Volume 121 — Federal Reporter

By the first section of the act of Congress of March 2, 1889 (25 Stat. 100S), all lands theretofore granted to the state of Michigan by an act of Congress of June 3, 1856 (11 Stat. 17), to aid in the construction of certain railroads in said state, which were opposite to and coterminous with the uncompleted portion of any of such railroads, were forfeited to the United States, and declared to be a part of the public domain.

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

This suit was brought in the city court of Montgomery, Ala., by the county of Montgomery against John J. Cochran, a citizen of Alabama, and the Fidelity & Deposit Company of Maryland, a corporation chartered under the laws of Maryland. It was removed to the Circuit Court of the United States for the Middle District of Alabama on the application of the Fidelity & Deposit Company on the ground of prejudice and local influence. 116 Fed. 985.

<p>1. Equitable Liens — Advances to be Repaid by Shipments — Insolvency of Borrower before Shipment.</p> <p>Interveners made advances to defendant corporation, which was operating a central sugar refinery and a number of plantations, to enable it to carry on its business through the season, under a written contract by which the company agreed to ship all sugar products made at its refinery to interveners, who were to apply the proceeds in payment of the advances. Such advances, however, largely exceeded the amount called for by the contract. What sugar was shipped from the refinery1 was shipped to interveners, but, owing to a scarcity of cars, it accumulated in the refinery, and a quantity remained there at the time of the appointment of a receiver for the company. Eeld, that interveners were entitled to an equitable lien upon the sugar so remaining in the hands of the receiver, as against general creditors, under the maxim that equity regards that as done which ought to be done.</p> <p>2. Same — Exclusion by Statutory Liens — Law of Louisiana.</p> <p>The law of Louisiana, although it makes no provision for liens aside from contractual privileges and mortgages, does not preclude the allowance and enforcement of an equitable lien by a federal court.</p>

The appellant, who was complainant in the court below, filed this bill for the purpose of obtaining an injunction restraining the defendant from manufacturing and selling, within the United States and east of Denver, Colo., certain special metallic castings described therein, and from using the processes used by the complainant in the manufacture of such castings, and for an accounting of previous manufacture and sales. The defendant demurred to the bill.

Schedule B of the act of Congress of June 13, 1898 (30 Stat. 462), provides as follows: “For and upon every packet, box, bottle, pot, or phial, or other inclosure containing any pills, powders, tinctures, troches or lozenges, sirups, cordials, bitters, anodynes, tonics, plasters, liniments, salves, ointments, pastes, drops, waters (except natural spring waters and carbonated natural spring waters), essences, spirits, oils, and all medicinal preparations or compositions…

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

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

<p>L Jurisdiction on Circuit Court — Sum or Value op Matter in Dispute.</p> <p>The sum or value of the matter in dispute, which conditions the jurisdiction of a federal circuit court, is the amount or value of that which the complainant claims to recover, or the amount or value of that which the defendants will lose if the complainant obtains the recovery he seeks.</p> <p>8. Same.</p> <p>In a suit by an alleged owner of Vs 25 of certain real property, constituting waterworks and their appurtenances, to cancel and avoid mortgages thereon for $475.000, and to declare his interest in the property free from the liens of those mortgages, the sum or value of the matter in dispute is not the amount of the mortgages or the value of the entire property, but the value of the 1/325 of the property which the complainant claims to own, and seeks to relieve from the liens of the incumbrances.</p> <p>(Syllabus by the Court.)</p> <p>¶ 1. Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>See Courts, vol. 13, Cent. Dig. §§ 890, 897.</p>

The plaintiffs in error were the plaintiffs below in an action at law against the State Bank of Ambia, defendant below, to recover the proceeds of a sale made by the bank of 100 shares of its stock, held by the plaintiffs, and sold pursuant to a statute of Indiana providing therefor when the capital stock of a bank was found to be impaired, and an assessment to make good the deficiency was unpaid. Section 13, p. 242, 4 Burns’ Supp. 1897 (Acts 1895, p. 202).

The plaintiffs in error, citizens of the state of Illinois (hereinafter mentioned as plaintiffs), sued the defendant in error, who was sheriff of La Porte county, state of Indiana (hereinafter mentioned as defendant), in the court below, in trespass, to recover damages for machinery and other personal property, of the alleged value of about $10,000, seized and sold by the defendant.

<p>1. Lije Insurance — Benefit Association — Waiver of Prompt Payment of Assessments.</p> <p>A fraternal benefit association cannot be deemed to have waived a condition of its contract with a member requiring the payment of an assessment on or before the last day of each calendar month, without notice, and which provided that in default of such payment the member should stand suspended, and prohibited the collector of the local council from receiving an assessment after the day it became due; nor was it estopped to insist upon such suspension, which occurred some days before the member’s death, because on some previous occasions he had paid after the close of the month, where that fact was not reported to the local council nor known to the supreme council, but'where, in fact, the assessment had in each case been advanced for him by the collector under an arrangement between them.</p> <p>¶ 1.. See Insurance, vol. 28, Cent. Dig. § 1914.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy. On petition to review order vacating the stay theretofore granted, and permitting the bankruptcy proceedings to continue before the referee, and refusing to enjoin the bankrupt from prosecuting an application for his discharge.

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

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Illinois in Bankruptcy. This is an original petition, filed in this court by the Surety Guarantee & Trust Company, pursuant to section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp.

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This appeal is brought by the defendant, F. C. Austin Manufacturing Company, from a preliminary injunction granted upon bill filed by the American Wellworks, as complainant, alleging infringement by the defendant of certain claims of letters patent No. 382,689, issued May 15, 1888, to Matthew T. Chapman, for “apparatus for sinking wells.” No infringement is asserted in the well boring and sinking machinery used by the defendant, except in its device for clamping and sinking the well tubing, which is alleged to infringe claims 12 and 13 of the patent, namely:</p> <p>“(12) A rotary clamp adapted to grasp a round article and rotate with the-endwise movement of the article clamped, independent of the rotary movement which carries said article around, and having jaws of a circular form, provided with sharp angles, substantially as described.</p> <p>“(13) A rotary clamp having jaws of a circular form, with sharp angles, adapted to grasp a round article, to rotate with the endwise movement of the-article, independent of the rotary movement which carries said article around, in combination with a rotary ring for carrying said clamp, and gearing for driving said ring, substantially as described.”</p> <p>The validity of these claims is challenged, but the main contention for reversal of the order is that the defendant’s rotary clamp does not infringe, for the reason that a “round beaded roll” for grasping the pipe is substituted for the means described in the claims as “jaws of a circular form, provided with sharp angles.”</p>

From a decree awarding the Penn Company an injunction against the Regent Company and Curry, and an accounting against the Regent Comnany alone, this appeal is prosecuted.

<p>1. Patents — Invention—Transplanting Machines.</p> <p>The Bemis patent No. 423,723, for a transplanting machine, claim 1, is void for lack of patentable invention in view of the prior art, including the Smith transplanter (patent No. 335,724, and improvements covered by later patents), which was an operative machine, the only change in which made by Bemis was to substitute for the pressing rollers pressing plates previously known and used in seed-planters, which was an obvious-mechanical substitution.</p> <p>2. Same — Infringement.</p> <p>The Bemis patent No. 423,724, for a transplanting machine, claim 6,. is void for lack of invention. Claims 3 and 4 held not infringed if valid,</p> <p>6 Same.</p> <p>The Starks and Felland patent, No. 486,200, for a transplanting may chine, claims 1 and 2, covering a combination of devices by which the weight of the persons who set the plants is utilized to hold the furrow-opener in the ground, is not infringed by the machine of the Moehring patent, No. 653,425, which employs different means for utilizing the 'driver’s weight for the same purpose. Claims 6 and 7, for means to-fasten the tongue rigidly to the frame and to disengage it at the end of the row, in view of the prior agricultural implement art, must be restricted to the means specified, and, as so limited, they are not infringed, by the Moehring machine.</p>

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

<p>1 Patents — Defense to Suit foe Infkingement — Equitable Assignment.</p> <p>Complainant, while in the employ of defendant, which was engaged in the business of making valves, invented an improved valve, on which he applied for a patent after a number had been made and sold by defendant. A question having arisen between the parties as to compensating complainant for the invention, a settlement was made, and complainant was given a paper, signed on behalf of defendant, by which it agreed that his salary for the ensuing 10 years should be as therein stated, the provision being for an increase from time to time, and complainant orally agreed to assign the patent. He subsequently claimed, contrary to the fact, as found by the court, that it was a further condition of the agreement that defendant would covenant for his employment during such 10 years, and refused to assign the patent otherwise, and left defendant’s service. Held, that by virtue of the contract defendant became the equitable owner of tbe patent, and complainant, having refused to perform on his part, could not maintain a suit for its infringement, which he could not have done if he had performed.</p>

<p>In Equity. Suit for infringement of letters patent No. 627,732 for an improvement in silos, granted to George W. Harder, June 27,1899. On final hearing.</p>

<p>In Equity. Suit for infringement of patent. On pleas raising the question of jurisdiction.</p>

<p>1. Patents — Application—Second Application for Same Device.</p> <p>A second application for a patent, which describes precisely the same device as a former one, which has been abandoned by permission, will be treated as continuous of the first.</p> <p>2. Same — Invention—Fountain Pens.</p> <p>The Waterman patent, No. 604,690, for an improvement in fountain pens, which consists essentially in making a conical or tapered joint between the cap and the barrel or nozzle of the pen (the cap being thinner and more elastic at the mouth, to form a noncapillary joint), while showing an improved method of construction, does not disclose patentable invention; the adaptation of such joints, which were old and well known, and in use in other articles made of hard rubber, to use on a fountain pen, requiring only the skill of a mechanic.</p>

<p>In Equity. Suit for infringement of letters patent No. 293,545, for a fountain pen, granted to Eewis E. Waterman February 12, 1884. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 363,528, issued May 24, 1887, and No. 461,357, issued October 13, 1891, each for a circular knitting machine, and granted to William H. Mayo and George D. Mayo; and No. 600,788, granted March 15, 1898, to Will R. Johns, and No. 600,761, granted March 15, 1898, to Arthur N. Ames, each for thread-feeding mechanism for knitting machines. On final hearing.

