to the limit permitted by the constitution of the state, such decision is binding on a circuit court of the United States in a subsequent suit between the same parties, involving a different contract, but one which was made pursuant to the same ordinance, notwithstanding a contrary decision by the supreme court of the state.</p> <p>¶ 2. Constitutional and statutory limitations of municipal indebtedness, see note to City of Helena v. Mills, 36 C. C. A. 6.</p> <p>¶ 4. State laws as rules of decision in federal courts, see notes to Spokane Falls & N. Ry. 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>J. Complaint — Setting Ooi Instruments — South Carolina Practice.</p> <p>A plaintiff is not required, either by the Code of Procedure of South Carolina, or the practice of the federal courts, to set out in hsec verba a written instrument sued on in the complaint, but it is sufficient if he states its legal effect; nor is it essential, under the rules of the circuit court in that state, to attach a copy of such instrument as an exhibit.</p> <p>'•8. Same — Particularity op Allegations.</p> <p>Under the Code of Procedure of South Carolina, which requires a complaint to contain a plain and concise statement of the facts constituting the cause of action, a complaint on a bond of fidelity insurance which alleges the giving of the bond by defendant, insuring plaintiff against loss through the fraud or dishonesty of an employé, and stating its terms in legal effect, is sufficiently definite and certain as to the losses sued for where it alleges that, within the time fixed by the contract, plaintiff discovered losses sustained by reason of the fraud and dishonesty of the employé during the ■ term covered by the bond; that a statement and proof of such losses were immediately furnished to defendant, and the agents of both parties examined and adjusted the amount of such losses, and tabulated the same, after a full investigation; and that a copy of such adjustment was furnished to defendant. Plaintiff cannot be required in such case to set out the several items of loss, and the evidence in support of the same.</p>

In Equity. Suit for specific performance.” This is a suit to enforce specific performance of a contract of sale of the Edgewater Distillery plant, located at Lair, in Harrison county, Ky., and certain personal property connected with its operation and business. The contract is dated April 6, 1899. It includes claims for storage for whisky in the bonded warehouse, but does not include any whisky. The price to be paid is $40,000 cash.

Proceeding at Paw to Condemn Right of Way and Suit in Equity for Injunction. Heard together on petition in the former case, and on motion in the latter for a preliminary injunction.

<p>At Law. On motion to remand to state court, and on demurrer „ to complaint for misjoinder of causes of action.</p>

<p>1. Railroads — Foreclosure of Mortgages — Intervention.</p> <p>General creditors of a railroad company, who permit all its property to be taken possession of by receivers appointed in a foreclosure suit, and a decree to be entered subjecting such property to the payment of preferential debts, receivers’ liabilities, and the mortgage indebtedness, and the property to be sold under the decree, and the sale confirmed, without taking any steps to assert their claims, although they matured prior to the commencement of the foreclosure suit, are precluded by laches from thereafter maintaining petitions of intervention to compel payment of their demands from the fund in the hands of the receivers on the ground that such receivers took into their possession property which was not subject to the lien of the mortgage.</p> <p>2. Same — Mortgage Including Personalty — Effect of Failure to Record as Chattel Mortgage.</p> <p>Where, as under the Kansas statute, as construed by its courts, an unrecorded chattel mortgage is valid as between the parties, and, if delivery to the mortgagee takes place at any time before a levy or seizure is made in behalf of those persons as to whom it is void, the defect will be cured, and the mortgagee’s lien will be protected, notwithstanding his failure to record, or to file the annual affidavit required, a mortgage covering all the property of a railroad company, real and personal, although not recorded as a chattel mortgage, is valid, as against general creditors of the mortgagor, as to personal property which was taken possession of and sold by receivers in a suit to foreclose, and passed into the possession of the purchaser before suit brought by such creditors.</p> <p>8. Same — Rights of General Creditors — Laches.</p> <p>General creditors of an insolvent railroad company, whose demands are unliquidated, and who take no steps to enforce payment until after all the property and funds of the company subject to their claims have been disbursed through a receivership in payment of other liabilities. have no equity to require payment from the proceeds of mortgaged' property on the ground that the receivers took possession of money in the treasury of the company, and received the net income from the property.</p> <p>4. Same — Right of Foreclosure.</p> <p>The fact that by the terms of a railroad mortgage the trustees therein are not authorized to enter and take possession of the property until six months after a default does not preclude a court of equity from entertaining a bill of foreclosure before that time, and appointing receivers, when it is found necessary for the protection of the mortgaged property, and to insure the due performance of the obligations which the mortgagor owed to the public.</p> <p>5. Same — Right of Intervention — Impeachment of Decree.</p> <p>After a court of equity has entered a decree foreclosing a railroad-mortgage, and has sold the property free from all demands against the mortgagor, except an obligation on' the part of the purchaser to see that the costs of suit, the receivers’ liabilities, and preferential claims-which may be allowed are paid, if not discharged by the proceeds of sale, it will not entertain petitions of intervention by unsecured creditors of the mortgagor, whose claims are not preferential, to compel the purchaser to pay the same on the ground that it is, in effect, a-reorganization of the old company, and liable for its debts. Such a proceeding seeks to impeach the validity of the decree and sale, which cannot be done by an intervener, but only by an original suit.</p>

<p>1. Bankruptcy — Insolvency—Property to be Excluded from Assets.</p> <p>Where property has been transferred in payment of or as security for a just debt, the mere fact that it may involve a preference in bankruptcy, should bankruptcy proceedings be instituted against the debtor;, does not exclude it from consideration in determining his solvency under the provisions of Bankr. Act, § 1, subd. 15 [U. S. Comp. St. 1901, p. 3419].</p> <p>2. Same — Proof of Insolvency — Admission of Corporation.</p> <p>A petition filed in a state court by the directors of a corporation, alleging its insolvency, and praying its dissolution and the appointment of a receiver, is not a sufficient ground for a finding of insolvency by a court of bankruptcy in involuntary proceedings subsequently instituted against it, where a different rule as to what constitutes insolvency obtains in the state courts from that prescribed by the bankruptcy act, and especially when the schedule attached to such petition showed an apparent excess of assets over liabilities.</p>

<p>1. Contracts — Legality—Restraint on Competition.</p> <p>A restrictive covenant, made by one capable of contracting, which is unlimited as to time, in area covers the entire United States, is ancillary to the main lawful contract (being in part consideration of the payment for good will sold), and is reasonable and no broader than is necessary to save to the covenantee the rights and privileges for which he has paid, may be enforced.</p> <p>¶ 1. Monopolistic contracts — validity as affected by public policy, see notes to Chicago, M. & St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 9 C. C. A. 666; Cravens v. Carter Crume Co., 34 C. C. A. 486.</p> <p>See Contracts, vol. 11, Cent. Dig. §§ 559, 565-567.</p>

<p>1. Building and Loan Associations — Contract of Borrowing Stockholder-Law Governing.</p> <p>The contract of a borrowing stockholder in a building and loan association is governed by the law of the state in which the association is Incorporated and has its home office, although the security may be situated in another state, where the subscription to stock was made and accepted at the home office, and the stock installments, which are ultimately to extinguish the loan, are there payable, as well as the interest by the terms of the bond given for the loan.</p> <p>2. Same — Construction of Contract — Accounting between Association and Borrowing Stockholder.</p> <p>The bond of a borrowing stockholder in a building and loan association provided that his payments of installments on his stock and of interest should continue until the stock was matured by reaching par value. It also contained the following provision: “It is further understood that, upon final settlenient with the association, it shall retain as installment on the said stock and interest no greater sum than the amount actually advanced, with interest thereon at the rate of eight per cent, per annum.” Held that, the association having become insolvent before the maturity of the stock, the borrower was entitled to make final settlement under such provision, being charged with the loan and 8 per cent, interest thereon, and credited with installments of stock and interest paid as partial payments thereon.</p> <p>¶ 1. What law governs usury in contracts of building and loan associations, see note to Kirlicks v. Association, 51 C. C. A. 319.</p> <p>8. Equity Pleading — Affirmative Relief to Defendant — Necessity of Cross-Bill.</p> <p>A defendant in equity can only be given affirmative relief on a cross-bill.</p> <p>¶ 3. See Equity, vol. 19, Cent. Dig. § 450.</p>

<p>In Equity. On motion to stay proceedings in a state court'.</p>

<p>1. Salvage — Vessels of Common Owners — Right to Compensation from Cargo.</p> <p>Tbe fact that the owners of a salving ship were also owners of the ship salved does not preclude them from recovering salvage compensation from the cargo saved, where the peril which rendered the service necessary did not arise through any breach of the contract of carriage.</p> <p>2. Same — Services Rendered to Tow.</p> <p>An arrangement by one vessel to tow another belonging to the same owners, which had become disabled,- did not include an agreement to render salvage services to the cargo of the tow, by extinguishing a fire which occurred without fault of either vessel, so as to preclude a recovery for such services.</p> <p>8. Same — Services in Extinguishing Fire — Amount of Award.</p> <p>The steamer City of Genoa, while proceeding from Duluth to Buffalo, laden' with wheat, became disabled, and was overtaken and taken in tow by the Mecosta, belonging to the same owners and bound for the same port. While in Lake Erie the City of Genoa caught fire forward, without fault on her part, and in response to her signal for assistance the Mecosta made fast to her, and for seven hours the crews of the two vessels fought the fire, until it was under control. The work was skillfully done, and the fire confined to the forward part of the vessel, which was held before the wind by the Mecosta, and the cargo was not damaged, except to some small extent by smoke and water. The Mecosta was in some peril; her bulwarks being scorched, and the lines by which she was made fast being burned. The fire was in the night, but the weather was calm, with little wind. The Mecosta was worth $70,000; the Genoa, after the fire, $60,000; and her cargo, $79.000. Held, that the Mecosta was entitled to salvage compensation from the cargo to the amount of $3,800, being about 5 per cent, of its value; $1,500 of the amount to be distributed among the crew.</p>

<p>.1. Chattel Mortgages — Construction—After-Acquired Property.</p> <p>A chattel mortgage described as covered thereby a lithographic press “and all and singular each and every of the tools, implements, furniture, equipments, and appliances * * * row in my said lithographic establishment, * * * and constituting the plant with which said business is now carried on, and * * * all of the new lithographic machinery, presses, tools, implements, and appliances of every kind that I shall hereafter put into said establishment and plant for the purpose of improving the same or keeping it as good as It is at present.” Held, that such mortgage did not cover machinery and appliances subsequently placed in the establishment by the mortgagor for the purpose of adding a new branch of business, and not used in the business of lithographing.</p> <p>2. Bankruptcy — Avoidance op Liens — Subrogation op Trustee.</p> <p>Where, under the law of the state, a chattel mortgage on after-acquired property is valid between the parties, but void as against attaching creditors, a trustee in bankruptcy will not be subrogated by the court to the rights of an attaching creditor, to enable him to defeat the lien of a mortgagee of such property whose mortgage was of record, and who has the superior equity, because the new property was added for the purpose of keeping the mortgaged plant in as good condition as when the mortgage was given.</p> <p>S. Chattel Mortgage — Apter- Acquired Property — Additions Made by Purchaser prom Mortgagor.</p> <p>A chattel mortgage of a mechanical plant, covering additions made to maintain or improve its condition and efficiency, which is valid against the mortgagor, will be enforced as to additions made to the plant for that purpose by a purchaser from the mortgagor, who assumed all his obligations under the mortgage.</p>