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>The mere cessation of infringement is not always sufficient to defeat a complainant’s right to an injunction; but where it is shown that defendant abandoned the manufacture of the articles complained of some time before the commencement of suit, without any intention to resume, and there is no reason to doubt his good faith, a preliminary injunction will not be granted.</p>

In Equity. Three suits for infringement of design patents Nos. 33,961, 33,962, and 33,963, all for designs for end frames of bedsteads, and No. 33,964, for a design for a corner post of bedsteads, all issued to David Frank January 22, 1901. On final hearing.

<p>In Equity. Suit for infringement of patent. On motion for leave to discontinue.</p>

<p>1. Patents — Designs—Subject of Design Patents. •</p> <p>A design patent cannot be made to cover a mechanical construction by which the shape of the article, which is the principal feature of the design, is produced.</p> <p>2. Same — Infringement—Design -for Belt.</p> <p>The Lewenthal design patent, No. 34,357, for a design for a belt to be worn, held not infringed by a belt which resembled the design only in having a downward dip in front: such feature being neither novel, nor patentable as a design.</p>

In Equity. Suit for infringement of letters patent No. 643,493, for a stage appliance, granted to Ida M. Fuller November 10, 1899. On motion for preliminary injunction.

In Equity. Suit for infringement of patent. On motion by defendant to have the charge of infringement in the bill made more specific.

<p>1. Patents — Infringement—Ferrule for Umbrellas.</p> <p>The Evans patent, No. 410,828, for a ferrule and point united by a dovetailed joint, for use on umbrellas, canes, etc., is entitled only to a narrow construction, limiting it to the specific device shown and described, both the ferrule and tip for such purpose being old in the art; and it is not infringed by a tubular metal umbrella stick having a tip or plug swaged into its lower end, such stick not being the equivalent of the ferrule of the patented combination.</p>

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

<p>1. Patents — Suit for Infringement — Preliminart Injunction.</p> <p>A preliminary injunction against infringement will not be granted where, before the determination of the motion therefor, the patent sued on has expired.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. § 491.</p>

<p>1. Patents — Violation of Injunction — Proceeding for Contempt.</p> <p>On a motion to punish for contempt in violating an injunction against infringement, doubtful questions are not to be resolved against the respondent.</p>

<p>1. Bankruptcy — Corporations—Pursuits—Trading.</p> <p>The purchase by a freight forwarding company of horses, hay, wagons, harnesses, etc., necessary to carry on its business, and the occasional incidental sale of horses and wagons, does not transform it into a trading or mercantile company, within the meaning of section 4 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423]), providing that “corporations principally engaged in * * * trading * * * or mercantile pursuits” shall be susceptible to bankruptcy.</p> <p>2. Same — Statutory Provisions — Interpretation—Former Provisions.</p> <p>The difference in language between the act of 1867, which provided for the bankruptcy of “all monied business or commercial corporations,” and section 4 of the act of 1898 (act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423]), providing for the bankruptcy of corporations “engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits,” implies an exclusion of some corporations under the act of 1898, which were within the purview of the former act.</p> <p>8. Same — Charter Provisions.</p> <p>While the susceptibility to bankruptcy of a corporation does not depend wholly on its charter, yet it can hardly be brought within the scope of the act by a principal business outside its charter; and therefore a company whose only authorized business is that of a carrier, is not susceptible to bankruptcy on the ground that its principal business is in fact that of a trader.</p> <p>4. Same — Principad Business.</p> <p>A corporation whose business was chiefly that of a carrier, and to a less degree that of letting teams by the hour, day, or week, with a subordinate business of taking horses to board, cannot be held to have been principally engaged in trading, within the meaning of section 4 of the bankruptcy act of 1898 [U. S. Comp. St. 1901, p. 3423].</p> <p>5. Same — Amendment to Act.</p> <p>The interpretation of the bankruptcy act of 1898 [U. S. Comp. St. 1901, p. 3418], giving the words “trading” and “mercantile” a narrower meaning than “monied business or commercial,” as used in the act of 1867, is strengthened by the adoption of the recent amendment, wherein by specific language “mining” is added to the “pursuits” rendering corporations susceptible to bankruptcy.</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.</p>

<p>1. Bankruptcy — Life Insurance Policy — Assets—Exemptions.</p> <p>Where an ordinary life insurance policy of a bankrupt has been pronounced valueless by the trustees in bankruptcy, and turned over to him without an order of the court, and he thereafter, by himself or his wife, pays the premiums thereon for about 15 months, and dies at the expiration of that time, the court will not require that the proceeds of the life policy be paid over to the trustees. The rule might be otherwise with endowment or tontine or other investment policies which have a determinable value.</p> <p>2. Same.</p> <p>By section 70a, cl. 5, Bankr. Act 1898 (30 Stat. 566 [B. S. Comp. St. 1901, p. 3451]), Congress expressed the purpose that after the payment of the cash surrender value of a policy, or, where there is no cash surrender value, the bankrupt may be entitled to hold, own, and carry such policy free from the claims of creditors.</p> <p>8. Same — Surrender to Bankrupt.</p> <p>. Where trustees have recognized that there is no cash surrender value, and have turned over the policy to the bankrupt without an order of court, the court, when that is made to appear, will approve such action nunc pro tunc.</p> <p>4. Witness — Competency—Transactions with Decedent.</p> <p>By Bankr. Act 1898, § 21, cl. “a” (30 Stat. 551 [B. S. Comp. St. 1901, p. 3430]), the competency of a witness before the bankruptcy court must be determined by the laws of the state in which the proceedings are pending. By this test, under the law of Georgia (Code. § 5209), the trustees in this case cannot testify to give their personal recollection of transactions or occurrences with the bankrupt on the trial of a suit brought by them against his widow.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — Decision Adverse to Trustees — Petition for Beview— Costs.</p> <p>Where the trustees of a bankrupt surrendered a life policy to him as valueless, and he or his wife paid the premiums thereon until his death, such trustees will not be authorized, on application of a majority of the creditors, to pay the costs of a petition to review a decision adjudging that the wife was entitled to proceeds of the policy.</p> <p>¶ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p>

<p>1 Customs Duties — Cotton Velvet Fabric Trimmings.</p> <p>Trimmings cut out of cotton velvet fabric, in various open and scroll work designs and colors, are dutiable as pile cotton fabrics, under the second proviso of paragraph 315 of the tariff act of July 24, 1897 (30 Stat. 178 [U. S. Comp. St. 1901, p. 1659]), and not as cotton trimmings, at 60 per cent, ad valorem, under paragraph 339 (30 Stat. 181 [U. S. ■ Comp. St. 1901, p. 1662]).</p>

<p>Demurrer to Statement.</p>

<p>1. Customs Duties — Manufactures of Silk.</p> <p>Garnitures and bussar sets in designs of silk cord and braid, stitched in place in extremes about 16 inches long and 10 or 11 inches wide for the fronts of dress waists, and 24 to 26 inches long and 20 to 24 inches wide for dress skirts, and bought and sold by the piece, are not dutiable as silk trimmings, under Tariff Act 1897, par. 390 (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]), but as manufactures of silk not specially provided for, under paragraph 391 (30 Stat 187 [U. S. Comp. St 1901, p. 1670]).</p>

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

<p>1, Customs Duties — Nonenumerated Articles — Dutiable by Similitude.</p> <p>Articles, such as paper cutters, paper weights, knife handles, and pen or pencil holders or handles, made wholly or chiefly of agate or onyx, are dutiable by similitude to “precious stones cut, but not set,” under Act Oct. 1, 1890, §' 5 (26 Stat. 613; Rev. St. § 2499), laying on “every nonenumerated article which bears a similitude * * * to any article enumerated” “the same rate of duty which is levied and charged on the enumerated article which it most resembles,” etc.</p>

<p>1. Statutory Construction — Derivative Statute — Collocation of Words.</p> <p>The construction necessarily given to a previous statute must be regarded as impressed upon one which follows and is derived from it, in which the same collocation of words in the same connection is employed.</p> <p>2. Same — Customs Duties — Importation of Ores for Smelting under Bond —Act July 24, 1897, § 29.</p> <p>Section 29 of the tariff act of 1897 (Act July 24, 1897, c. 11, 30 Stat. 210 [U. S. Comp. St. 1901, p. 1957]), which permits ores or metals in any crude form, requiring smelting or refining, to be imported under bond for the purpose of being smelted or refined In this country, to be then exported again, depends for its construction on Act Oct. 1, 1890, § 24, and Act Aug. 27, 1894, § 21, which precede it; and as the practical construction to be given to these acts required that the quantity of refined metal there directed to be set aside each day for subsequent export, equal ■ to that smelted or refined that day, should not be an equality numerically, ton for ton, but an equality according to which the actual yield stood for the crude ores or metal from which it was derived, allowing for wastage in the process, the same construction is to be given to the act of 1897, which calls for the setting aside and subsequent exporting of 90 per cent, of the refined metal. It is therefore sufficient, under the said section, to set aside and export 90 per cent, of the actual yield of the ores or metals imported and smelted or refined under its provisions; and it is not necessary that the quantity should be 90 per cent, of the government assay.</p> <p>8. Same — Wastage of Metals.</p> <p>The section referred to does not seek to provide a duty. It is simply concerned with devising a way by which, without evasion, the crude material can be allowed to come into the country without duty for the single purpose of being smelted or refined here. The case of Collector v. Balbach Smelting Co. (C. C.) 81 Fed. 950, which decides that no deduction is to be made on dutiable ores on account of wastage in process of smelting or refining, does not, therefore, apply.</p> <p>4. Same — Treasury Allowance — Subsequent Enactment.</p> <p>An arbitrary allowance of 10 per cent, for wastage having been made by the treasury department under the act of 1890, and continued under the act of 1894, subsequently passed, in calculating the amount of refined metal required to be set aside and exported in satisfaction of the bonded smelter’s bond, the act of 1897, calling for the setting aside and exporting of 90 per cent, of the refined metal, is not to be regarded simply as legalizing this deduction, nor yet as adopting it, but as a substantive enactment giving the bonded smelter of right just so much more than the previous act accorded him.</p>