<p>1. Corporations — Acts of Directors — Individual Profits — Actions — Parties — Pleading.</p> <p>Where, in an action by a corporation to recover profits alleged to have been illegally made by a director, since deceased, it was alleged that such director, with consent of his partner, had acted as complainant’s agent in the purchase of cereals,,and received therefor a salary, but, in violation of his trust, such director had charged profits on the cereals over the price paid, but there was no allegation that the director’s estate was inadequate to meet complainant’s demand, the partner was not a proper party, and the bill stated no cause of action as against him.</p> <p>2. Same — Principal and Agent.</p> <p>A bill in equity to recover profits alleged to have been made by a director of a corporation, charging that such director had been employed on a salary to purchase cereals for the corporation, and that he had sold such cereals to the corporation at a. profit, could not be sustained on the theory that it was a bill to enforce a trust.</p> <p>8. Same — Accounting.</p> <p>A bill in equity to recover profits illegally made by decedent as complainant’s agent for the purchase of cereals could not be sustained on complainant’s allegation that it had no other mode of ascertaining the facts as to the items and parties from whom purchases were made than by a bill in equity, and on its offer to do equity, where there was no mutual, intricate, or complicated account, and the relief to which complainant would be entitled was of the same measure and bind as it might obtain at law.</p> <p>4. Same — Multiplicity op Items.</p> <p>In a suit against the personal representatives of an agent of a corporation to recover profits illegally received by the agent, where there was no charge in the bill that the agent’s boobs were fraudulently kept, and there was no allegation that any different evidence or information could be obtained in equity from that obtainable at law, the allegation that the accounts consisted of many thousand items was insufficient to sustain the jurisdiction of a court of equity.</p>

<p>1. Bankruptcy — Property Passing to Trustee — Contract Reserving Title in Seller.</p> <p>Petitioner sold goods to a bankrupt prior to the bankruptcy, under a contract by which the purchaser agreed to settle all bills by notes when the goods were received, or on monthly balances, at his option. It was contemplated that the goods were to be sold by the purchaser, who was given the exclusive right to sell the same, at the place where he was in business, and there was no provision that he should account for sales made by him; all settlements being made on the notes or monthly balances, all of which were to become due at once on the death or insolvency of the purchaser. Held, that a further clause providing that the ownership of all the goods and their proceeds should remain in petitioner until the goods were paid for was inconsistent with the other provisions of the contract, and, if it had any effect, created a secret lien, fraudulent against creditors; that the title to the goods passed to the purchaser, and vested in his trustee in bankruptcy.</p>

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

<p>1. Summons — Time of Entry — Power to Extend Beyond Term.</p> <p>The general law and practice in Massachusetts prior to the enactment of Rev. Laws Mass. e. 173, § 11, did not so definitely limit the authority of the court and parties as to forbid an extension of the time for entry of a writ beyond the term at which it was returnable, where the extension was made by agreement of the parties, and with the consent of the court.</p> <p>2. Jurisdiction of Federal Courts — District of Suit.</p> <p>A suit on the bond of a contractor for public work, brought in the name of the United States for the use and benefit of others, as provided by Act Aug. 13, 1894 (28 Stat. 278 [U. S. Comp. St. 1901, p. 2523]), even conceding it to be a suit by the United States for the purpose of conferring jurisdiction on a federal court under the judiciary act of 1887-88 [U. S. Comp. St. 1901, p. 507], regardless of the citizenship of the-parties, cannot he maintained in such court on that ground in any district other than the one of which the defendant is an inhabitant.</p>

<p>1. Collision — Steamers Crossing — Excessive Speed in Fog.</p> <p>In a suit for collision in the night between the Atlantic steamships Biela and Eagle Point, 150 miles east of Sandy Hook, while on crossing courses, a finding that there was a fog at the time and place of collision so dense that the two vessels could not see each other until within 250 yards, and that the Biela was therefore in fault for maintaining full speed and failing to give fog signals, held supported by the evidence, but a finding that the Eagle Point was not in fault for excessive speed held erroneous.</p> <p>2. Same — Violation of Bulb as to Speed.</p> <p>Under article 16 of the international navigation rules [U. S. Comp. St. 1901, p. 2868], which provides that “every vessel shall in a fog, mist, falling snow or rain storms go at a moderate speed, having careful regard to the existing circumstances and conditions,” a speed of eight miles an hour by a steamship proceeding in the night and in a dense fog, 150 miles east of Sandy Hook, in the customary track of transatlantic steamers, is not a moderate speed; nor can such speed be justified on the expressed opinion of her officers that she could not be properly controlled at a lower rate of speed. The requirement of the rule is absolute, and liability for a collision caused or contributed to by its violation cannot be avoided because a vessel is so constructed or is running so light that she cannot be navigated at such a slow speed as will comply with such requirement.</p> <p>¶ 2. Collision rules as to speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.</p>

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

<p>1. Contracts — Issue as to Construction — Admission on Parol Evidence.</p> <p>In an action on a contract embodied in writings, where there is a controversy as to whether certain words used are ambiguous and unintelligible, such construction is a matter to be determined by the court as one of law, and, if it determines that the words are not ambiguous, parol evidence is not admissible to show the understanding of either party as to their meaning, nor to vary or contradict them, although the court may, on the issue as to ambiguity, hear parol evidence to throw light upon the collateral facts and circumstances; but when the court admits testimony of a contradictory character as to the meaning of the words, in view of the circumstances under which they were used, the question becomes one for the jury, and the burden rests upon the plaintiff to establish his contention as to their meaning by a preponderance of evidence.</p> <p>2. Same — Delivery under Contract of Sale — Question for Jury.</p> <p>Plaintiffs contracted with defendant verbally, at Ft. Worth, Tex., for the purchase of a quantity of wheat. Each party wrote a letter to the other, confirmatory of the oral contract, and each stating the price and quantity, and that the wheat was to be “delivered Galveston.” Plaintiff’s letter stated, in addition, that the purchase was by Galveston weight and grades, and contained direction for shipment from Ft. Worth, where the wheat was then stored. Defendant shipped the wheat, and plaintiffs paid for the same on presentation of the bill of lading. The wheat arrived at Galveston, and, while still in the cars, was damaged by the great storm. Plaintiffs sued for damages, alleging that the contract required the wheat to be delivered into the elevator at Galveston, and that title had not passed at the time of the damage. Held, that the words in the letters, “delivered Galveston,” without other language explanatory, could not be construed, as matter of law, to require delivery into the elevators at Galveston, and that, the testimony as to the terms of the oral contract being contradictory, the construction of the contract in that respect was a question for the jury.</p>

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

The facts in this case are substantially as follows: The defendant in error is a corporation under the laws of New Jersey, doing a life… Held: a certified copy of the inquest must accompany the proofs.” In accordance with this requirement, the plaintiff in error attached to her proof of loss a certified copy of the proceedings 'and verdict of the coroner’s inquest, held over the body of her deceased husband in the county of Berks, where he died, in which the jury found…

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

<p>In Error to the District Court of the United States for the Eastern District of Virginia.</p> <p>This case is here upon a writ of error to the District Court of the United States for the Eastern District of Virginia. The plaintiff in error was tried upon an indictment containing six counts. The first count is under section 3258 of the Revised Statutes [U. S. Comp. St. 1901, p. 2112], and charges the plaintiff in error with setting up and having in his possession and control a still and distilling apparatus without having registered the same. The second' count is under section 3281 [page 2127], charging that the plaintiff in error had unlawfully carried on the business of a distiller without having given bond, etc. The third count is under the same section, and charges that the plaintiff in error unlawfully engaged in and carried on the business of a distiller, with intent to defraud the United States of the tax on spirits distilled by him. The fourth count is under section 3279 of the Revised Statutes [U. S. Comp. St. 1901, p. 2126], charging plaintiff in error with working in a distillery upon which no sign was placed as the law requires, and the fifth count charges that the plaintiff in error unlawfully carried away a quantity of distilled spirits from a distillery on which the required sign was not placed. The sixth count charges that the plaintiff in error unlawfully delivered raw material to a distillery on which the sign required by law was not placed. Throughout the indictment the term “distillery” is used without further description, and without stating whether it was a distillery for the production of distilled spirits from grain or from fruit or other material. The jury returned the following verdict: “We, the jury, find the prisoner, J. O. Terry, guilty as charged in the sixth count of the indictment.” Upon this verdict the court sentenced the plaintiff in error to imprisonment for the period of 60 days. Before the trial began and the introduction of testimony was had, the plaintiff in error, who appeared in his own behalf, moved the court to require the district attorney to elect upon which count in the indictment he would go to trial. This motion was overruled by the court, and to this ruling the plaintiff in error excepted. Upon the return of the verdict the plaintiff in error moved the court to set aside the said verdict and grant him a new trial, because the same was contrary to the law and the evidence. The motion was overruled by the court, to which the plaintiff in error excepted. The assignments of error are: First. The court erred in overruling the motion of the plaintiff in error to require the United States to elect upon which count in the indictment he should be tried. Second. The court erred in overruling the motion of the plaintiff in error to set aside the verdict and grant him a new trial, upon the ground that the verdict was contrary to the law and the evidence, and in entering up final judgment upon the said verdict against him. The facts as disclosed by the witnesses for the government are substantially as follows: That an illicit distillery of spirits from grain had been operated, some time in the summer of 1900, on a farm called the “Derring Farm,” near Olayville, in Powhatan county, Va.; that the farm was the property of the plaintiff in error, and that one Paul, who was in his employment, did the work; that the plaintiff in error was present on one occasion when the distillery was in operation; that he and Paul left together, carrying with them a keg of distilled spirits which had been produced in the distillery. There was found at the place by a deputy collector, who went there after the operations had ceased, the furnace where the still had been located, a worm and cooling tub, about 450 pounds of meal, a barrel of molasses, and three sacks of malt. There was also 'some other evidence tending to prove that the distillery was being operated on plaintiff in error’s farm with his knowledge and consent, and that the meal and molasses found there by the deputy collector belonged to him. The plaintiff in error was himself a witness, and denied any knowledge of the distillery, or that he had any interest in it, or that he furnished the materials, and there was some evidence to corroborate him.</p>

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

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

On the 31st of December, 1901, C. Wulbern & Co., Simons-Evans Manufacturing Company, and Drake-Innes-Green Shoe Company filed a petition against J. N. Drake, of the county of Marlborough, in the District of South Carolina, alleging that petitioners were creditors in excess of $500 of the said Drake, and that he owed debts in excess of $1,000.

<p>1. Jurisdiction op Circuit Court op Appeals — Writ op Error — Failure to Prosecute.</p> <p>A Circuit Court of Appeals does not acquire jurisdiction of a cause by writ of error unless such writ, together with the record, is returned to the next ensuing term of the court to which it is made returnable, or sufficient cause is then shown why it is not so returned.</p> <p>¶ 1. Jurisdiction of Circuit Court of Appeals, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.</p>

<p>1. Bankruptcy — Discharge — Appeal — Time of Taking — Sufficiency of Record.</p> <p>Bankr. Act 1898, § 25 [U. S. Comp. St. 1901, p. 3432], requires an appeal from a decree granting a discharge to be taken within 10 days. Circuit Court of Appeals Rule 14, subd. 3 (31 C. C. A. liv, 90 Fed. liv), provides that no case will be heard until a complete record, containing in itself all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in that court, has been filed. The record on an appeal from a bankrupt’s discharge was certified to by the clerk as a true transcript of a part of the record, proceedings, and judgment, as ordered by appellant’s counsel. The record showed the order of discharge dated July 15, 1901, and petition for an appeal, accompanied by an assignment of error, without anything to show when it was presented, or when the order granting its prayer was made or filed, or whether it was filed at all. There was a citation, dated January 25, 1902, returnable February 20, 1902, and extended by order to March 15, 1902. No appeal bond appeared to have been filed. It appeared in the discussion at bar that the discharge was granted upon oral testimony. Held, that the appeal must be dismissed, it not appearing that it had been filed in time in the District Court, nor that the transcript had been filed at the term next succeeding the taking of the appeal, nor that the court was in possession of the testimony, so as to enable it to review the case on its merits.</p>

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

<p>1. Contract of Receiver — Construction.</p> <p>Intervener made a contract with the receiver in a suit by which, in consideration of certain advances, the receiver agreed that under no circumstances would he enforce any claim for his commissions as receiver “to the detriment of” the claim of the intervener. Held, that such contract did not entitle the intervener to the allowance of his claim against commissions allowed the receiver from funds which would otherwise have been applied in payment of claims having precedence over that of the intervener.</p>

<p>1 Criminal Law — Mails—Fraudulent Use — Instructions—Burden of Proof.</p> <p>In a prosecution for fraudulent use of the mails, an instruction that if the letter addressed to C. & Co. was found by C. on his desk, on or about the day of its date, in the place in which it was the custom of the clerks of the company to place letters that had come by mail for C.’s consideration, and the letter was written by defendant on the day of its date, and related to a scheme to defraud, charged in the indictment, which had been formed by one of the defendants, the jury would be authorized to assume that the letter was placed or caused to be placed in the post office by defendants, or one of them, “unless there be other-circumstances or evidence which removes such presumption,” was erroneous, as placing on the defendant the burden of rebutting the inferences arising from the evidence of guilt.</p> <p>¶ 1. Nonmailable matter — Frauds and counterfeiting, see note to Timmons v. United States, 30 C. C. A. 86.</p>

In Equity. Suit for infringement of reissued letters patent No. 11,664 (original, No. 560,819), issued May 17, 1898, and No. 678,949, issued July 23, 1901, both to Fred E. Fay for improvements in ironing machines. On final hearing.