<p>1. Trade-Marks — Infringement—Reconstructed Articles.</p> <p>Defendant was engaged in the business of buying burned-out electric lamps — among others, lamps made by complainant, and bearing its trademark-cleaning and repairing them, and inserting new filaments, after which they were-resold. Held, that such process was a reconstruction, and not merely a repairing, and defendant’s lamps were a different product from those of complainant, and not entitled to be resold under its trade-mark.</p> <p>2. Same--Right to Injunction — Manner of Affixing Trade-Mark.</p> <p>Complainant was a large manufacturer of electric lamps, and defendant had established quite a large and important business in renewing or remaking bumed-out lamps bought from the public and reselling the same. It conducted its business in a fair and legitimate manner, removing the old labels from the lamps, and affixing its own labels to the reconstructed lamps. After it had been in business some two years, complainant began affixing its trade-mark “G. E.” to each of its lamps, pasting- the same in the interior of the leading-in tube in the process of manufacture, bringing it also within the bulb, and where defendant.could not remove it, at least without increasing the cost of remaking the lamp, and it sold lamps of complainant’s make after it had reconstructed the same with such trade-mark remaining therein, affixing its own labels on’ the outside. Held, in a suit to enjoin such sales as an infringement of complainant’s trade-mark, that, in the absence of clear proof that complainant placed its trade-mark where it did for legitimate trademark purposes, to identify its goods, and not with the ulterior purpose of preventing legitimate competition by the remaking and reselling of the lamps after they had been burned out, a court of equity would not grant a preliminary injunction, but would leave the rights of the parties to be determined on a full hearing.</p>

<p>In Equity. This cause, which is to restrain the infringement of a trade-mark and unfair competition, and seven others of like import were argued at the October term of this court, pursuant to a stipulation consolidating the eight causes and consenting that they be argued together as one cause.</p>

<p>1. Dismissal — Effect of Order Dismissing at Complainant’s Costs — Waiver of Irregularity.</p> <p>An order, entered ex parte on complainant’s motion dismissing a bill for infringement of a patent “at complainant’s costs,” without prejudice to the right of complainant to commence a suit for infringement of a reissued patent, obtained by complainant pending the. suit by surrender of the patent sued on, is not conditional on the payment of the costs, nor is it void; if irregular because granted without notice, the only remedy of defendant is by motion to set it aside, in the absence of which the ir regularity is waived.</p> <p>2. Same — Dismissal Without Prejudice — Effect of Failure to Pay Costs.</p> <p>Under Code Civ. Proc. N. Y. § 779, by rule made applicable to the procedure in the Circuit Court of the United States in the Northern District of New York, and which provides that when costs directed to be paid by an order, which fixes no time for their payment, are not paid within 10 days, all proceedings on the part of the party required to pay the same are stayed without further direction of the court until the payment thereof, an order of a Circuit Court dismissing a hill at complainant’s costs, without prejudice to a new suit, does not prevent complainant from commencing a new suit at once before the costs are paid, the only effect of the nonpayment of the costs in the former suit being to stay the second suit if they are not paid within 10 days.</p>

<p>1 Bankruptcy — Petition—Presentation—Rights op Creditors — Estopped.</p> <p>Where a creditor participated in a general assignment by the debtor under state assignment laws, he is estopped from subsequently filing or becoming a party to an involuntary bankruptcy petition to avoid the assignment.</p>

<p>1. Mails — Lotteries—Prizes—Advertisement— Construction.</p> <p>A circular offering prizes to persons who should estimate nearest to the number of cigarettes on which tax is paid during a certain month, as shown by the total sales of stamps by the United States Internal Revenue Department during that month, each estimate to be accompanied by 10 cigarette coupons inclosed in boxes of a particular brand of cigarettes, is not a lottery within Rev. St. 3894, amended 1 Supp. Rev. St. 803 [U. S. Comp. St. 1901, p. 2659], prohibiting the sending of any lottery, etc., through the mails.</p> <p>' • ¶ 1. Nonmailable matter .relating to lotteries, see note to Timmons v. U. S., 30 C. C. A. 90.</p>

<p>1. Attorney and Client — Contingent Pees — Validity of Contract.</p> <p>A contract between plaintiff and bis attorney by wbicb plaintiff agreed to pay tlie attorney 50 per cent, of any recovery for injuries to plaintiff, and, in addition, to pay all the disbursements, was unconscionable and void.</p> <p>2. Same — Lien of Attorney — Prosecution of Suit after Settlement.</p> <p>Where, in an action for injuries, plaintiff’s attorney served notice of a lien for bis compensation, and plaintiff settled the case with defendant, before trial, without the attorney’s consent, whereupon the attorney continued the prosecution for his fees, and a verdict was rendered assessing plaintiff’s damages at $500, the attorney was entitled to recover from such amount the reasonable value of his services actually rendered, whereupon the balance of the recovery would be remitted.</p> <p>¶ 1. See Champerty and Maintenance, vol. 9, Cent Dig. § 26.</p>

<p>1. Trade-Marks — Descriptive Character oe Word — “Elastic” as Applied to Sectional Bookcases.</p> <p>The word “Elastic” is not aptly descriptive of bookcases or filing cabinets constructed in sectional parts, so that their size may be increased or diminished by adding or taking away sections, but is at most only suggestive of such feature, which does not preclude its appropriation as a trade-mark by the manufacturer of such articles to identify the goods of its manufacture.</p> <p>8. Same — Unfair Competition.</p> <p>The word “Elastic” held, under the evidence, to have been used for such length of time by plaintiff as to have acquired a secondary meaning in the trade and with the general public as identifying sectional bookcases, and similar articles of its manufacture, and to entitle it to protection against the use of such word in connection with the goods of other manufacturers, even if not valid as a technical tráde-mark.</p> <p>¶ 1. Arbitrary descriptive or fictitious character of trade-marks and trade-names, see note to 50 C. C. A. 323.</p> <p>¶ 2. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1. Corporations — Stockholders.</p> <p>Parties who permit the issuance of stock in a corporation to- them, acquiesce in it for many years, and do not disavow the acts of the officers in issuing it, are liable as stockholders, even though they paid no consideration for the stock, and the regularity of its issue might be questioned.</p> <p>¶1. Stockholders’ liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.</p>

<p>Rule to Show Cause Why Indictment Should not be Quashed.</p>

<p>1. Pledges — Enforcement.</p> <p>Where an agreement pledging securities to a trustee for the payment of interest on certificates provided that, in case of default in the performance of any obligation undertaken by the pledgor, the trustee might institute such proceedings as might be advised by counsel, the trustee was entitled, in default in payment of the interest, to resort to a court of equity to enforce the agreement, notwithstanding that the agreement provided a mode of enforcement without the intervention of the court.</p> <p>2. Same — Necessity of Sale — Demurrer.</p> <p>A bill by a trustee for the sale of securities pledged to secure the payment of interest on certificates issued by the pledgor, alleging a default in the payment of interest, should not be dismissed on demurrer, because on the final hearing it may appear that it will not be necessary to sell all the certificates pledged, as prayed in-the bill.</p> <p>3. Receivers — Application for Instructions by Stockholders — Defense to a Suit — Discretion of Receiver.</p> <p>Where a stockholder in a corporation applies to the receivers and requests them to set up, by way of answer to a bill filed by a trustee for the sale of certificates pledged by the corporation, certain facts which he alleges on information and belief, and the receivers aver that they have inquired into said alleged facts and have found them without foundation, the' court will not require the receivers to make answer of such matters.</p>

<p>1. Customs Duties — Plaster of Paris Statuettes.</p> <p>Decorated and ornamented statuettes, made from plaster of paris— sulphuric acid, lime, and water — are not taxable under Tariff Act July 24, 1897, c. 11, par. 95 (30 Stat. 156 [U. S. Comp. St. 1901, p. 1633]), as china, porcelain, or crockery ware, including statuettes ornamented, etc., but are taxable under paragraph 450 (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]), as manufactures of plaster of paris, or of which such substance is the component material of chief value, not specially provided for in the act.</p>

<p>1. Bill of Review — Leave to File.</p> <p>Leave to file a bill of review can only be obtained from the court in which the decree is rendered and enrolled.</p> <p>2. Same — Time of Filins.</p> <p>After decision of a cause in the Circuit Court of Appeals, a bill of review filed in the Circuit Court without leave of the Circuit Court of Appeals must be considered, in determining whether it was filed within a reasonable time, as filed on the date on which leave to file was subsequently granted by the Circuit Court of Appeals.</p> <p>8. Same.</p> <p>A bill of review for matters of law appearing on the record must be filed within the time allowed for an appeal, and for newly discovered matters within a reasonable time.</p> <p>4. Same — Leave to File.</p> <p>A bill of review for newly discovered matters cannot be filed without leave of the appellate court.</p> <p>5. Same — Basis fob.</p> <p>A bill of review may be based on newly discovered evidence, which could not have been used on a former hearing, or for errors appearing on the record.</p> <p>6. Same — Newly Discovebed Evidence.</p> <p>When a bill of review is based on newly discovered evidence, it must be on new matter which has arisen since the decree.</p> <p>7. Same — Fraud Newly Discovebed.</p> <p>A bill of review alleged fraud in concealing from complainant the actual number of acres in a tract of land; but it appeared that there was correspondence between the parties on the question of acreage before the first suit, and the opinion in that suit considered the subject. Held, that the bill could not be maintained on the ground of newly discovered matter.</p> <p>¶ 4. See Equity, vol. 19, Cent. Dig. § 1110.</p>

<p>1 Contracts — Eight of Eescission — Construction—Mutuality.</p> <p>A contract for the purchase of growing hops provided that the buyer should have the right to examine the condition of the hops before picking, to determine whether they would produce the quality called for, “and if at such time they should on such examination ascertain” that the growing hops were not in the condition required they might terminate the contract. Held, that the quoted clause of the contract did not confer on the buyers authority to arbitrarily decide as to the quality of the hops, so as to render the contract void for want of mutuality.</p> <p>¶ 1. Mutuality in contracts, see note to American Cotton Oil Co. v. Kirk. 15 C. C. A. 543.</p>

<p>On Review of Ruling of Referee.</p>

<p>1. Foreign Judgments — Conclusiveness—Austrian Courts.</p> <p>A judgment of a court of Austria in a suit in which it had jurisdiction of the subject-matter and the parties will be accepted by the courts of the United States as conclusive between the parties of the matters adjudicated.</p>

<p>1. Depositions — Complainant—Interest of Witness — Documentary Evtdecne —Refusal to Produce — Striking and Opening Deposition.</p> <p>Where a witness whose deposition was taken was one of the complainants in the suit, and the only object for which a written contract was desired was to show the interest of the witness, his refusal to produce such contract was no ground for striking his deposition,'or to open the same that he might be compelled to produce and be examined concerning it.</p>

<p>1. Customs Duties — Grass Piquets.</p> <p>Grass piquets, consisting of stalks of oats or of wheat, cut in the milk, and grasses dyed to imitate their natural color, mixed with palm leaf and other artificial leaves, bound at the ends of the stems with wire, in all about 15 inches in length, to be used for millinery purposes, are not taxable for duty under Revenue Act July 24, 1897, par. 449, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], as manufactures of grass, palm leaves, straw, weeds, etc., but are properly assessed at 50 per cent, ad valorem under paragraph 425, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], as artificial or ornamental grains, leaves, and flowers, and stems or parts thereof, not specially provided for.</p>

<p>Motion for Order of Substitution of Attorney for Plaintiff.</p>

<p>1. Actions — Death oe Complainant — Abatement.</p> <p>Where a suit was brought by plaintiff, in a representative capacity, on behalf of all others similarly situated, and before plaintiff’s death another was permitted to intervene, by order of court, and was made a party plaintiff, with plaintiff’s knowledge and consent, the action did not abate by plaintiff’s death.</p> <p>2. Same — Sale op Stock — Stay—Laches.</p> <p>Where defendant advertised certain stock for sale on December 27, 1902, naming February 10th as the day of sale, and complainant made no application for an injunction to restrain the sale until February 5th, In the absence of anything tending to excuse the delay, plaintiff was guilty of such laches as deprived him of the right to stay the sale.</p>

<p>1, Customs — Revenue—Chalk—Rate of Duty.</p> <p>Precipitated chalk, dried and bolted, and imported to be used for making tooth powder, is not- taxable at one cent a pound, under paragraph 13, Act July 24, 1897 (30 Stat. 152 [U. S. Comp. St. 1901, p. 1627]), “as chalk (not medicine nor prepared for toilet purposes), when ground, precipitated naturally or artificially, or otherwise, prepared,” but is taxable under the last clause of the section, at 25 per cent, ad valorem, as manufactures of chalk not specially provided for.</p>

<p>1. Customs Duties — Trimmings.</p> <p>Goods woven wholly from silk from 4 to 12 inches wide, and used directly in these widths for trimming women’s hats, etc., are not assessable as trimmings, under paragraph 390 of the act of July 24, 1897 (30-Stat. 187 [U. S. Comp. St. 1901, p. 1670]), not being trimmings until made into designs to be applied as trimmings,, or into trimmings as they are applied to articles being trimmed, but are assessable as manufactures, of silk, under paragraph 301.</p>

<p>1. Customs Duties — Spangled Horsehair Braids.</p> <p>Spangled horsehair braids, being very loose braids of the very long hair from the manes and tails of horses, carrying the spangles, which are the chief feature of the manufacture, are not assessable as “manufactures of wool ornaments with beads or spangles of whatever material composed,” under paragraph 371 of the act of July 24, 1897 (30 Stat. 185 [U. S. Comp. St. 1901, p. 1667]), but as articles “composed wholly or in part of beads or spangles, * * * but not composed in part of wool,” under paragraph 408 (30 Stat. 189 [U. S. Comp. St. 1901, p. 1673]).</p>

<p>1. Customs Duties — Linoleum.</p> <p>Linoleum of colored material, mixed in making, and taking such form as the pressure of the rollers and resistance of the materials give them, is not taxable for duty as “inlaid linoleum,” but as linoleum “figured or plain,” under Act July 24, 1897, par. 337 (30 Stat. 180 [U. S. Comp. St. 1901, p. 1662]).</p>

<p>L Customs Duties — Paper Books — Illuminated Lithographic Prints. '</p> <p>Paper books in tbe German language for the use of children, containing illuminated lithographic prints, weighing less than 24 ounces each, are taxable for duty under Act July 24, 1897, par. 400 (30 Stat. 188 [U. S. Comp. St. 1901, p. 1672]), and are not entitled to free entry, under paragraph 502 (30 Stat. 196 [U. S. Comp. St. 1901, p. 1681]), as books and pamphlets printed exclusively in a foreign language.</p>

<p>1. Customs Duties — Commercial Carbonate of Baryta.</p> <p>Commercial carbonate of baryta is exempt from duty under section 2 of the tariff act of July 24, 1897, providing that “the following articles when imported shall be exempt from duty”: “489. Baryta, carbonate of, or witherite” (30 Stat. 196 [U. S. Comp. St 1901, p. 1681]), and not dutiable at 25 per cent, ad valorem, under paragraph 3, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1627], as a chemical compound or salt not provided for.</p>

<p>1. Wrongful Attachment — Malice—Want of Probable Cause — Submission of Questions to Jury — Sufficiency of Evidence.</p> <p>Evidence in an action for damages for wrongfully and maliciously suing out writs of attachment examined, and helé to require the submission to the jury of the issues as to the want of probable cause and the existence of malice.</p> <p>2. Same.</p> <p>While the issue of probable cause in an action for wrongfully and maliciously suing out an attachment is, as a general rule, for the court, yet where it depends on disputed facts and conflicting evidence as to defendant’s good faith and just belief, it is for the jury.</p> <p>8. Same.</p> <p>In an action for wrongfully and maliciously suing out an attachment, the issue of malice per se is for the jury.</p> <p>4 Same — Advice of Counsel.</p> <p>Where an action for wrongfully and maliciously suing out an attachment is defended on the ground that the advice of counsel was sought and followed, the fact that the counsel was a director and secretary of the defendant, renders the issue of malice peculiarly for the jury.</p> <p>& Same — Motion for Directed Verdict.</p> <p>In an action for wrongfully and maliciously suing out writs of attachment, a motion for a directed verdict for defendant on the ground that “it appears from the evidence herein” that the defendant had probable cause, and that “it appears from the overwhelming weight of the testimony” that the defendant had no malice, is improperly granted, such matters being for the jury.</p> <p>O. Same — Amendment of Pleadings — Discretion.</p> <p>In an action for wrongfully and maliciously suing out an attachment, the refusal to permit plaintiff to file an additional count averring the wrongful and malicious prosecution of the common-law suit in which the writ issued, the amendment being asked to eliminate embarrassment which might arise upon defendant’s contention that the damages suffered were not solely the result of the attachment, is not an abuse of discretion.</p> <p>7. Same — Production of Books — Relevancy of Evidence.</p> <p>Rev. St. § 724 [U. S. Comp. St. 1901, p. 5S3], provides that in the trial of actions at law the federal courts may require the parties to produce books or writings containing evidence pertinent to the issue In cases and under circumstances where it might he done by the ordinary rules of chancery. Held, that a motion by defendant, in an action for wrongfully and maliciously suing out an attachment, to require plaintiff to produce its books so as to show its insolvency, inability to meet accrued obligations, and failure to make profits was improperly granted, neither plaintiff’s insolvency nor inability to meet accrued obligations being a defense.</p> <p>8. Same — Disposition of Attached Property — Relevancy of Evidence.</p> <p>In an action for wrongfully and maliciously suing out an attachment, evidence tending to show what disposition was made of the attached property after its release and bonding is irrelevant, and improperly admitted.</p> <p>O. Same — Value of Property.</p> <p>In an action for wrongfully and maliciously suing out an attachment on the property of a sawmill company, evidence of a witness as to how much he paid for the mill four years after the attachment is irrelevant, and improperly admitted.</p> <p>10. Same — Solvency of Plaintiff — Nonexpert Witness.</p> <p>In an action for wrongfully and maliciously suing out an attachment, an objection to a question propounded by defendant to a nonexpert witness as to what, supposing there had been no attachment, and the plaintiff had been unable to procure a certain loan, would have been its ability to continue payment of its obligations, including sums due defendant, is improperly overruled.</p> <p>11. Same — Malice—Probable Cause — Subsequent Events.</p> <p>In an action for wrongfully and maliciously suing out an attachment, evidence as to matters occurring after the issuing of the attachment is inadmissible to establish probable cause or show absence of malice.</p> <p>12. Same — Party’s Own Evidence.</p> <p>In an action for wrongfully and maliciously suing out an attachment, the testimony of defendants that they were not actuated by malice is properly admitted in conformity to the Florida rule admitting such evidence under a statute authorizing a party to a civil action to testify in his own behalf.</p> <p>18. Same — Instructions in Original Case.</p> <p>In an action for wrongfully and maliciously suing out an attachment, instructions given by the court in the original action, expressive of its opinion as to certain facts proved in that case, are properly excluded as irrelevant.</p> <p>¶ 12. See Malicious Prosecution, vol. 33, Cent. Dig. § 140.</p>

The plaintiff in error has been convicted under an Indictment framed under section 5508 of the Revised Statutes [U. S. Comp.