In Equity. Suit for infringement of letters patent No. 340,769, for baling short-cut hay or straw, granted April 27, 1886, to Emery M. Davenport. On demurrer to bill.

<p>1. Bankruptcy — Debts Released by Discharge — Fraud.</p> <p>By the provision of Bankr. Act 1898, § 17 [U. S. Comp. St. 1901, p. 3428], that “a discharge * * * shall release a bankrupt from all of „ his provable debts except such as * * * (2) are judgments in actions for frauds,” it was not intended to limit the claims exempted from release on account of fraud to those which had been reduced to judgment, but fraud in the creation of a claim is sufficient to bring the claim within the exception.</p> <p>2. Same — Powers of Court — Enjoining Proceeding in State Court.</p> <p>A court of bankruptcy is without jurisdiction to enjoin proceedings in a state court in an action on the case for fraud against the bankrupt, since such action can in no manner affect the proceedings in bankruptcy, nor could the bankrupt’s discharge constitute a defense thereto.</p>

<p>1. Jurisdiction of Federal Court — District of Suit — Waiver of Objection.</p> <p>A circuit court bas jurisdiction of a suit where the plaintiff and defendant are citizens of different states, and the requisite amount is involved, although neither is an inhabitant of the district, when the defendant has appeared and answered to the merits without objection.</p> <p>¶ 1. Waiver of right as to district in .which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.</p>

<p>In Admiralty. Suit to enforce lien for supplies furnished.</p>

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

<p>1. Death — Declaration—Allegation of Damages.</p> <p>Where, in an action for death by decedent’s administrator, the declaration alleged that decedent left, him surviving, his widow and four children, and contained the usual allegation of damages to plaintiff as administrator, it was not objectionable for failure to allege damages sustained by the next of kin; damages to the wife and children being presumed.</p> <p>2. Same — Defects Available after Verdict.</p> <p>Under Rev. St. Ill. c. 7, § 6, par. 9, providing that judgment shall not be arrested after verdict by reason of want of any allegation or aver ment on account of which omission a special demurrer could have been sustained, where no demurrer was interposed to a declaration for wrongful death, and the jury, found that decedent’s next of kin had sustained substantial damages by reason of defendant’s negligence, a judgment on the verdict could not be arrested on the ground that the declaration did not allege damage to the next of kin.</p> <p>¶ 1. See Death, vol. 15, Cent. Dig. § 69.</p>

In Bankruptcy. This is an appeal, or motion, in the nature of an appeal, to review the action of the referee refusing to set aside the sale of an asset belonging to Alvin J. Belden individually.

This is an action by the plaintiff to recover from the defendants, as trustees of the Bank of Carterville, the sum of $4,000, alleged to have been deposited to the plaintiff’s credit in said bank in June, 1895.

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

<p>1. Referee — Objections to Findings.</p> <p>Where creditors seeking to overturn finding of the referee contend that certain moneys are not the proceeds of property pledged to a lienholder, the referee having found that they are, the burden of proof is on the objectors to show the fact to be as they insist.</p> <p>2. Notes — Assignment—Presumptions.</p> <p>Where farmers’ notes were transferred by a country merchant to a cotton factor to secure advances, and it is contended that the transfer-was not legal because not in writing, and the notes are not produced in evidence or accounted for, in the absence of proof to the contrary it will be presumed that such notes were made in accordance with the custom of the trade, were either payable to bearer or to order, and were duly indorsed.</p> <p>8. Chattel Mortgage — Fraud—Withholding from Record.</p> <p>There is no evidence in this case that the mortgage to the factor was fraudulently withheld from the record. In re Josephson (D. G.) 116 Fed. 404, followed.</p> <p>4. Same — Lien.</p> <p>Where a country merchant shipped cotton to a factor holding a mortgage or other security, and contemporaneously made drafts against the proceeds of such cotton with request to the factor ■ to pay the proceeds on other accounts, thus leaving a balance of indebtedness in favor of the factor, all done in good faith and in usual course of business, held' that the mortgage or other security given as a lien must be treated as a lien protecting such balance.</p> <p>5. Referee — Report—Conclusiveness.</p> <p>Report of referee on questions of fact is presumed to be correct until the contrary is shown.</p> <p>(Syllabus by the Court.)</p>

<p>1. Telegraphs — Subsidized Railroads — Contract with Telegraph Company — Validity—Statutes—Infringement.</p> <p>Act Aug. 7, 1888 [U. S. Comp. St. 1901, p. 3583], requires all subsidized railroad companies to construct and maintain telegraph lines for governmental, commercial, and other purposes, and exercise by itself all telegraph franchises conferred on them; and section 2 [U. S. Comp. St. 1901, p. 3583] requires all such railroad companies to so operate their respective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatsoever, and to receive and exchange business with connecting lines without discrimination. Held, that a contract between the Northern Pacific Railroad Company and the Western Union Telegraph Company by which the telegraph company agreed to construct telegraph lines along the railroad’s right of way, and grant to the railroad company the exclusive use of one of two wires erected, and the right to stretch additional wires, for which the railroad company agreed to pay one-third the cost of constructing the line, and to transport the property and employés of the telegraph company in constructing and maintaining the line free of charge, was not in violation of such sections.</p> <p>2. Same — Connecting Telegraph Lines — Designation—Additional Charges-—Imposts.</p> <p>The fact that the railroad company, in receiving telegraph messages-for points beyond its lines, required the sender to designate the connecting telegraph company over whose line the message should be sent, and made a small additional charge for the words necessary to designate-such line, which charge was in accordance with the uniform practice in like cases among telegraph companies, was not an arbitrary impost or-discrimination prohibited by section 2 [U. S. Comp. St. 1901, p. 3583],</p>

<p>1. Foreign Corporation — Action against — Jurisdiction.</p> <p>A corporation which is a citizen of New York, and carries on its business through an agent in the Southern District of Georgia, may be sued there by a citizen of Georgia who resides in that district, and service may be effected on the local agent.</p> <p>2. Telegram — Failure to Deliver — Negligence.</p> <p>Where a telegraph company accepts a message relating to the sale of a valuable horse for which an offer has been made, and fails to deliver a written copy of the message to the person for whom it was intended, although his residence is in the delivery circle of the defendant, but on the contrary sends the message by telephone to the wife of a rival horse dealer, who leaves it exposed in the public office of an inn where horse dealers congregate, and it is alleged that from the publicity thus given the sale is defeated, with loss to the sender, the questions of negligence and consequent injury are for the jury.</p> <p>8. Process — Irregularity of Service — Waiver.</p> <p>Where a United States marshal is the plaintiff in an action, and service of process is effected by his deputy, and no actual injury results and no intentional wrong is charged, if the defendant appears by attorney and files a special appearance to deny jurisdiction, and also files a motion to dismiss for irregular service, and also a demurrer on one day, and four days later, without having a decision on these defenses, files a general demurrer and a full answer to the merits, helé tha.t he has waived the irregularity of process.</p> <p>4. Pleading — Withdrawal—Delay.</p> <p>Where the application of an attorney for the defendant for leave to withdraw his demurrer and answer, in order to insist on the technical irregularity of service, can only serve to delay the trial of the case on the merits, the application will be denied.</p> <p>(Syllabus by the Court.)</p> <p>¶ 1. See Corporations, vol. 12, Cent. Dig. §§ 2610, 2611, 2616.</p>

<p>In Admiralty. Suit for loss of tow, and proceeding by owner of tug for limitation of liability.</p>

<p>1. Towage — Care Required of Tug — Dangerous Locality.</p> <p>The reasonable care a tug is required to exercise in the performance-of a towage service is relative, depending upon the dangers of the service. If the locality is more than ordinarily dangerous, she is held to a proportionately higher degree of care and skill.</p> <p>3. Same — Stranding of Tow.</p> <p>Evidence considered, and JielA to show that the stranding of a schooner-on a reef while being towed through a narrow and dangerous channel was due to a want of accurate knowledge of the channel on the part of the master of the tug, and to a want of care in failing to ascertain whether a buoy used to mark the position of the ledge on which the-schooner stranded was in its proper place.</p> <p>8. Same — Contract Limiting Liability.</p> <p>The burden rests upon a tug to prove an alleged contract that a vessel was to be towed at the risk of her owners; nor will such contract, if proved, relieve the tug from liability for the consequences of a failure of those in charge to exercise reasonable care and shill in the performance of the service.</p>

<p>1. Intoxicating Liquor — License—Sales—Place—Private Carrier — Liability.</p> <p>A licensed liquor seller received orders from customers living in a place where he was not authorized to sell. He filled such orders by separating the liquor from the stock in his place of business, and delivering the packages, marked with the customers’ names, to a private carrier, to be carried to the customers, and to be delivered at their place of residence, on payment of the price. Held, that the sales were completed in the seller’s place of business, where he was licensed to sell, and hence the carrier was not liable for retailing liquor without a license.</p> <p>¶ 1. See Intoxicating Liquors, vol. 29, Cent. I</p>

<p>At Law. Action for breach of contract of life insurance.</p>

<p>1. Life Insurance — Benefit Association — Action by Member fob Breach of Contract.</p> <p>Tbe fact that a member of a fraternal insurance association, on learning that it had, without legal right, reduced the amount payable on his certificate below that called for by the contract, stopped payment of a check sent in payment of a previous assessment, does not preclude him from maintaining an action against it for breach of the contract.</p>

<p>1. Equity — Petition of Intervener to be Given Charge of Suit — Sufficiency of Grounds.</p> <p>One among a number of interveners in a suit, who was admitted as a party without conditions, and has been in the case for 17 months, without taking any part in the proceedings or offering any evidence, is not entitled, on a petition filed after the testimony has been closed, to be given full charge of the suit, as complainant, on an allegation of collusion between the original parties, of which none of the other interveners complains, and of which he offers no proof, except certain testimony in the record, taken in a previous stage of the litigation, on other issues.</p>

<p>1 Equity — Exceptions to Answer — Failure to Answer Immaterial Alle- . GATIONS.</p> <p>An exception will not lie to an answer in equity for the failure to answer and admit or deny an allegation of the bill unless sucb allegation is material.</p> <p>3. Same — Immaterial Allegations — Recording Notice oe Mining Location.</p> <p>Neither the laws of the United States nor of Nevada require the notice of location of a lode mining claim to be recorded, and hence, unless a rule of the mining district requiring such recording is shown, an averment in a bill that complainant recorded its notice of location of a claim is immaterial, and need not be answered.</p> <p>¶ 1. See Equity, vol. 19, Cent. Dig. § 428.</p> <p>3. Same — Attaching Exhibits to Bill.</p> <p>An answer in a suit in equity in a federal court is not subject to exception because it fails to answer an averment of the bill that a true and correct copy of a plat referred to therein is attached and made an exhibit, there being no rule of pleading requiring the attaching of such exhibits.</p>

<p>In Admiralty. Action for damage to cargo.</p>

This is an appeal from a final decree which dismissed the bill of the complainants, National Surety Company of New York and National Surety Company of Missouri, two corporations that sought an injunction against the State Bank of Humboldt, its attorneys, and John F. Cornell, the Auditor of Public Accounts of the State of Nebraska, to restrain them from enforcing a judgment of $7,842.40 and costs which was rendered on May 17, 1900, in the district court of Richardson county,…

Thos. O. Jones, E. H. Eaper, W. S. Cartwright, and John IT. Engle were partners under the firm name of Jones, Eaper & Co., doing business as merchants in Elizabeth City, Pasquotank county, in the Eastern District of North Carolina. On the 28th day of. March, 1902, the said firm filed a voluntary petition in bankruptcy, and were on the same day adjudged bankrupt, within the true intent and meaning of the acts of Congress relating to bankruptcy.