<p>1. Jurisdiction of Federal Court — Proof of Citizenship — Manner of Raising Issue.</p> <p>A complaint filed in a federal court contained the requisite allegations showing diversity of citizenship. The answer was a general denial. No plea to the jurisdiction was filed, and there was some evidence tending to show diversity of citizenship. At the conclusion of the case the de-’ fendant asked an instruction directing a verdict in its favor, but the court was not advised that the instruction was intended to challenge the jurisdiction of the court or the sufficiency of the proof to show diversity of citizenship. Held, that the instruction did not fairly challenge the jurisdiction of the court, and, as the record, considered as a whole, did not show want of jurisdiction, the refusal of the instruction was not erroneous,</p> <p>2. Street Railroads — Action for Collision with Vehicle — Pleading Negligence.</p> <p>A general allegation of negligence in a complaint in an action against a street railroad company to recover for injuries received by plaintiff by reason of a surrey in which she was riding having been struck by a street car, as that “one of defendant’s motor cars, run and operated by defendant’s motorman, * * * without notice or warning to plaintiff, was carelessly and negligently caused to run up to and against said surrey, * * * and that her said injuries were wholly occasioned by the carelessness and negligence of said defendant’s motorman in so operating the defendant’s said motor car as to cause it to strike said surrey,” is sufficient, in the absence of a motion to require it to be made more specific, to entitle plaintiff to prove and rely on any omission of duty on the part of the motorman in the management of the ear.</p> <p>8. Same — Instructions.</p> <p>The charge of the court, in an action to recover damages from a street railroad company for injuries received by plaintiff by reason of the vehicle in which she was riding having been struck by a ear, examined, and held not erroneous or misleading, as applied to the evidence, and, considered as a whole, to properly submit to the jury the questions of negligence and contributory negligence.</p> <p>4, Same — Duty of Care in Operating Cars.</p> <p>A motorman in charge of a street car is under the same obligation to exercise care and prudence to avoid collisions and to avoid injuring people as they are to exercise care not to get in way of cars, each having an equal right to the use of the street.</p> <p>5. Instructions — Refusal of Requests.</p> <p>A court is not required to give an instruction prepared by counsel, no matter how correct it may be in the abstract, if the same principle, or substantially the same principle, has been enunciated in its charge, though in different language.</p> <p>Sanborn, Circuit Judge, dissenting.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>¶ 4. Care required of motormen, see note to Stelk v. McNulta, 40 C. C. A. 361.</p>

1 Appeal from the Circuit Court of the United States for the Western District of Arkansas. On March 31, 1902, the Southwestern Telephone & Telegraph Company filed a petition in the circuit court for Sebastian county, in the state of Arkansas, to condemn an easement for the poles and wires of a telephone and telegraph business along the railroad and on the right of way of the St. Louis & San Francisco Railroad Company between Ft.

The writ of error in this case challenges a judgment which sustains a demurrer to a complaint made by Albert S. King, as receiver of the First National Bank of Frankfort, in the state of Kansas, against J. P. Pomeroy, a shareholder of that bank.

This is an action to recover damages for a breach of a contract. The plaintiff in error, hereafter styled the “plaintiff,” is an Ohio corporation, engaged in making fertilizers at its factory in Ohio. The defendant in error, hereafter referred to as the “defendant,” is a Tennessee corporation, engaged in mining phosphate rock at Attilla, Tenn.

<p>1. Bankruptcy — Provable Claims — Partnership Notes.</p> <p>Under Bankrupt Act, 30 Stat. 562, § 63 [U. S. Comp> St. 1901, p. 3447], providing that fixed liabilities of a bankrupt, evidenced by a statement in writing, absolutely owing at the time of the filing of the petition, may be proved and allowed against his estate, notes signed by a bankrupt firm, which included claims on which one of the partners was not primarily liable, were prima facie debts provable against the firm.</p> <p>2. Same — Debts of Partners — Payment by Firm — Consideration.</p> <p>Where, on the consolidation of the business of two firms and the creation of a new partnership, such partnership agreed to pay the debts of its individual members to the amount of stock of goods contributed to the firm by each member, the mutual promises of the several partners and the reception of the goods contributed by them to the firm was a sufficient consideration for the firm’s promise to pay such debts.</p> <p>8. Same.</p> <p>On the organization of a partnership by a consolidation of the stocks of two other firms, the partnership agreed to pay the debts of the individual partners to the extent of goods contributed by them. A settlement was had between the partners and plaintiff bank, to which they were indebted, and notes were given for an indebtedness of one of the partners for which the firm was not liable. Such notes thereafter matured, as did another indebtedness of the firm for overdrafts, etc., when a settlement was had by which new notes were given by the firm for the entire indebtedness, including the notes of such partner, and the time of payment was extended, and the old notes surrendered. Held, that such extension of time was a sufficient consideration to render the firm liable for the prior debt of the individual partner.</p> <p>4. Same-Insolvent Partnership — Payment of Individual Debts — Creditors Entitled to Object.</p> <p>Where all the creditors of a bankrupt partnership who were such at the time the firm agreed to pay the individual debt of one of its partners in consideration of an extension of time, both for the debt of such individual partner and the debt of the firm to the same creditor, had been paid in full prior to the filing of the firm’s petition in bankruptcy, the firm’s agreement to pay such individual debt could not be attacked by the trustee or other creditors on the ground that it was a fraud on the firm’s creditors.</p> <p>6. Same — Attorney’s Fee.</p> <p>Where notes given by a firm provided that if they were placed in the hands of an attorney for collection the makers and indorsers agreed to pay the holder an attorney fee of 10 per cent, on the amount due, and the maker thereafter became bankrupt, and the notes were placed in the hands of an attorney for collection, the attorney’s fee provided was properly provable as a claim against the bankrupt’s estate.</p>

This is an appeal from a final decree sustaining a plea of res adjudicata interposed by the defendant to a bill in equity filed by complainant to restrain the infringement of an alleged trade-mark, and in the alternative to restrain the defendant from unfair trade.

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>In the year 1901 John W. Warren, the appellee, was the plaintiff in a case In the district court of the First Judicial District, in the state of Montana, against the Helena Power & Light Company, a corporation, one of the appellants herein, the defendant in that action, to recover the sum of $5,000 for personal injuries sustained by the plaintiff on the 15th day of August, 1900, by reason of the alleged negligence of the defendant in operating one of its cars on a street railroad owned and operated by the defendant in the city of Helena, in the state of Montana. In this action Warren recovered a .judgment on June 4, 1901, against the Helena Power & Light Company for $2,500, together with costs amounting to $134.80. On the 15th day of October, 1901, the Central Trust Company of New York, the other appellant in this case, instituted the present action against the Helena Power & Light Company to foreclose a mortgage or deed of trust executed by the latter company on January 1, 1895, to secure the payment of certain coupon bonds issued by the company to the amount of $425,000. John W. Warren was made a party defendant to the suit, upon the allegation in the bill of complaint that he had or claimed to have some interest in or lien upon the real property of the Helena Power & Light Company, and it was alleged that his claim or lien was subsequent to the lien of mortgage or deed of trust. Warren was served with a subpcena in the action, and appeared and filed his answer to the bill of complaint, setting up the judgment obtained by him against the Helena Power & Light Company in the state court, and alleging that the said company had at all times since the 1st day of January, 1895, and down to the time of the filing of the complaint, been engaged in operating lines of street railway in and over the streets of said city of Helena, in the state of Montana, and furnishing electric and gas light to the city of Helena and the inhabitants thereof, the electric light being furnished by means of wires strung through the streets of the said city, and the gas by means of pipes and mains laid in the streets of said city, and that the company had for such purpose occupied the streets and conducted the said business under franchises granted to it by the said city under authority of acts of the Legislature of the state of Montana, and under franchises granted to it by virtue of the general laws of that state.</p> <p>The bill of complaint was taken as confessed by the defendant the Helena Power & Light Company, and upon the answer of the defendant Warren .a motion for decree notwithstanding his answer was made by the complainant. This motion the circuit court denied, and afterwards, on the 2d day of April, 1902, a decree was entered reciting that on and prior to January 1, 1895, the Helena Power & Light Company was, and at the date of the decree still continued to be, a corporation duly created and existing under and pursuant to the laws of the state of Montana; ■ that the mortgage or deed of trust set forth in the bill of complaint bearing date January 1, 1895, was a valid and subsisting mortgage, and constituted a valid and subsisting lien on the mortgaged property, premises, and franchises, subject only to the lien of the judgment of the defendant John W. Warren upon the real estate of the defendant the Helena Power & Light Company; that the claim of the defendant Warren was a lien upon the real property of the Helena Power & Light Company prior to the lien of said mortgage or deed of trust; and after ordering the foreclosure of said mortgage or deed of trust, and the sale of the property therein mentioned, it was provided in the decree that the proceeds of such sale, after deducting the costs of suit and expenses of such sale, should be applied to the payment in full of the judgment of the defendant John W. Warren in the sum of $2,663.89. with interest thereon to the date of payment from the date of decree at the rate of 8 per cent, per annum. Thereupon the appellants took the present appeal to this court from such part of said decree as adjudged that the claim of the appellee Warren was a prior lien to the mortgage or deed of trust, and whereby it was ordered that the judgment of the appellee Warren should be satisfied from the proceeds of the foreclosure sale before the payment of the amount found due upon the mortgage or deed of trust.</p>

<p>1. Review on Appeal — Variance—Waiver of Objection.</p> <p>The objection of variance must be made when the evidence Is offered, and the reason of .the variance pointed out, so that, if it appears that a variance would occur, the plaintiff may amend his declaration or bill of particulars; otherwise the objection is waived and cannot be raised in the appellate court.</p> <p>2. Contract — Right of Rescission — Waiver.</p> <p>The fact that an agent through whom orders were sent to defendant for its acceptance was interested in a firm for which he sent in an order, if unknown to defendant at the time it accepted such order, might entitle it to rescind the contract within a reasonable time after obtaining knowledge of the connection; but, where it afterwards filled a portion of the order without any objection, it waived the right to object on that ground, and the contract became binding upon it.</p> <p>8. Appeal — Review—Refusal of Instructions Asked.</p> <p>Where the record in the appellate court fails to show that the entire charge given is set out in the bill of exceptions, the presumption is that the court gave, in substance, all proper instructions, and that the refusal to give special instructions asked was without prejudice.</p> <p>¶ 1. See Pleading, vol. 39, Gent. Dig. § 1438.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This suit is in equity and its purpose is to obtain construction of a contract ih writing for the sale of certain real estate in Chicago, and to recover money as a balance due on the purchase price. The contract was made between the intestate Clarke and Elbert W. Shirk, the appellee, in March, 1891. The bill claims that the terms of the contract are uncertain, indefinite, and ambiguous, and the court is asked to construe the- contract so that its real meaning shall be that the consideration to be paid is $100,000, instead of $40,000, and that the balance of $60,000 was by the contract to be held by Shirk' as a penalty to secure the erection of the building named in the contract and the payment of any damages that appellee might sustain by reason of Clarke’s default in constructing the building.</p> <p>The record shows that Clarke, being the owner of property at 333 Michigan avenue, on the 28th day of May, 1891, entered into a contract of sale with appellee, which is set out in full in the bill. It provides that Clarke shall furnish appellee with an abstract of title, and, if on examination the title is found merchantable, Clarke will convey the lands to appellee by warranty deed on payment of $40,000, which sum the contract states shall be in full payment for the property. It also provides that the appellee shall make, and Clarke shall take, a 99-year lease of the property at an annual rental of $6,000, which lease was to be executed contemporaneously with the conveyance of the property and the payment of the purchase price of $40,000. The contract further provides as follows:</p> <p>“Said party of the first part [appellee] further agrees that if and when, within the time limited in said lease, which shall be before January 1, 1892, five stories of the building provided for in said lease, shall be erected and completed as far as it is possible to complete the same prior to the roof being on, and if and when all material and labor used and employed in said building up to that time is fully paid for so that the same shall be free from all liens and claims, he will pay to the said party of the second part, in further consideration for the conveyance aforesaid, the sum of $15,000 in cash; and if and when the roof is on said building and all material and labor up to that point paid for, so that the same shall be absolutely free and clear of all liens and claims of every kind whatsoever, he will pay to said party of the second part the further sum of $10,000; and if and when, within the time limited in said lease, the plastering in said building is entirely completed and paid for, so that the same shall be free from all liens and claims, he will pay to the said party of the second part the further sum of $10,000; and if and when the building specified in said lease shall be, within the time therein mentioned, entirely constructed and completed and ready for occupancy and entirely paid for, so that the same shall be absolutely free and clear of all liens and claims of every kind whatsoever, he will pay in addition to the aforesaid sums and as further consideration for the conveyance aforesaid, the sum of $25,000 in cash. Said party of the first part shall not, however, be required to pay the aforesaid sum of $15,000 until he shall be furnished with a certificate of such architect as shall be agreed upon, certifying that five stories of said building have been erected and that all materials and labor used in said building up to that point have been paid for as hereinabove stated; nor shall said party of the first part be required to pay the said sum of $10,000 until a certificate shall be furnished by said architect certifying that the roof of said building is entirely completed and paid for; nor shall said party of the first part be required to pay the said sum of $10,000 until said architect shall furnish him with a certificate, certifying that the roof is on said building and that all material and labor used in said building up to that point has been paid for; nor shall said party of the first part be required to pay the said sum of $25,000 until skid architect shall furnish him with a certificate, certifying to the complete construction of'said building in accordance with the terms and conditions of said lease, and that the same is ready for occupancy and entirely paid for and free and clear of all claims and liens as hereinbefore stated, and that the fees and charges of said architect have been paid.</p> <p>“Said ninety-nine year lease shall provide for the erection by said party of the second part of a thoroughly fireproof apartment or flat building, which building shall cover the entire width of the front of said lot and shall not be less than eighty-five feet in depth. Said building shall be constructed of steel, brick, terra cotta and granite.”</p> <p>“The principal cause moving said party of the first part to purchase the aforesaid land, is the execution of the aforesaid lease and the expectation that the building therein specified will be fully erected and completed in conformity with the terms and conditions of said lease, so that the same will be a substantial and adequate security for the payment of the rent therein specified and the performance of the other conditions in said lease contained on the part of said lessee; and it is expressly understood and agreed that the said sum of $40,000 which is to be paid by the said party of the first part upon the delivery to him of the deed of said real estate, is and shall be in full payment and satisfaction of the whole purchase price of said land, and that the payment of the said additional sums of $15,000, $10,000, $10,000 and $25,-000 are to be made by said party of the first part only if and when said party of the second part shall become entitled thereto by the erection and construction by said lessee of the building specified in said lease and at the respective times hereinbefore in that behalf stated; and that in such case the aforesaid sums are to be taken and considered as additional consideration for the said land because of the erection and construction of the said building in accordance with the terms and provisions of said lease, and for no other reason; and that unless said party of the second part shall become entitled to the payment of said sums respectively as aforesaid the said party of the first part shall be under no obligation of any kind to make any further or other payment or consideration for the said land except the said sum of $40,000.”</p> <p>It is then alleged that the title was examined and found merchantable, and the property was conveyed by Clarke and wife to appellee, and that the consideration of $40,000 named in the contract was paid, though the consideration named in the deed was $100,000.</p> <p>It is also alleged that the lease was executed by the parties, and that shortly thereafter Clarke caused plans and specifications to be made, and entered upon the construction of the building provided for in the lease and contract; and that the building was begun about September 1, 1891, but that shortly afterwards Clarke died intestate, and that on the 2d day of November following his widow, Elizabeth Clarke, one of the complainants, was appointed administratrix by the probate court of Cook county, and she as administratrix, and the other complainants as heirs, of Clarke, prosecuted the work until about January 1, 1892, when they permanently abandoned the enterprise on account of the financial condition of the estate and certain alleged disputes about the plans and specifications.</p> <p>It is then alleged that when the work was abandoned Clarke’s estate had become involved in liabilities on contracts for work and materials to an amount exceeding $40,000. It is also alleged that about July 1,1892, appellee served notices upon appellants of an intention to forfeit the lease because of their failure to construct the building; and that he did afterwards, in pursuance of the provisions of the lease, declare such forfeiture and take possession of the property.</p> <p>It is then alleged that at the time of the execution of the contract it was understood and agreed between the parties that the purchase price to be paid for the land was to be $100,000, and that it was reasonably worth that sum. There is no charge in the bill of fraud or mistake. The court is simply asked to construe the contract, the claim of complainants being “that the terms, stipulations, and conditions in said contract are uncertain, indefinite, and ambiguous; and that more particularly the terms, stipulations, and conditions with reference to the payment1 of said $100,000 by said Shirk for the agreed purchase price of said premises are vague, uncertain, indefinite, and ambiguous in their meaning.” The complainants claim that the true meaning of the contract is that the consideration to be paid by the defendant (appellee) for the conveyance of the land was $100,000, and that the $00,000, balance of purchase money, was the money of Clarke, held by defendant as a penalty to secure the erection of the building and the payment of any damages that he might sustain for any defect in its erection; that he has not sustained any substantial damage by the failure of • complainants to erect the building, but if he has they are ready to pay them. By the prayer for relief the court is asked to decree that the purchase price agreed to be paid was $100,000; that the $60,000 is the property of the complainants, and held by the defendant as a penalty, as before stated. A general demurrer to the bill was sustained by the court below, and a decree rendered dismissing the bill, from which decree the appeal is taken.</p>

<p>L Foreign Corporations — Contracts—President—Authority—Evidence.</p> <p>Where a corporation executed a certificate under seal which recited that P., who signed the same as president, was the president of such corporation, and that the certificate appointed certain persons in another state as the corporation’s agents on whom process might be served, as required by the laws of such state, such certificate was admissible as evidence that P., who signed the contract on behalf of the corporation, was in fact its president.</p> <p>2. Same.</p> <p>In an action on a contract with a foreign corporation, evidence that plaintiff had been requested to go to the corporation’s office, and there attended a meeting of the board of directors, which was held in the office of the person who signed the contract as president of the corporation, which was in connection with the corporation’s office, was admissible.</p> <p>8. Same — Validity of Contract — Estoppel to Deny.</p> <p>Where a corporation accepted the benefit of a contract executed by its president in its behalf, and repeatedly recognized the contract by payment of a large part of the consideration, it could not question the validity of the contract after full performance by the other party thereto.</p> <p>4 Same.</p> <p>In an action on a contract with a foreign corporation for the construction of an irrigation canal, evidence as to what occurred at a meeting held in the office of the alleged president, adjoining the office of the company, attended by persons purporting to be directors of the company, and letters purporting to be written at the company’s office, and signed by persons transacting its business there, and in control of its funds, was admissible.</p>

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

The complaint alleges, in substance, that on the 12th day of July, 1900, the plaintiff, in company with Henderson and Dollarhide, at the invitation of the defendant railway company and W. S. Morris, entered a car loaded with ice, which had been set out on a side track at the town of Dequeen, Ark., for the purpose of unloading the ice into W. S. Morris’ icehouse, situated a few feet from the side track on which the car stood; that for the purpose of unloading the ice the…

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

In Equity. Suit for unfair competition in trade. This is a suit by the Bissell Chilled Plow Works, an Indiana corporation, engaged in the business of selling plows and wood pulp of its own manufacture at South Bend, Ind., against the T. M. Bissell Plow Company, a Michigan corporation, engaged in the business of selling plows of its own manufacture at Eaton Rapids, Mich., and certain officers thereof.

At Law. Plaintiff was a resident of Louisville, Ky., and defendant was a stock broker in New York. His brother S. C. Henning, while not connected with defendant in partnership, executed most of his orders on the stock exchange of New York through defendant. Plaintiff had for years bought and sold stock through both offices as a matter of convenience, sending his orders to New York over the private wire of S. O. Henning.