The complaint in this case is against illegal and discriminating taxation of the property of the Kansas Oity, Ft. Scott & Memphis Railroad Company, at Memphis, Tenn., the collection of which is sought to be enjoined. By the law of Tennessee (chapter 5, Acts 1897) a special method of taxing railroad property in that state is provided. Three commissioners are constituted ex officio the state tax assessors of railroads.

<p>1." Corporations — Authority of Agent — Employment of Broker to Sell Vessel.</p> <p>Authority given by a corporation to its superintendent to sell a steamship may be presumed by those dealing with him with reference to the business to include authority to employ all usual and suitable means in making the sale, and where he employed a broker, who made the sale, and to whom he agreed to pay the usual commission, and the corporation subsequently ratified the sale, and received its proceeds, the questions whether the means employed were usual and suitable, and were within his authority, under the facts and circumstances of the case are for the jury.</p> <p>8. Same — Action by Broker for Commissions — Question for Jury.</p> <p>Plaintiff, a steamboat broker in New York, was authorized by the superintendent of defendant corporation having charge of its New York office to sell a steamer owned by defendant for $150,000, subject to plaintiff’s commission of 5 per cent., and plaintiff was the efficient agent in procuring the sale of the vessel at that price to the United States. The general manager of defendant, who was also a director, had previously authorized the superintendent to sell the vessel at the same price, and subject to the same commission, to another party, and on being informed that he had made the same offer for a sale to the government he acquiesced. The sale was confirmed by defendant’s directors at a meeting in which the general manager took part. Held, that such facts were sufficient to warrant the submission to the jury of the question whether the superintendent was authorized to contract for the sale of the vessel through the agency of plaintiff, and subject to the payment of his commission.</p> <p>8. Same — Ratification of Sale by Agent — Effect.</p> <p>Where the general manager of a steamship company, who was also a director, authorized its superintendent, in charge of one of its offices, to sell a vessel owned by the company at a stated price, less a broker’s commission, assuming that the corporation would ratify his acts, and the superintendent made the sale through a broker, and it was subsequently ratified at a meeting of the directors of the company, the manager being present and participating as a director, such ratification must be presumed to have been made with knowledge by the corporation of the facts known at the time to the manager, and its effect was equivalent to an original authority to the superintendent to contract for the payment of the broker’s commission. Per Wallace, Circuit Judge, concurring.</p>

<p>1. Copyright — Infringement—Right of Purchaser of Unbound Sheets to Bind and Resell.</p> <p>One who has purchased unbound copyrighted volumes from the owner of the copyright or his licensee has the right, so far as the copyright statute is concerned, to bind and resell the same.</p> <p>2. Same — Effect of Copyright of New Edition.</p> <p>The copyrighting of the volumes of a particular edition of an author’s works, which had been previously published some with and some without copyright, protects only what is original in the new edition, and does not enlarge the rights of the owner of the copyright as to any matter previously published.</p> <p>3. Same — Right of Licensee to Sell Unbound Sheets.</p> <p>There is nothing in the copyright law which prohibits a licensee of the owner of a copyright for books from selling the same in unbound sheets, nor can the rights of a purchaser of such sheets with respect to binding and reselling the same be affected by any private agreement between the licensee and owner.</p> <p>4. Trade-Mark — Use Necessary to Give Proprietary Right.</p> <p>Conceding that an author might protect his writings by a trade-mark, the mere fact that an ornamental device was stamped on a single edition of his works published in this country without any notice that it was intended as a trade-mark, and that a similar device was printed some years before on a few volumes of his works published in India, in connection with the publisher’s name, while other editions printed in this country and in England were without it, does not entitle it to protection as a trade-mark.</p> <p>5. Unfair Competition — Evidence to Establish.</p> <p>Defendants purchased copyrighted sheets of plaintiff’s works from licensed publishers, and bound them into sets,. which they sold. There was no attempt to imitate any other edition in style or -appearance, nor to deceive purchasers, the only similarity being in the use of a single device on the cover, similar to one used on another edition; nor was it shown that any purchaser was actually deceived. Held, that such facts did not entitle plaintiff to damages for unfair, competition.</p>

<p>In l£rror to the District Court of the United States for the District of Connecticut.</p> <p>This cause comes here upon writ of error to review a judgment accepting and confirming the report of Messrs. Tweedy, Mervin, and Bristol, a committee appointed to ascertain the value of land of respondent, and adjudging that the petitioner, the United States, pay into court for the use of said respondent, Judson, the sum of $15,525 as the full value of the property and just damages for the taking thereof, and that upon such payment the land should become the property of the United States. The owner of the land is plaintiff in error. The facts are set forth in the opinion.</p>

<p>1. Partnership — Liability of Partners — Failure to Give Notice of Dissolution.</p> <p>A firm of attorneys had done business for plaintiff’s testatrix for a number of years, one of the members making investments for her and looking after the securities taken. The firm dissolved, but no notice of the fact was given to the client, and the members continued to occupy the same office, and to use the firm name upon their signs, letter heads, and.in suits. Such member of the old firm foreclosed a mortgage taken by him for the client, using the firm name with the consent of the others. He bid in the property himself, making no cash payment, but the firm receipted for such payment on the records. He advised the client of his purchase, but not that the money was not paid, and in answer to her request to reinvest the money wrote her that he could probably do so on the same property. He subsequently remitted her the interest regularly, until her death, after which he became insolvent, never having made any reinvestment in her name. Held, that if decedent employed him in his representative capacity as a member of the firm the other members were jointly liable with him for the amount of the bid, to the extent of the mortgage, and that whether she did so deal with him was a question for the jury.</p> <p>2. Limitations — Accrual of Cause of Action — Demand.</p> <p>The client having authorized the reinvestment of the proceeds of the mortgage, a cause of action in her favor to recover the same did not accrue, nor the statute of limitations commence to run against her, until demand, provided such demand was made within a reasonable time, and she would not be required to make it so long as she was led to believe that the money had in fact been reinvested, nor could the defendants allege their own wrong by setting up a misappropriation of the money to give a right of action without demand, which would entitle them to the defense of limitation.</p> <p>3. Same — Action Against Attorneys — New York Statute.</p> <p>Code Civ. Proe. N. Y. § 410, as construed by the courts of the state, operates to shield clients from the effect of thé six-years statute of limitations in actions growing out of the receipt and detention of money by attorneys, when the client does not have knowledge of the facts which entitle him to dispense with a demand, and to set the statute in operation only from the time he acquires such knowledge.</p>

<p>1. Contract — Agency to Execute — Charter of Vessel.</p> <p>Defendants were coal dealers having an office in New York, which was in charge of a clerk, who was authorized to charter vessels to be used in their business. After some conversation with the clerk, plaintiff’s broker called on him at defendants’ office, and presented a memorandum of charter for a vessel owned by plaintiff, purporting on its face to be made with defendants, which the clerk signed with his own name. Held, that under such circumstances, the authority of the clerk to execute charter for defendants being admitted, unless he made known to the broker or to plaintiff that he was not acting for defendants, they were bound by the charter, and liable for a failure to carry it out.</p> <p>2. Trial — Order of Proof.</p> <p>Where a complaint alleged that a certain person was defendants’ agent, and that defendants, through him, entered into the contract sued on, both of which allegations were denied, it is immaterial which one is proved first, and the admission of evidence of the agent’s authority before the introduction of the contract was not error.</p> <p>8. Appeal — Review—Harmless Error.</p> <p>. Where there was no dispute as to the terms of the written contract sued on as proved, the admission of evidence of prior negotiations is harmless error.</p> <p>4. Same.</p> <p>The permitting of leading questions is largely discretionary, and they will not be held ground for reversal, where it is clear that they were not prejudicial.</p>

<p>^Appeal from the District Court of the United States for the District of South Carolina, in Bankruptcy.</p>

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

. This cause, comes here upon appeal from a decree holding the Maggie Ellen, a schooner anchored in a narrow fairway, solely in fault for a collision at night with the. passenger steamboat Shinnecock, in Narragansett Bay.

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

<p>1. Criminal Law — Instructions—Intent.</p> <p>A charge in a criminal ease, in which intent was an essential element of the offense charged, that such intent might be presumed from the doing of the wrongful or illegal act, and that such presumption cast the burden on the defendant to overcome it by evidence sufficiently strong to satisfy the jury beyond a reasonable doubt that there was no such guilty intent, is erroneous.</p> <p>2. Same — Insanity.</p> <p>An instruction in a criminal case is erroneous which places on the defendant the burden of proving the defense of insanity by a preponderance of the evidence, it being sufficient to prevent a conviction if, upon the whole evidence, the jury have a reasonable doubt of defendant’s mental competency to distinguish between right and wrong, and to understand the nature of the act charged at the time of its commission.</p> <p>¶ 2. See Criminal Law, vol. 14, Cent Dig. § 1286.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York, entered June 13, 1902. The decree provides that a fund of $24,063, paid into the registry of the court April 19, 1897, be divided (after paying costs) equally between Emma C. Wooster and Charles H. Trowbridge, as trustee.

This cause comes here upon appeal from an order of the Circuit Court, Western District of New York, granting an injunction pendente lite against infringement of United States letters patent No. 337,299, granted to Charles F. Brush, March 2, 1886, upon an application filed June 13, 1881 for “secondary battery.”

<p>In Equity. Suit for infringement of letters patent No. 383,258, for a machine for plucking furs, granted to John W. Sutton, May 22, 1888. On final hearing. See (C. C. A.) 118 Fed. 838.</p>

In Equity. Suit for infringement of letters patent No. 621,974, for a method of and means for packing biscuits, crackers, or the like, granted to Frank M. Peters March 28, 1899. On final hearing.

<p>1. Federal Courts — State Practice — Attachment—Rule to Vacate.</p> <p>Where a suit in equity was Degun in a state court by foreign attachment, and the case was removed to the Circuit Court, the Circuit Court had jurisdiction of a rule on plaintiff to show cause of action, and why the attachment should not be dissolved on the pleadings; such rule being in accordance with the prevailing state practice.</p> <p>'•2. Same — Patents—Accounting—Actions—Joinder of Parties.</p> <p>Where the deceased owner of a third interest in a patent prior to his death had made a general assignment for the benefit of creditors, a bill to compel the owner of another third interest to account for profits could not be maintained by deceased’s assignee for the benefit of creditors in conjunction with deceased’s executrix as co-complainant, defendants' liability to plaintiffs, if any, being several, and not joint.</p> <p>•t. Same — Oause of Action — Statement.</p> <p>Where a bill for an accounting of profits derived from a patent depénded on an agreement between plaintiffs’ decedent and defendant, and the bill failed to allege whether the agreement was verbal or in writing, its consideration, how long it was to be in operation, and whether defendant was to have any compensation for what she did in organizing concerns to operate the patent, or as to expenses incurred, it was insufficient.</p>

<p>1. Partition — Equitable Jurisdiction.</p> <p>The power of partition in equity court discussed.</p> <p>2. Same.</p> <p>This power will never be exercised where the title Is denied or suspicious, until the party seeking a partition has had an opportunity to try his title at law.</p> <p>8. Same — Adverse Possession.</p> <p>A disseisin or adverse possession destroys the common possession, and bars a suit for partition so long as the ouster continues.</p> <p>4. Quieting Titles — Parties.</p> <p>Only those who have a clear legal and equitable title to land connected with possession have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title, except where this rule is dispensed with by statute.</p> <p>5. Same — Accounting.</p> <p>An alleged necessity for an accounting in such cases does not confer jurisdiction in equity.</p> <p>6. Partition — Demurrer.</p> <p>In taking order sustaining a demurrer to a bill for partition, where the title is in good faith placed in issue, the bill will be retained for a reasonable time in order that partition may be effected, in case complainants should prevail at law in the assertion of their legal title.</p> <p>(Syllabus by the Court.)</p> <p>¶ 3. See Partition, vol. 38, Cent. Dig. § 64.</p>

<p>1. Complaint — Separate Statement op Causes oe Action — Nevada Statute.</p> <p>Under Out. Comp. Laws Nev. § 3159, which provides that, where two or more causes of action are united, they must be separately stated in the complaint, a complaint is demurrable which alleges in a single count an unlawful detention of real property, destruction and unlawful detention of personal property, an assault and injury to the person, and a threatened expulsion of plaintiff from a town, and prays damages in a lump sum, without alleging the amount of damages sustained by reason of either one of the unlawful acts charged.</p> <p>2. Same — Bill op Particulars.</p> <p>The provision of Cut. Comp. Laws Nev. § 3151, that, In an action upon several accounts, it shall not be necessary to set out the items of such accounts, but that a bill of particulars may be demanded, has no application to a complaint setting up a number of separate causes of action in tort</p> <p>¶ 1. See Pleading, vol. 39, Cent. Dig. §§ 113, 434.</p>

<p>1. Bankruptcy — Objections to Discharge — Verification.</p> <p>A specification of objections to the discharge of a bankrupt is not a pleading, within the meaning of Bankr. Act 1898, § 18c [U. S. Comp. St. 1901, p. 3429], requiring all pleadings setting up matters of fact to be verified, and such specification need not be verified.</p>

<p>1. Corporation — Process—Service—Denial.</p> <p>Where the person on whom process was served, as the secretary and general manager of a corporation defendant deposed that he was not “at the time” stated in the return secretary, or manager, or officer, or director of the corporation, and that he had no connection therewith except as stockholder, the fact that he failed to object that he was not secretary or manager .“at or after the time” when the process was served did not justify the inference that he was such officer.</p>

Action to recover damages for causing the plaintiff to be arrested by a police officer upon an accusation of theft, which was not afterwards prosecuted, the complaint alleging that the defendant’s agent acted maliciously in causing his arrest, without any cause or warrant whatsoever. On the trial a verdict for the defendant was rendered, pursuant to a peremptory instruction of the court. Heard on motion for a new trial. Motion denied.

<p>1. Removal of Causes — Diverse Citizenship — Fraudulent Joinder of Defendant.</p> <p>One of two defendants against whom action is brought as employers of plaintiff’s intestate for his death may have the action removed on the ground of diverse citizenship, notwithstanding the other defendant is a citizen of the same state as plaintiff, the verified petition for removal alleging that deceased was never in the employ of the other defendant, and that it was fraudulently joined as a defendant solely to defeat the right of removal, and accompanying this being an affidavit of the other defendant that deceased was never in its employ, and that it had no connection with the accident, and plaintiff neither traversing the petition nor offering evidence in denial of its averments.</p> <p>¶ 1. Diverse citizenship ground of federal jurisdiction, see notes to Shipp, v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p>

<p>1. Contracts — Evidence as to Identity of Party.</p> <p>Where there is a direct conflict in the oral testimony of the parties who made a contract with respect to the party in whose behalf it was made, the correspondence between them both before and after it was made becomes of paramount importance, and, if pertinent, is controlling.</p> <p>2. Same.</p> <p>Evidence considered, and held to show that a license under a patent was granted to a partnership, and not to a corporation having the same •name, subsequently organized, so that the corporation could not maintain a suit thereon.</p>

<p>1. Bankruptcy — Debts Entitled to Priority — Wages oe Clerks During Vacation.</p> <p>“Wages due to workmen, clerks or servants which have been earned within three months” given priority by Bankr. Act, § 64b (4) [XT. S. Comp. St. 1901, p. 3447], means wages which are owing at the time of the bankruptcy, although they may not then be “due” in the sense of being immediately payable, and which have accrued within three months. It was not the purpose of this clause to make a distinction between wages due which have been earned and wages due which have not been earned, or to determine the wage earner’s right by an, inquiry into the amount of work done during the period of employment. The purpose is merely to limit priority to wages which have accrued within three months. The fact that during the three months clerks of a bankrupt were given vacations “with pay,” such pay to be withheld, however, until the.end of the year, during which time the employer became bankrupt, does not deprive the clerks of the right to prove their claims for such pay nor to priority.</p> <p>2. Same — Construction of Contract.</p> <p>A notice was posted by an employer that its clerks would be entitled to vacations with pay according to length of service, but that vacation payments would be withheld until the following January, and further stating that “it is understood and agreed that employes taking vacations agree that if for any reason employment is severed, voluntarily or otherwise, before January 1st, the vacation pay will be forfeited.” Prior to the succeeding January the employer became bankrupt. Held, that the condition subsequent was solely for the benefit of the employer, its object being to secure a continuance of service from the clerks; that such object having been defeated by the bankruptcy, the court would not enforce the forfeiture and deprive the clerks of pay to which they were equitably entitled.</p>

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

<p>At Law. On motion to strike paragraph from complaint.</p>

In Bankruptcy. On questions arising before the referee at the meeting of creditors for election of a trustee "certified for the opinion of the court: (1) Whether an attorney of the court, representing claims duly filed, is entitled to vote thereupon without formal powers, of attorney; (2) whether disapproval of the election of J. A. Barling as trustee was authorized by the fact that he was stockholder of a corporation creditor having a claim filed “amounting to nearly half…

<p>1. Executors — Suit against in Another State — Jurisdiction.</p> <p>A suit cannot be maintained against foreign executors in Illinois, In either a state or federal court, where there is no property of the testator’s estate within the jurisdiction.</p> <p>2. Jurisdiction of Federad Courts — District of Suit.</p> <p>A nonresident defendant in an action begun by attachment and the-garnishment of money due him released such garnishment by the giving of a bond as provided by statute. He died pending the action, which could not be revived against his executors because of their nonresidence. Held, that a suit in equity by plaintiff against such executors to establish his right, to enforce the bond was not one to enforce a lien on property, which could be maintained in a federal court in a district of which neither-.plaintiff nor defendants were inhabitants, against defendants’ objection.</p> <p>¶ 1. See Executors and Administrators, vol. 22, Cent. Dig. § 2344.</p>

<p>1. Public Lands — Action fob Unlawful Cutting of Timber — Survival.</p> <p>The United States may maintain an action against an executor to recover the value of timber alleged to have been unlawfully cut and removed from public lands by his testator, the trespass being one from which the estate received a benefit.</p> <p>2. Same — Effect of State Statutes.</p> <p>The right to maintain such an action is not limited or affected by a state statute requiring all claims against the estate of a decedent to be first presented to the executor for allowance.</p>

<p>L Monopolies — Combination in Restraint of Interstate Commerce — Construction of Anti-Trust Law.</p> <p>The generality of the language used in the anti-trust act of 1890 (Act July 2, 1890, 26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3200]), declaring illegal “every contract, combination or conspiracy in restraint of trade or commerce among the several states or with foreign nations,” indicates the purpose of Congress to include in the prohibition every combination which directly and substantially restricts interstate commerce, whatever its form.</p> <p>2. Same — Application of Act to Interstate Carriers.</p> <p>The anti-trust act (Act July 2, 1890, 26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3200]) applies to interstate carriers of freight and passengers, and any contract or combination which directly and substantially restricts the right of such a carrier to fix its own rates, independently of its natural competitors, places a direct restraint upon interstate commerce, in that it tends to prevent competition, and is in violation of the act, whether the rates actually fixed be reasonable or unreasonable.</p> <p>8. Same — Corporation to Acquire Stock of Competing Railroads — Legality.</p> <p>The real control of a corporation is in its stockholders, who have the power to determine all important corporate acts and policies, and any contract or combination by which a majority of the stock of two railroad companies owning and operating parallel and competing interstate lines of road is transferred to. a corporation organized for the purpose of holding and voting the same, and receiving the dividends thereon, to be divided pro rata among the stockholders of the two companies so transferring their stock, directly and substantially restricts interstate trade and commerce, and is in violation of the anti-trust act (Act July 2, 1890, 26 Stat. 209, c. 647 [U. S. Comp. St. 1801, p. 3200]), since it destroys any motive for competition between the two roads; and it is immaterial that each company has its own board of directors, which nominally directs its operations and fixes its rates.</p> <p>4. Corporations — Powers—New Jersey Statutes.</p> <p>The language of the New Jersey enabling act (Laws 1899, p. 473), authorizing the organization of corporations “for any lawful purpose,” imposes a limitation upon the powers of any corporation organized thereunder, however broad may be the terms of its articles of incorporation.</p> <p>5. Same — Interstate Commerce.</p> <p>A state cannot invest a corporation organized under its laws with the power to do acts in the corporate name which would operate to restrain interstate commerce.</p> <p>6. Constitutional Law — Right of Private Contract — Limitation by Interstate Commerce Clause.</p> <p>The constitutional guaranty of liberty to the individual to enter into private contracts is limited to some extent by the commerce clause of the Constitution, and Congress may, in the exercise of the power conferred by such clause, prohibit private contracts which operate to directly and substantially restrain interstate commerce.</p> <p>7. Monopolies — Combination in Restraint of Interstate Commerce — Suit to Enjoin.</p> <p>The fact that the purpose of an illegal combination between stockholders of two railroad companies operating parallel and competing interstate lines, to secure unity of interest and control of such companies, and to prevent competition, has been accomplished by the formation of a corporation which has acquired the ownership of a majority of the stock of each of the companies, cannot be urged to defeat a suit by the United States to restrain the exercise of the power so illegally acquired by the corporation through such combination, as imposing a restraint upon interstate commerce in violation of the anti-trust law (Act July 2, 1890, 26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3200]).</p> <p>8. Same — Defenses—Questions of Public Policy.</p> <p>Where the effect of a combination is to directly prevent competition between two parallel and naturally competing lines of railroad engaged in interstate business, it is in restraint of interstate commerce, and a violation of the anti-trust act (Act July 2, 1890, 26 Stat.' 209, c. 647 [TJ. S. Comp. St. 1901, p. 3200]), and the court, in a suit to enjoin it as such, cannot consider the question whether the combination may not be of greater benefit to the public than competition would be; that being a question of public policy, tó be determined by Congress.</p>

<p>1. Bankruptcy — Homestead—Business Block — Occupation as Residence.</p> <p>A bankrupt, six days before his failure, and in contemplation of bankruptcy, moved his family from a rented house formerly occupied by them into a room in his store building, formerly rented as a billiard hall. The building was primarily intended for business purposes, and not for a home, and there had been no previous attempt to make it a homestead. Held, that the building was a homestead under Ark. Const, art. 9, §§ 3, 5, providing for a homestead owned and occupied as a residence and selected by the owner, and for its exemption from execution.</p>

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

<p>1. Bankruptcy — Petition to Adjudge a Person a Bankrupt — Sufficiency— Amendment.</p> <p>The petition to adjudge an involuntary bankrupt, if not sufficient because not alleging that he is not a wage earner or a person engaged chiefly in farming or the tillage of the soil, though containing averments consistent with his being a merchant and not chiefly engaged in tilling the soil, may be cured by amendment.</p> <p>2. Same — Second Petition to Review.</p> <p>A petition to revise proceedings in bankruptcy on the ground of the insufficiency of the petition of creditors will be denied, the same matter having been involved in former proceedings by the same petitioner, and therein fully disposed of.</p>

On October 3, 1892, John Mahin published in the Evening Journal, a newspaper of which he was the editor and publisher, at Muscatine, in the state of Iowa, an article which charged that Tyndale Palmer had robbed his employers; that he was an embezzler to the tune of $440,000; that he, in company with one Freitas, had sold patents of his employer for $510,000, had reported the sale of them for $80,000, and had retained $10,000 of this amount as his salary, and all the…

This cause comes here upon appeal from a decree in fávor of libel-ant against the steamship Slingsby for personal injuries sustained while engaged in discharging cargo. The cause of the injury was alleged to be the negligent starting of the winch without orders, while the libelant was assisting in tightening up the rigging and tackle used in connection with the hoisting derrick. The facts relevant to the assignments of error are sufficiently set forth in the opinion.