<p>1. Judgment on Failure to Answer — Hearing as to Damages — Stipulation.</p> <p>In an action for personal injuries, it was stipulated that a trial should be had “hy the court, without jury, to assess the amount of damages, if any, to which the plaintiff is entitled in the suit; the. defendant filing no answer and making no defense on the question of negligence, and the procedure to be in all respects in accordance with the provisions of section 249 of Hill’s Annotated Laws of Oregon, as amended (section 185, B. & O. Comp. 1901),” etc. Eeld, that there was not only an admission of negligence, hut of injury as the result of such negligence, and at least nominal damages.</p> <p>S. Damages — Simulating Injury — Evidence—Sufficiency.</p> <p>Evidence examined, and held insufficient to establish that injury to a passenger in a railroad collision, apparently resulting in hysteria, accompanied by a contracture of the right foot, was simulated.</p>

<p>Proceedings for Contempt of Court against J. Jenkins Hucks and others. On rule to show cause, and returns thereto.</p>

<p>At Law. Action for damages for breach of contract. On motion of defendant for direction of verdict.</p>

<p>On Question Certified by Referee.</p>

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

<p>1. Collision — Steamers Meeting in Narrow Channel — Violation of Rules.</p> <p>A steamer passing down a river met two steam launches made fast together. The steamer gave a signal of two whistles, and, receiving no answer, starboarded her helm, and turned toward the left-hand side of the channel, a collision occurring shortly afterward, in which both launches were sunk and the persons on board drowned. Held, that the steamer was in fault for failing to have a lookout, and for violation of article 25 of the inland navigation rules (30 Stat. 101 [U. S. Comp. St. 1901, p. 2883]), requiring every steam vessel in narrow channels, when safe and practicable, to keep to that side of the channel which lies on her starboard side; and that, in the absence of evidence that it was not safe and practicable to do so, or of credible evidence of fault on the part of the launches, the collision must be attributed solely to such fault of the steamer.</p> <p>8. Wrongful Death — Measure of Damages Recoverable — California Stat* ute.</p> <p>Under Code Civ. Proc. Cal. § 377, authorizing actions to recover damages for wrongful death for the benefit of the next of kin, and the recovery of such damages as, under all the circumstances of the case, may be just, the ages and expectancy of life of the beneficiaries, where they were dependent in whole or in part on the deceased, may properly be taken into account in fixing the damages.</p> <p>¶ 2. See Death, vol. 15, Cent. Dig. § 113.</p>

In Admiralty. Libel in rem against a four-masted bark worth $63,000 for salvage, the bark having been found at anchor near a dangerous shore, in the stormy season, and in a leaking and helpless condition, and apparently deserted by her master and crew. Heard on the merits. Salvage aggregating $19,610 awarded to the owner of the rescuing vessel, her officers and crew.

<p>L Admiralty — Right to Cancel Charter — Fraudulent Representations.</p> <p>There are no fraudulent representations as to the capacity of a vessel authorizing the charterer to redeliver her, the charter being negotiated and concluded on the basis of a plan of her contained in a book of plans of vessels, and all statements as to capacity being qualified by notices in the printed descriptions of the vessel, “not accountable for errors in description,” and “particulars of steamer believed correct but not guaranteed.”</p> <p>3. Same — Absence of Bulkhead.</p> <p>Absence of a bulkhead between holds of a steamer is a mere matter of inconvenience, not justifying cancellation of the charter by the charterer, the plan of the vessel on which the charter was made showing no such bulkhead.</p> <p>8. Same — Ventilation of Bridge Deck.</p> <p>The charterers cannot cancel the charter because her bridge deck was not ventilated, this compartment being intended to be used, ordinarily, for coal space, which the owner was entitled to, and in lieu thereof some of the coal being carried on deck, and the space yielded to the charterer.</p> <p>4. Same — Breaking of Winches.</p> <p>The breaking down of the winches not affecting the seaworthiness of the vessel, and not requiring sufficient time for repairs to call for a deduction of hire, gives the charterer no right to cancel the charter.</p>

<p>1. Shipping — Construction of Charter Party — Liability for Delay in Discharging.</p> <p>A provision of a charter that “the cargo to be brought to, taken from alongside of the vessel at port of loading and discharge, at charterer’s risk and expense,” where no time was fixed for loading or discharging, docs not impose upon the charterer liability for delay in discharging caused wholly by a general strike among stevedores and teamsters at the port of discharge, for which he was in no way responsible, but merely requires him to discharge the vessel with reasonable diligence under the existing circumstances.</p>

<p>1. Admiralty — Salvage.</p> <p>A tug worth $35,000, which discovered drifting scows worth $25,000, that had broken from their mooring on a windy, freezing night, rendered services for five or six hours keeping them from the danger of being injured or injuring anchored vessels in the line of drift. She used all her power, and in doing so was damaged to the amount of $300. Held, that $2,000, with $200 for the damages, should be awarded her; one-third of the $2,000 to go to the master and crew in proportion to their wages, after allowance of $100 to the master.</p> <p>¶ 1. Salvage awards In federal courts, see note to The Lamington, 30 C. C. A. 280.</p>

<p>1. Bankruptcy — Sum Due State — Character as Tax — Decision of State Court — Effect—Propriety of Allowance.</p> <p>The annual license fee imposed hy P. L. N. J. p. 232, on corporations, having been held by the court of last resort of that state not to be a tax, but an arbitrary imposition laid on corporations as a condition of continued existence, is not provable under Bankr. Act, § 64, cl. “a,” Act July 1, 1898, 30 Stat. 563 [II. S. Comp. St. 1901, p. 3447], requiring the trustee to pay all taxes legally due and owing to the United States, state, etc.</p> <p>£. Same — Contractual Obligation.</p> <p>An annual license fee imposed by a state on corporations is not a contractual obligation attaching by implication from .the inception of the company, so as to be provable under Bankr. Act, § 63, cl. 4, Act July 1, 1898, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], including debts founded on contract, express or implied, against the estate of a corporation becoming a bankrupt before the fee for the year is assessed or collectible.</p>

<p>1. Board or Trade — Continuous Quotations — Use—Injunction.</p> <p>Where a board of trade sought to restrain the use of “continuous quotations,” which were alleged to have been surreptitiously obtained by defendant, and such term was defined in contracts between complainant and telegraph companies for the transmission of the same as meaning prices electrically and uninterruptedly transmitted from complainant’s exchange to such telegraph companies, and thence to their patrons at intervals of less than 10 minutes, and it did not appear that the quotations received by defendant were continuous quotations, as so defined, or that they had been received prior to their having been dedicated to the public, an injunction would not be granted pendente lite.</p>

<p>1. Bnii nr Equity — Waiver or Oath — Discovert.</p> <p>Upon a bill in equity which waives an oath to the answer, the complainant cannot have discovery.</p>

<p>1. Shipping — Construction op Charter Party — Canceling Date.</p> <p>A provision of a charter party requiring the vessel to sail in ballast for the port of loading within 48 hours after notice from the charterer is not a condition precedent, a breach of which entitles the charterer to cancel the contract, where there is a subsequent provision for a canceling date if the vessel shall not have arrived at the port of loading, and she arrives within the time so fixed. In such case the breach of the first condition merely gives a right of action for damages.</p>

Motion to compel a witness to answer cross-questions. He is being examined here under section 863 [U. S. Comp. St. 1901, p. 661]; the action — for libel — being at issue in the United States Circuit Court for the Eastern District of Wisconsin.

<p>1. Shipping — Negligent Obstruction of Slip — Liability for Injury to Another Vessel.</p> <p>A skip lying at a pier was in fault for stretching a hawser across a slip to the opposite pier in the night without any warning to other vessels having occasion to use the slip, and liable for the damage to another vessel caused by her striking the hawser without contributory fault.</p> <p>8. Same — Contributory Fault.</p> <p>The absence of a lookout on a tug while entering a slip helé not a fault contributing to her injury by striking a hawser stretched across the slip by another vessel, and which, owing to the darkness, could not have been seen by the lookout if he had been in his proper place.</p>

<p>1. Customs Duties — Appeal from Appraisement — Production of Importation.</p> <p>An importer is entitled to have no greater portion of the importation produced and examined on appeal to the board of general appraisers than Rev. St. § 2939 [U. S. Comp. St. 1901, p. 1938], directs shall be sent to the appraiser.</p> <p>2. Same — Discretion of Appraiser — Presumption</p> <p>An appraiser, in exercising discretion as to the production of packages for examination, is presumed to have acted fairly, unless the contrary is shown.</p>

<p>1 Customs Duties — Bindings.</p> <p>A narrow woven tape of cotton, used largely for covering the seams of underwear and waists, if a braid, within Tariff Act July 24, 1897, par. 339 (30 Stat. 181 [U. S. Comp. St. 1901, p. 1662]), placing a 60 per cent.. duty on braids not otherwise provided for, is also a binding or tape, and therefore otherwise provided for by, and dutiable under, paragraph 320 (30 Stat. 179 [U. S. Comp. St. 1901, p. 1661]), placing a 45 per cent duty on bindings and tapes.</p>

<p>1. Customs Duties — Albumen.</p> <p>An article which is not an albumen in the technical language of chemists, though one in common speech, is not within Tariff Act 1897, par. 245 (30 Stat. 170 [U. S. Comp. St. 1901, p. 1649]), putting a duty on “albumen, egg or blood,” but within paragraph 468 [page 1679], putting on the free list “albumen not specially provided for.”</p>

<p>1. Bankruptcy — Mechanics’ Liens — Effect of Bankruptcy of Principal Contractor.</p> <p>An adjudication of voluntary bankruptcy against a building contractor who has an unpaid claim for the construction of a building, and the appointment of a trustee for his estate before the filing of notices of lien by subcontractors, does not defeat the right of the latter to a lien given them by the mechanic’s lien law of the state, where they file their notices-within the time allowed by the statute, even in a state where it is held that a transfer of his claim by a contractor before notice filed defeats the subcontractors’ right to a lien, since the trustee takes title only for the purpose of distributing the property under the bankruptcy law, and the passing of the title to him does not enlarge the rights of general creditors as against special creditors to whom the state statute has given a lien; nor can the bankruptcy proceedings be used by the contractor to defeat the equitable provisions and purpose of such statute.</p>