In this ease the plaintiff, Mark Putman, for cause of action alleges: That on the 29th day of December, 1899, he was in the employment of the Texas' & Pacific Railway Company as a brakeman on a freight train. That it was his duty, on the approach of the train to a station where the train was to go on a side track, to leap from the train as soon as it slacks or stops, and open the switch, so as to enable the train to enter the side track.

This is a suit in equity, brought by Robert Hecht, the appellee,, against the appellants and J. R. Fried. The bill appears in the record, and contains 21 sections, embracing 14 closely printed pages. It is not deemed necessary to give a summary of the contents of the bill, as the averments, so far as material to the decision to be made,, will appear in the opinion.

The American Press Association, a citizen of the state of New York, is engaged in the business of securing original and selected matter for publication», which it prepares in the form of electrotype plates, and leases for publication to its subscribers for an agreed consideration.

<p>Appeal from the Circuit Court of the United States for the District of Connecticut,</p>

<p>1. Shipping — Who are Passengers — Seamen Returned under Contract.</p> <p>Citizens of the United States, who shipped as horsemen on an English, ship to care for horses and mules during a voyage from New Orleans to-South Africa under a contract that they should be returned free to an American port, subjected themselves to the English law, and during the-time of their service were to be considered and treated as.British subjects; but their term of service ended at the end of the voyage in South Africa, the passage home being a part of their compensation, and on the voyage-home they were passengers, and their rights as such were governed by the laws of the United States.</p> <p>2. Same — Carriage op Passengers — Liability for Furnishing Improper Food..</p> <p>Act Aug. 2, 1882, 22 Stat. 186 [U. S. Comp. St. 1901, p. 2931], to regulate the carriage of passengers by sea from a foreign port to a port of the United States, provides in section 4 that if any such passengers shall at any time during the voyage be put on short allowance for food and water, except in cases of necessity, the master shall pay each passenger $3 for each and every day of such short allowance. Held, that the furnishing to passengers, without necessity, of bad or improper food, which was-unfit to eat, was equivalent to putting them on short allowance, and entitled them to recover as damages an amount equal to that fixed by the statute.</p>

<p>1. Death by Wrongful Act — Contributory Negligence — Proximate Cause.</p> <p>In an action for death by wrongful act, an instruction that the defense of contributory negligence will not avail if defendant, by the exercise of reasonable care, could have avoided the accident, correctly states the law, and is not objectionable as being too broad or misleading.</p> <p>¶ 1. See Negligence, vol. 37, Cent. Dig. § 115.</p>

Joseph New was adjudged a voluntary bankrupt on his petition filed August 8, 1901. Within four months of the filing of the petition he was indebted to the Mahoning National Bank of Youngstown, Ohio, on two series of promissory notes, in the aggregate sum of §9,000.

<p>1. Insurance Companies — Suit by Assignee — Invalidity of Assignment under Missouri Statute.</p> <p>Under the statutes of Missouri (Rev. St. 1899, § 8099 et seq.), which place mutual insurance companies organized under Act March 21, 1895, under the supervision of the State Superintendent of Insurance, who is expressly authorized to institute proceedings for their dissolution, and the decisions of the courts of the state that companies so placed cannot make a valid general assignment of their property in case of insolvency, an assignee of such a company has no title which will support a suit in a federal court to recover assets claimed to have been wrongfully diverted by its officers.</p>

The Central Coal & Coke Company, a corporation, brought an action in the United States Court of the Indian Territory for the Central District against Good & Co., another corporation, to recover the sum of $9,024.42 and interest for lumber and piling which it had furnished to the defendant.

This was an action by Helen A. Sullivan, as the administratrix of the estate of John T. Sullivan, deceased, against the Florida Central & Peninsular Railroad Company. The plaintiff was a citizen of Dallas county, Ala., of which state and county John T. Sullivan, deceased, was a citizen up to the time of his death. The action was brought in the United States Circuit Court for the Southern District of Florida.

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

Division of the Northern District of Illinois. From a judgment in favor of Mr. Leonard for the full amount of a fire-insurance policy issued to him by the Orient Company, entered as the result of a second trial, this writ is prosecuted. Mr. Leonard, as lessee, occupied a six-story brick warehouse on Lake street, in Chicago. In it he had a stock of seeds, the insured property, Next west of the warehouse was a frame blacksmith shop, 20 feet wide.

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

<p>1. Bankruptcy — Composition—Acceptance—Appeal—Parties .</p> <p>On appeal by a creditor of a bankrupt from an order approving a com - position under which a majority of the creditors have received the amounts to which they were entitled, the assenting creditors are necessary parties.</p>

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

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

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

<p>1. Patents — Invention—Brooms.</p> <p>In making a sheet metal broom case to hold the brush together at the upper end where it fastens to the handle, there was no patentable invention involved in making it flaring, to conform to the shape of the broom, instead of straight up and down, nor in making it of a single piece of metal with the ends fastened together at one side of the broom, instead of in two pieces fastened together at either side.</p> <p>2. Same — Abandonment op Application — Second Application por Same Invention.</p> <p>The failure of an applicant for a patent to take further action for nearly three years after his application was finally rejected, and notice thereof received, operated as an abandonment under Rev. St. § 4894 [U. S. Comp. St. 1901, p. 3384], unless the application was reinstated for unavoidable delay; and a new application thereafter filed cannot be treated as a continuation of the old proceedings, for the purpose of avoiding the effect of prior use.</p> <p>3. Same — Unavoidable Delay in Prosecution — Negligence op Attorney.</p> <p>The negligence of an attorney which works the abandonment of an application for a patent under the statute does not constitute unavoidable delay which will avoid the effect of such abandonment as to the applicant.</p> <p>4. Same — Invention—Brooms.</p> <p>The Lay patent, No. 652,542, for a broom case, is void for lack of invention, and for prior sale and use of the article.</p>

<p>1. Patents — Assignment—Action against Subsequent Assignee — Complaint.</p> <p>Where a complaint alleged an assignment of a patent by intestate to defendant’s assignor in consideration of such assignor’s agreement to pay intestate in each year, while the patent should remain in force, a certain annuity, and that defendant had succeeded to all the property of its assignor, including the patent, and had assuméd all its obligations, which it fulfilled during intestate’s life, but had since refused, but failed to allege any contract between intestate and defendant, it did not state a cause of action at law.</p> <p>2. Same — Bill in Equity.</p> <p>Such allegations were sufficient to entitle plaintiff to a decree in equity for the payment by defendant of the amount due.</p> <p>3. Same — Bill .in Equity — Demurrer—Statutes—Construction.</p> <p>Rev. St. § 954 [U. S. Comp. St. 1901, p. 696], providing that no declaration, etc., in civil causes in any court of the United States shall be quashed for any defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof, and such court shall amend every such defect and want of form other than those which the party demurring so expresses, is not confined to civil cases at law, but extends to and includes suits in equity.</p> <p>4. Same.</p> <p>Under such section, where a complaint in an action removed from a state court was demurred to for want of facts, it could not be dismissed, because, when treated as a bill in equity, it did not contain the address, statement of citizenship, or proper prayer for relief, or because it was erroneously placed on the law docket; such objections being matters of form only.</p>

<p>1. Collision — Steam Vessel and Barge in Tow — Want of Lookout and-Failure to Observe Towing Lights.</p> <p>A steam lighter which was navigating New York Bay in the night without a lookout, and which attempted to pass close under the stern of a tug, although the latter carried lights indicating a tow astern, and in so doing came into collision .with a barge in tow of the tug, helé in fault for such collision.</p> <p>2. Same — Contributory Fault — Absence of Lights on Tow Required by Pilot Rules.</p> <p>When a barge injured in a collision in the night in New York Bay while in tow of a tug was not carrying the lights on the bow and stern required by rule 11 of the pilot rules, the burden rests upon her and the tug to prove that such violation of the rule did not contribute to the collision.</p>

<p>1. Trust — Construction ou Instrument Creating — Distribution or Fund.</p> <p>A railroad company having acquired the property of another company, which was subject to three mortgages and liens, executed an instrument of trust by which it created a sinking fund in the hands of a trustee “for the protection, benefit, and further security” of the three liens, naming them in the order of their priority. The instrument then provided that the fund should be applied to the payment of such debts “according to the principles of equity, to the end that all of said lien or mortgage creditors * * ■ * may be entitled thereto in due order.” Held, that such provision required the application of the fund to the several liens in order of priority which the beneficiaries occupied in the original security.</p>

<p>In Bankruptcy. On certificate from C. A. Van Wormer, referee.</p>

<p>1. Maritime Lien — Vessel in Dry Dock.</p> <p>Neither a dry dock, fitted into piers, to which it is held by cleats, so that it has only a vertical motion, nor a steamer therein for repairs, is a vessel in navigable waters, so as to give a maritime lien for a tort thereon.</p>

<p>3. Bankruptcy — Attorney for Bankrupt — Fees—Allowance.</p> <p>Under Bankr. Act, § 64b [U. S. Comp. St. 1901, p. 3447], providing that one reasonable attorney’s fee for professional services rendered to the bankrupt in involuntary cases, as the court may allow, shall have priority, and be paid in full from the bankrupt’s estate, the court may allow an attorney for the bankrupt in an involuntary proceeding for services actually rendered in good faith for the real purpose of impartially administering the estate.</p> <p>2. Same — Necessity—Good Faith — Proof.</p> <p>Where, in a proceeding for the allowance of attorney’s fees to involuntary bankrupts for representing them at their examination before the referee, and for being present and acting as counsel for them through such examination, there was no proof that the employment of counsel was reasonably necessary, and that the services were actually rendered in good faith to promote the purposes of the bankruptcy act, the claim should be disallowed.</p>

<p>1. Collision — Steamer and Schooner Meeting in Fog — Failure to Keep Proper Lookout.</p> <p>A steamer and a schooner came into collision 120 miles southeast of Sandy Hook Lightship, in a dense fog, on meeting and nearly parallel courses. The testimony from each vessel showed that she was going at moderate speed, was properly manned, and that fog signals were regularly sounded; but neither vessel heard the signals from the other until immediately before they came in sight of each other, when 400 feet apart, and when it was too late to avoid the collision. Held, upon such evidence, that (1) each vessel duly sounded fog signals; (2) each vessel was running at proper speed; (3) neither vessel kept a proper lookout; that such fault on the part of the schooner did not contribute to the collision, because it would have been her duty to keep her course under the circumstances, if she had heard the signals, but that the steamer must be held solely liable as the burdened vessel, and because she might by the exercise of due care have avoided the collision.</p>

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

<p>1. Collision — Vessel Backing from Pier — Negligence.</p> <p>When a lighter was backing to get out from her pier, her engine failed to start forward in obedience to the lever, and she backed into another vessel lying at an adjoining pier. Repairs were being made on the piers, and there was more or less driftwood in the water, and it was claimed that her propeller was fouled by a log. The steward stood at the stern, but was not keeping any lookout for obstructions. Beld, that she was in fault for failing to exercise greater care in backing, in view of the known danger of fouling, under the circumstances.</p>

<p>1. Shipping — Liability op Ship for Injury of Stevedore — Failure to. Give Warning of Defects.</p> <p>Where it was known by the officers of a ship that a hatch covering was so constructed, or was in such condition, that if the hatch was opened in the usual way it would fall, the failure to give warning of the danger to stevedores engaged in loading the vessel was negligence, which rendered the ship liable to an employé of the stevedores for an injury resulting from the falling of the hatch with him into the hold while he was removing the cover in the customary way.</p>

<p>1. Libel — Punitive Damages.</p> <p>Defendant published a highly sensational article, occupying several, columns of its newspaper, prefaced by startling headlines, charging plaintiff with conspiracy to defraud insurance companies by securing policies-for the benefit of the conspirators on the lives of aged and decrepit persons, and, when desirable, to hasten the death of insured, and stated that such conspirators were beneficiaries in 100 policies, of which 60 had been, canceled by the insurance companies; that 30 of the persons insured had died of disease, 12 by poison, and that the lives of 15 others had been-attempted. In its answer defendant alleged that such conspiracy existed in part, and that plaintiff and the other conspirators falsely claimed to be creditors of the individuals insured, etc., and attempted, but failed, to-establish such defense. Held, that plaintiff was entitled to recover exemplary damages.</p> <p>2. Same — Excessiveness.</p> <p>A verdict in favor of plaintiff for $36,000 was excessive, and should be-reduced to $20,000.</p>

<p>1. Copyrights — Pictures—' ‘Prints. ”</p> <p>Rev. St. § 4956 [U. S. Comp. St. 1901, p. 3407], authorizes the copyright of any “book, chart, * * * cut, print, * * * or design, for a work of the fine arts, provided that in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited, shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States.” Held, that pictures printed in successive colors from metal plates, from which part of the metal has been cut so as to leave portions thereof in relief, were entitled to copyright as “prints,” within the general enumeration of the section, and were not within the proviso because ,not “printed from drawings on stone.”</p> <p>2. Same — Copyright Notice.</p> <p>A copyright notice reciting, “Copyright, 1902, Published by Hills & Co., Ltd., London, England,” was sufficient.</p> <p>¶ 1. Matter subject to copyright, see note to Amberg File & Index Co. v. Shea Smith & Co., 27 C. C. A. 248.</p>

<p>1. Extradition — Embezzlement—Treaties.</p> <p>Where defendant subscribed for one share of the stock of a French corporation, and agreed with the other subscribers to devote his entire time to the management of the corporation’s affairs, and in consideration of his services receive 40 per cent, of the profits, he was a person “hired or salaried” by the corporation, within French extradition treaty, authorizing extradition for embezzlement by any person or persons, hired or salaried, to the detriment of their employers, etc.</p>

This writ of error was sued out to reverse a judgment sustaining a demurrer to the amended complaint of O. S. Huset, the plaintiff below and the plaintiff in error here, in an action for personal injury, which he brought against the J. I. Case Threshing Machine Company, a corporation.

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

July 19, 1899, plaintiff filed his petition in the civil district court for the parish of Orleans. Therein he represented that on September 30, 1898, he entered into a written contract with Ohas.

Appeal irom the District Court of the United States for the Southern District of Alabama. In Admiralty. Action by insurer to recover possession of a ship sold by the master while lying stranded.

<p>1. Foreign Corporation — Contracts—Eight to Hold Real Estate.</p> <p>In the absence of prohibitive legislation, a corporation may contract, acquire, hold, and convey real estate as fully in another state as in the state of its incorporation.</p> <p>¶ 1. See Corporations, vol. 12, Cent. Dig. § 2581.</p> <p>3. Same — Failure to Comply with Statute — Validity.</p> <p>In the absence of an express provision of statute to the contrary, the innocent acts and contracts of a foreign corporation, which has failed to comply with the statutes permitting it to do business in the state where the contracts are made and the acts done, are valid and enforceable, because it is not the intent of the authors of such laws to strike down contracts or acts in performance of them that are not evil in themselves.</p> <p>8. Same — Prohibition to Maintain Actions in State Courts — Right to Sue in Federal Courts.</p> <p>The prohibition by a state of the maintenance of actions in its courts by a foreign corporation does not prohibit or limit the right of that corporation to maintain such actions in the national courts, nor does it forbid the corporation from defending actions in the state courts.</p> <p>4. Lease — Construction—Payments.</p> <p>In a lease for 10 years, with a stipulation that in case no well was sunk within 2 years it should become void unless the lessee should elect from year to year to continue it by paying $40 each year, it is not essential that the $40 should be paid before the commencement of the year, but the payment may be made at any time during the year.</p> <p>5. Estoppel — Performance of Contract — Forfeiture for Delay.</p> <p>The grantor of an option, who prevents its exercise within the time specified in his grant, may not take advantage of the failure of its timely exercise, but must give a reasonable time therefor after the obstruction he interposed is removed.</p> <p>(Syllabus by the Court.)</p>

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

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

This action was brought by William Arnd, treasurer of Pottawattamie county, Iowa, the plaintiff in error, against the Union Pacific Railroad Company, the defendant in error, to recover municipal taxes amounting to §3,376.28, assessed in favor of the city of Council Bluffs, for its ordinary municipal purposes, on the eastern half of the defendant’s railway bridge which spans the Missouri river between the cities of Council Bluffs, Iowa, and Omaha, Neb.

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

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>. This is a suit to recover damages for the death of the intestate of the plaintiff in error, and a review is sought* of the judgment below, entered upon a verdict directed by the court.</p> <p>In the year 1890 the railway company, prior to the receivership, leased several acres of land situated upon the north side of the Mackinaw river, in Tazewell county, Ill., cleared the land, and fitted the same for a pleasure resort, building dining and dancing halls, cottages, and stands, and sought to induce the public to frequent the place for the purpose of pleasure, including fishing and boating. These pleasure grounds lay partly on the east and partly on the west side of the railway, and north of and extending to the Mackinaw river, and were fenced and in charge of a custodian. The station was on a trestlework at an elevation of 15 feet above the ground, the trestle continuing a distance of 300 feet to the north and a distance of from' 780 to 900 feet to the south, within that distance spanning the Mackinaw river. At the north end of the trestlework, and to the north of the station, were stairs descending to the pleasure ground below, and at the center of the platform of the station was an incline descending to the grounds upon the east side of the railway. In October, 1895, the receiver executed a new lease of these pleasure grounds, and also of a piece of ground on the south •of the river adjacent to the west line of the right of way, and upon the north bordering dpoh the river. This lease was for the period of 1 year, with the privilege of a further period of 14 years if desired by the receiver or his successors or by the purchaser of the railway. It was agreed that the tract on the south side of the river might be cleared, but should not. be fenced, and might be used in connection with and as part of the pleasure grounds then occupied by the company on the north side of the river. It was, however, shown in evidence that the land upon the south bank of the river had never been cleared, and was not in fact prepared for or used as pleasure grounds at tbe time of tbe injury complained of, but was covered with an undergrowth and sand and drift. At the east of the right of way, and on the south bank of the river, was a pasture lot owned by some other party, and fenced, which was resorted to occasionally by pleasure seekers at the grounds for the purpose of playing ball. The south shore of the river was sometimes resorted to for fishing. The ties of this trestlework were eight inches wide and four inches apart, and people frequently crossed the river upon the trestlework, there being no other bridge spanning the river. At the south end, and on the west side of the trestlework, were steps leading to the land below, supposed to have been placed there at the time of the construction of the bridge. At a distance of 15 feet south of these steps the company had placed upon its right of way a pile of railway ties without proper support, and it was in respect of this pile that negligence is charged. On the 28th of May, 1900, the plaintiff’s intestate, a lad of 18 years of age, a scholar in a high school, being one of a picnic party on that day visiting the grounds, with two or three of his companions crossed upon the railway bridge from the north, and upon the right of way of the company south of the trestlework, for a walk, and without any special purpose, and went upon this pile of railway ties. The pile fell, and young Smith was killed.</p>

The defendant in error (plaintiff below) brought its action at law in assumpsit to recover of the plaintiff in error (defendant below) for certain goods sold and delivered.

In 1899 the appellee Marcia E. Houghteling commenced an action at law in the court below against James H. Walker and Bmeline Tate Walker, his wife, substantially to charge the latter with the rental of a house occupied by them and leased to the husband. Liability was predicated upon the statute of Illinois, which charges the property of both husband and wife, or of either of them, for the expenses of the family and the education of the children.

<p>1; Carriers — Unreasonable Rates — Evidence to Establish.</p> <p>A finding that tbe rates charged' by railroads for shipments to a particular point are unreasonable in themselves, and in violation of section 1 of the interstate commerce act (24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), cannot properly be based on evidence which only tends to show that they are too high as compared with the rates charged between the Initial points and one or two other points.</p> <p>2. Same — Preference between Localities.</p> <p>The same evidence which warrants a finding that dissimilar circumstances and conditions exist which justify a lower rate for a longer haul to one point than for a shorter haul to another also establishes that the charging of such rates does not give one point an undue preference and advantage over the other, in violation of section 3 of the interstate commerce act (24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]).</p>

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

The substantial facts of this cause are as follows: Frank Schujahn, a manufacturer of cheese in Dodge County, Wisconsin, on the 28th of October, 1901, entered into a contract with appellees, cheese dealers in Chicago, in the •terms following: “Chicago, Oct. 28, 1901. Sold today to Glauser & Ehrat two hundred and twenty-five (225) cases of fall made Brick Cheese as follows: One hundred (100) cases to be shipped •at once.

<p>1. Judgment — Fraud of Other Creditors — Collateral Attack.</p> <p>Judgments offered as claims against the estate of a bankrupt are open to collateral attack on the petition of a creditor alleging that they represented no real ^indebtedness, but were fraudulently and collusively confessed and entered pursuant to a scheme between the judgment creditor and the bankrupt to defraud other creditors of the latter!</p> <p>¶ 1. See Judgment, vol. 30, Cent. Dig. § 958.</p>

<p>1. Patents — Validity and Infringement — Inkstand.</p> <p>The Davis patent, No. 605,177, for an inkstand, discloses invention In view of the simplicity of the device and the elimination of parts from the inkstands of the same general type in the prior art, and its utility and success, although the improvement is a narrow one. Claims 1 and 3 also held infringed by inkstands made in accordance with the Ashley patent, No. 661,334.</p> <p>2. Same — Infringement—Defenses.</p> <p>Where infringement would necessarily or naturally result from the ordinary use of a device, a defendant cannot escape liability for infringement by merely showing the possibility of a different use. The decisive question is whether the operation of the alleged infringing device when in use is the same, and produces the same results.</p>

<p>1. Patents — Infringement—Parts Having Different Functions.</p> <p>Where in a patented reel for box straps nail holes were punched in the frame for the purpose of fastening it to a support when required, and the nails were also used to effect a brake action on the strap coil, the nail holes were patentable only in respect to the latter function, there being no invention in making them for the former purpose; and the patent is not infringed by a reel having similar nail holes for fastening purposes, but which is equipped with a different and noninfringing brake.</p> <p>2. Same — Reel for Box Straps.</p> <p>. The Cary patent, No. 403,247, for a reel for box straps, construed, and held not infringed.</p>

In Equity. Suit for infringement of reissued letters patent No. 11,260, for a thill coupling, granted to William Henry Hannan August 16, 1892. On motion for preliminary injunction.

<p>1. Patents — Validity and Infringement — Automatic Lubricators.</p> <p>. The Buckley patent, No. 590,297, for a force-feed lubricator, the object of the invention being to provide a means whereby several machines may be automatically supplied from a single lubricator and the quantity of oil fed to each regulated, held valid as against the defenses of lack of invention, anticipation, and prior use. Also held infringed.</p>

<p>In Equity. Suit for infringement of letters patent, No. 590,297, for a force-feed lubricator' granted to John Buckley September 21, 1897. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 638,540, for a combined abdominal pad and hose supporter, granted to Ella" Foster-. Young, December 5, 1899. On final hearing.

In Bankruptcy. On February 11, 1902, Moses S. Fleishman filed his petition in this court to be adjudged a bankrupt, and was accordingly so adjudged. Afterwards a trustee in bankruptcy was chosen.

<p>1. Jurisdiction op Federal Courts — Ancillary Suit by Receiver.</p> <p>When a Circuit Court of the United States has obtained jurisdiction over a corporation by the filing of a creditors’ bill and the appointment of a receiver, a suit by the receiver for the collection of assets is cognizable in such court, regardless of either the citizenship of the parties or the amount in controversy.</p> <p>Building and Loan Associations — Accounting with Borrowing Stockholder.</p> <p>Insurance premiums paid by a borrowing stockholder in a building and loan association on the property mortgaged, although required by the contract, are for his own benefit, and cannot be applied in liquidation of the debt.</p> <p>8. Same -Laws Governing — Usury.</p> <p>Where both the subscription and loan contracts of a stockholder in a building and loan association are dated and made payable at the home office of the association, they are governed by the laws of the state of such home office.</p> <p>4. Same — Mistake op Fact — Erroneous Statement that Loan was PaiiJ.</p> <p>A statement sent by a building and loan association to a stockholder, by mistake, that his loan was paid in full, will not bind the association, where it was at once recalled, and no rights intervened.</p> <p>6. Same — Construction op Contract — Accounting with Borrowing Stockholder.</p> <p>The bond of a borrowing stockholder in a building and loan association provided that “upon final settlement with the association it is to retain as installment on the said stock and interest no greater sum than the sum actually advanced, with interest thereon at the rate of eight per cent, per annum.” Held, that such provision governed the rights of the parties in an accounting after the insolvency of the association, hut did not entitle the stockholder to credit on the debt for premiums paid.</p> <p>¶ 1. Supplementary and ancillary proceedings in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.</p> <p>¶ 2. What law governs usury in contracts of building and loan associations, see note to Kirlicks v. Interstate Building & Loan Ass’n. 51 C. C. A. 319.</p> <p>¶ 5. See Building and Loan Associations, vol. 8, Cent. Dig. § 63.</p>

<p>1 Bankruptcy — Discharge—Debts Excepted erom Release.</p> <p>Bankr. Act July 1, 1898, § 17, cl. 4 (30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), providing that a discharge shall release a bankrupt from all provable debts except such as “were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity,” should be so construed as to include within the exception debts created by fraud, embezzlement, or misappropriation in whatever capacity or relation the bankrupt was acting.</p> <p>2. Same.</p> <p>Goods were shipped to a bankrupt under a written contract which on its face purported to be one of sale and purchase, contemplating that the goods would be resold by the purchaser and payment therefor made at stated times in cash or notes received on sales at prices therein fixed. It contained the words: “For conditions of settlement, see reverse side of contract.” On the back was the provision: “It is agreed that you will hold in trust and separate for the settlement of our account with you all of said goods unsold and all currency, open accounts, notes, liens, mortgages or other values received for goods sold.” Held, that such provisions did not convert the contract from one of sale into one creating a trust and establishing. a fiduciary relation between the parties, nor render the debt from the bankrupt on account of goods sold and not paid for one created by fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity, within the meaning of Bankr. Act July 1, 1898, § 17, cl. 4 (30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), so as to prevent its release by a discharge of the bankrupt.</p>

In Bankruptcy. On questions certified by referee. Held: in one or two cases that the general words of the statute describing theofíense are sufficient for the introduction of evidence where the intent is to-allege that the bankrupt kept no books at all.

This is a motion for an order confirming a composition offered by the bankrupt, and, it is alleged, accepted by a majority in number of all creditors whose claims were allowed, and which number, it is claimed, represent a majority in amount of such claims.

<p>1. Telegraph Companies — Maintenance of Line — Post Roads — Right of Wav — Condemnation—Destruction op Line — Injunction.</p> <p>Act July 24, 1866 (14 Stat. 221), authorizes any telegraph company to construct, maintain, and operate its lines over and along any military or post road of the United States, after filing its written acceptance of the obligations required by the act; and Rev. St. § 3964 (23 Stat. 3 [U. S. Comp. St. 1901, p. 2708]), declares that all railroads, of the United States are post roads. Held, that where a telegraph company which had accepted the act of 1866, and had maintained its line along a railroad right of way for many years, had been directed by the railroad company to remove its line in accordance with the contract under which it was constructed, and had brought suit to condemn a right of way along such railroad, and the maintenance of the line during the pend-ency of such condemnation proceedings would not result in material damage to the railroad company, but its destruction would result in irreparable damage to the telegraph company, an injunction against such destruction, pending the suit to condemn, should be granted.</p>

<p>1. Weight of Testimony — Contradictory Statements of Witness — Effect.</p> <p>The fact that a witness, testifying that in a certain transaction he acted, as agent for a bank, had stated in contradiction of this that he was acting individually, affects only the weight of his testimony, and does not disprove his agency.</p> <p>2. Bank’s Insolvency — Aid of Third Person — Inducement by Cashier— Agency for Bank — Sufficiency of Evidence.</p> <p>Evidence in an action by one furnishing aid to an insolvent bank (being induced thereto by its cashier) to recover from the receiver, as a preferred creditor, considered, and helé to show that the aid was furnished to the cashier in his official capacity, as representative of the bank, and not as an individual.</p> <p>8. Same — Fraud of Cashier — Effect as to Bank.</p> <p>Where a cashier of an insolvent bank, acting for it, induced his financée to furnish securities for ¿ loan to aid the institution, any fraud practiced on her through advantage taken of the relation between them was that of the bank.</p> <p>4. Same — Preference as Creditor.</p> <p>A woman engaged to marry the cashier of an insolvent bank, who is told by him that the bank is in trouble and needs money or securities immediately, and is induced by him to furnish securities for a loan to the bank, but is not told that the bank’s capital is gone, and more, as a result of defalcations by the cashier and others, is entitled to recover from the receiver, as a preferred creditor, the amount of the loan paid by her to save her securities.</p>

<p>Appeal by Defendant from Commissioner’s Judgment of Deportation.</p>

<p>In Bankruptcy. This is a motion on the part of the trustee in banlo ruptcy herein to confirm the report of William Lansing, referee in bankruptcy, to whom it was referred, as special master, to take evidence and report, with findings of fact and conclusions of law, as to the title of the petitioner in this proceeding, the A. M. Church Company, to certain goods in the possession of the trustee, and the right of said company to have such goods turned over and delivered to said petitioner.</p>

<p>In Equity. Sur petition of William C. Bullitt for the removal of a receiver.</p>

<p>1. Bankruptcy — Exempt Property — State Statutes.</p> <p>Bankr. Act, § 6, Act July 1, 1898, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424], declaring that the act shall not affect the allowance to bankrupts of the exemptions prescribed by the law of the state where the bankrupt has his domicile, did not enlarge the exemptions available to the bankrupt under the state laws, nor prevent the enforcement of Code Iowa, § 4015, providing that none of the exemptions prescribed in the chapter should be allowed against an execution issued for the purchase money of property claimed to be exempt.</p> <p>2. Same — Estoppel of Bankrupt.</p> <p>Code Iowa, §. 4015, provides that none of the exemptions prescribed by the chapter should be allowed against an execution issued for the purchase money of property claimed to be exempt, and on which such execution is levied. Held that, where a bankrupt invoked the benefit of the. bankrupt act, and thereby precluded a seller of exempt property from obtaining a judgment and levying execution thereon, as required by such section, he was estopped to object that the court of bankruptcy had no jurisdiction to order that such property be sold, and the proceeds applied to the unpaid purchase price, on the ground that no judgment had been recovered or execution levied.</p> <p>8. Same — Sale of Exempt Property — Application—By Whom Made.</p> <p>Since no title to exempt property passes to the trustee in bankruptcy, creditors having claims for unpaid portions of the purchase price of such property, claiming the right to have it sold, and the proceeds applied to such claims, are the proper persons to present such question, and not the trustee in bankruptcy.</p>

<p>In Admiralty. Suit in rem to enforce lien for stevedore’s charges;</p>

<p>1. Corporations — Reorganization — Stockholders — Rights — Merger of-Claims.</p> <p>Intervener recovered judgment against a company for accrued dividends on stock held by his intestate. The company subsequently became-involved in litigation, and was reorganized under a new charter. Intervener thereupon deposited his stock under the reorganization plan, and. received preference bonds of the new company. Held, that intervener was bound by his action in entering into the reorganization, and could not assert his judgment, obtained against the old company, against the-assets of the new company, to the prejudice of other creditors.</p>

<p>1. Diverse Citizenship — Trustees—Refusal to Sue — Jurisdiction.</p> <p>In an action by two of three trustees against a corporation residing in another state, the fact that one of the trustees, who refused to join as plaintiff in the suit, and was made a defendant, resided in the same state as the corporation, did not deprive the federal court of jurisdiction, on the ground that the trustee residing in the same state with defendant was a necessary party plaintiff, since that trustee was not really a party to the controversy, hut only made such in order that the rights of aU interested parties might be determined in one proceeding.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p>

<p>1. Judges — Disqualification—Relationship.</p> <p>Rev. St. § 601 [U. S. Comp. St. 1901, p. 484], provides that, whenever it appears that the judge of any District Court is so related to either party as to render it improper for him to sit on the trial, it will be his duty, on application by either party, to cause the fact to be entered on the records, and certify the suit to the next circuit court for the district, etc. Section 914 [TJ. S. Comp. St. 1901, p. 684] provides that the practice, pleadings, and forms and modes of proceeding in e.ñl caus'es in the Circuit and District Courts shall conform, as near as may be, to the practice, pleadings, etc., in like causes in courts of record of the state within which such Circuit or District Courts are held. Code Ga. § 4045, declares that no judge can sit in any cause or proceeding in which he is related to any party within the fourth degree without the consent of all the "parties in interest. Held that, even with the consent of the parties, a federal judge should not sit in a cause in which he is related to one of the parties within the fourth degree, of consanguinity.</p>

<p>In Equity. On bill to have a bill of sale of personal property declared a mortgage, and for a stay of an action at law.</p>

<p>1 Customs Duties— Carbons of Various Length.</p> <p>Electric carbon sticks of various lengths, to be cut required lengths and finished for use in electric lighting, are dutiable, as carbon not specially provided for, at 35 per cent, ad valorem, under paragraph 97 of the tariff act of 1897 (30 Stat. 156 [U. S. Comp. St. 1901, p. 1633]), and not as' carbons for electric lighting, at 90 cents per hundred of sticks they would make of the length required, under paragraph 98.</p>

<p>Albert Comstock, for appellant.</p> <p>Charles D. Baker, Asst. U. S. Atty.</p>

<p>1. Partnership — Debts op Firm — Release op Partner — Actions—Parties.</p> <p>A complaint alleged that a firm consisting of defendant and W. was indebted to plaintiff’s assignor, and that W. paid a certain sum in satisfaction of one-half of the debt, which was accepted in full satisfaction of all claims against W., and that defendant was liable for the balance. Held, that since Code Civ. Proc. N. Y. § 1942, permitting separate composition by joint debtors, expressly excludes partnership liabilities until after dissolution, under such allegations one-half of the debt was released as against both partners, and both were liable for the balance, and hence an action could not be maintained against defendant alone.</p> <p>2. Same — Partnership and Individual Causes — Joinder.</p> <p>Where partnership and individual causes of action were joined in the same complaint, but a demurrer was sustained to the count charging a cause of action against the firm, the complaint was good as to the other.</p>

<p>1• Customs Duties — Split Bamboo.</p> <p>Split bamboo, cut into lengths of 12 inches, and tied in bundles Intended for use in making brooms, is not taxable under Revenue Act July 24, 1897, c. 11, par. 208 (30 Stat. 168 [U. S. Comp. St 1901, p. 1647]), as manufactures of wood, but is entitled to free entry as “bamboo, rattan, and reed unmanufactured,” under paragraph 700 (30 Stat 202 [U. S. Comp. St 1901, p. 1689]).</p>

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

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

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

<p>Appeal and Cross-Appeal from 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 Eastern District of Wisconsin.</p>

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

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

<p>Petitions for Revision of Proceedings of the District Court of the United States for the Southern District of New York.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York.</p>

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

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

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

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

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

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

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

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

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

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

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

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of California.</p>

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

<p>Appeal from 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 Western District of Wisconsin.</p>

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

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

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

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

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

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

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

<p>Appeal from the District 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 Northern District of New York.</p>