<p>1. Bankruptcy — Assets Going to Trustee — Money Due on Building Contract — Liens op Subcontractors — Priority.</p> <p>New York Mechanic’s Lien Law (Laws 1897, p. 514, c. 418) confers on subcontractors liens “from the time of filing a notice of such lien,” and the courts of that state have held that such a lien is effective as to funds due from the owner only from the filing of notice, prior to which the contractor may assign his claim against the owner, to the prejudice of subcontractors. Held, that a contractor’s trustee in bankruptcy took a fund due from an owner free from the claims of subcontractors previously furnishing labor and materials, but notices of whose liens were not filed till after the bankruptcy petition.</p>

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

<p>1. Indemnity — Rights of Indemnitor — Appeal.</p> <p>An indemnitor, who has been vouched to defend in a suit brought against a surety whom he has agreed to indemnify, is entitled, at his own expense and charges, to fully defend such suit, and to conduct in good faith the whole litigation from beginning to end. Such litigation, in our opinion, includes the right to prosecute, under the laws and practice of the jurisdiction in which the suit is brought, an appeal from, or writ of error to, an adverse decree or judgment of the court of first instance.</p> <p>9. Same — Discharge of Indemnitor — Preventing Prosecution of Appeal— Question for Jury.</p> <p>An indemnitor of the S. Co., surety on a forthcoming replevin bond,, was notified to defend an action thereon, which he did. After an adverse judgment it was agreed that a writ of error should be sued out, and the indemnitor made arrangements with a surety company satisfactory to the S. Co. to execute the necessary bond. During the 10 days within which the bond could be' filed and the supersedeas obtained, the S. Co., with knowledge, acquiesced in the arrangements, and on the last day on which the bond could be executed a bond properly drawn and executed by the surety company was presented to the S. Co. for its signature, according to the uniform practice, when it for the first time refused to execute the bond or continue the litigation. The indemnitor sued out the-writ of error in the name of the S. Co., without a supersedeas, to which the S. Co. subsequently objected, and, after paying the judgment appealed from, notified the indemnitor that, unless further security was given, it would move to dismiss the appeal, whereupon the writ of error was discontinued by the indemnitor. Held, that whether such facts showed an unjustifiable interference by the S. Co. with the indemnitor’sright of appeal, sufficient to discharge the indemnitor, was for the jury.</p> <p>1 Same — Evidence.</p> <p>Where, in an action against an indemnitor to recover a liability of the-surety on a forthcoming replevin bond, defendant claimed that the surety’s acts in preventing an appeal from the judgment against the-surety on the bond were influenced by the fact that the surety’s directors-were interested in the enforcement of the judgment in replevin, and that such judgment was for their use and benefit, evidence as to who the-surety’s directors were, and who were the real parties interested in the judgment, was admissible.</p> <p>Acheson, Circuit Judge, dissenting.</p>

The High Peak placer mining claim was duly located January 1, 1898, •by the grantors of the defendant in error. On the 26th of December, 1899, the original locators of the claim commenced to do the assessment work for that year.

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

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

Charles F. Macgregor, the plaintiff in error, brought an action against the Union Life Insurance Company of Omaha, Neb., the defendant in error, to recover damages for the breach of a contract, which was as follows: “This agreement, made and entered into, by and between the Union Life Insurance Company, of Omaha, Nebraska, party of the first part, and C. F. Macgregor, of the city of Kansas City, and the state of Missouri, as party of the second part, witnesseth: “The said…

United States for the Northern District of Illinois. The American Preservers Company, a corporation of the state of West Virginia, on May 11, 1891, brought suit in replevin against Andrew D. Bishop in a court of the state of Illinois, and caused a writ to be therein issued, directing the sheriff to take certain described property from the possession of Bishop and to deliver the same to the plaintiff in the writ, upon receiving proper bond in double the value of the property,…

<p>Public Mineral Lands — Cutting Timber — Statutes—Construction.</p> <p>Act June 3, 1878, 20 Stat 88 [U. S. Comp. St. 1901, p. 1528] section 1, provides that all citizens of the United States, bona fide residents of specified states and all other mineral districts of the United States, are authorized to remove timber on public mineral lands not subject to entry except for mineral entry, for building, agricultural, mining, and other domestic purposes. Held, that such act authorized the removal of timber not only from land on which mining claims had been located, or in which mineral has actually been discovered, but also On other lands lying in close proximity, or in the neighborhood of such mining claims, having the general character of mineral lands.</p> <p>2. Same — Rules of Interior Department — Compliance—Burden of Proof.</p> <p>Act June 3,1878, 20 Stat. 88 [U. S. Comp. St. 1901, p. 1528] section 1, authorizes the cutting of timber from public mineral lands, subject to such rules and regulations as the Secretary of the Interior may prescribe: and section 3 [U. S. Comp. St. 1901, p. 1529] provides that any person violating the act or any rules or regulations of the Interior Department shall be punished, etc. Held, that the burden was on the defendant in an action by the United States to recover for the value of timber cut from the public domain, in which it claimed that the cutting was justified by such statute, to show that it had complied with the rules and regulations established by the Interior Department in that behalf, and, where there was no evidence of-a compliance with such rules and regulations, a verdict in favor of defendant could not be sustained.</p>

<p>1. Equity — Relief Against Forfeiture — Oppressive Conduct in Procuring Appointment of Receiver.</p> <p>A hotel company which had leased its hotel, acting in concert with a company which had made a conditional sale of the furniture therein to the lessee, to be paid for in installments, instituted a suit in equity against the lessee, alleging his failure to pay two monthly installments of rent, and obtained the appointment of a receiver, without notice, who took possession of the hotel and its contents, including the furniture and the funds on hand. At that time the lessee was not in default on the furniture, and had paid a large part of the purchase money. An installment which came due the next day, however, was not paid, and the seller declared a forfeiture of the contract under its terms, and filed an intervening petition in the suit, claiming to be the absolute owner of the furniture, and asking that its rights as such be protected. The lessee assigned his interest in the furniture contract to appellants, who held a mortgage thereon; and they offered to pay the installment due the seller, which was refused. They then filed an intervening petition, tendering payment of the installments remaining due, and asking protection of their rights as assignees of the contract. The remedy at law of the plaintiff in the suit was adequate under the lease, and no sufficient showing was made to justify the appointment of the receiver. Held, that the parties concerned in instituting the suit having taken the property into a court of equity by an unusual and unauthorized proceeding, which itself apparently caused the default in the furniture payment, upon which the forfeiture was declared, the court should exercise its powers to protect the equitable rights of all other parties in interest, and that, on the facts shown, appellants were entitled to a decree permitting them to pay into court the remainder due on the furniture contract, and to become the owners thereof.</p>

<p>1. Aliens — Exclusion—C mnese — Statutes—Expiration—Penalties.</p> <p>Act July 5, 1884 (23 Stat. 117, c. 220 [U. S. Comp. St. 1901, p. 1305]). prohibited any person from aiding or abetting the landing of any Chinese person not lawfully entitled to enter the United States, and declared that the act should be in force for 10 years. On May 5, 1892, before the prior act had expired, the laws relating to the exclusion of Chinese were re-enacted for a further period of 10 years. Rev. St. § 13 (Act Feb. 25, 1871, c. 71, 16 Stat. 432 [U. S. Comp. St. 1901, p. 6]), declares that the repeal of any statute shall not release or extinguish any penalty incurred thereunder, unless the repealing act shall expressly so provide, but such statute shall be treated as remaining in force to sustain any action or prosecution for the enforcement of such penalty. .Held, that where an offense against the exclusion act was alleged to have been committed on February 15, 1902, an indictment therefor not brought until after the expiration of the time limited by the act of May 5, 1892 (27 Stat. 25, c. 60 [U. S. Comp. St. 1901, p. 1319J) was not demurrable, since the exclusion act was continued in force as to such offense by section 13.</p> <p>2. Same.</p> <p>Act May 5, 1902, expressly continuing in force all laws prohibiting and regulating the coming into the country of Chinese persons, did not create a new law nor repeal any of the laws then in existence, but continued in force, without interruption, the Chinese exclusion act of May 6, 1882 (22 Stat. 58, c. 126), as amended by act July 5, 1884 (23 Stat. 117, c. 220 [U. S. Comp. St. 1901, p. 1305]), and extended for 10 years by act May 5, 1892 (27 Stat. 25, c. 60 [U. S. Comp. St. 1901, p. 1319]).</p> <p>8. Same — Indictment—Sufficiency.</p> <p>In a prosecution for aiding and abetting the landing of certain Chinese, prohibited by act July 5, 1884, an indictment charging that defendants did unlawfully and knowingly land, and aid and abet in landing, in the United States, from a certain foreign steamship specified, then lying at the port of T., three certain male Chinese laborers, named, each of whom was not lawfuly entitled to enter the United States, which had! previously been brought on such steamship from the empire of China,, was not demurrable for failure to set out the facts constituting the alleged unlawful landing.</p> <p>4. Same.</p> <p>Where, in a prosecution for aiding and abetting the illegal landing of Chinese laborers, the indictment alleged that the landing was effected from a foreign steamship lying in the port, of T., and that such laborers had been brought into the United States at such port on such steamship from the empire of China, it was not objectionable in that it showed that the Chinese alleged to have been landed had already entered the United States.</p> <p>5. Same — Repugnancy.</p> <p>Under act July 5, 1884, prohibiting any person from aiding or abetting the landing of any Chinese person brought into the United States from any vessel, an indictment charging defendants with “aiding and abetting.” and immediately thereafter charging them with “landing” Chinese, was not objectionable for repugnancy, since, as defendants were liable as principals for aiding and abetting the commission of the offense, the further charge of “landing the Chinese” was surplusage, and not repugnant to the other charge.</p> <p>¶ 1. Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.</p> <p>8. Same — Knowledge.</p> <p>Act July 5, 1884, provides that any person who shall "knowingly” bring into or cause to be brought into the United States, or aid or abet the landing in the United States, from any vessel, any Chinese person, etc., shall on conviction be punished. Held, that the word “knowingly,” as so used, referred to knowledge of the fact of landing and not knowledge that the Chinese landed were not legally entitled to enter the United States.</p> <p>7. Same — Appeal—Review—Objection in Trial Court.</p> <p>An objection to an indictment on the ground of repugnancy cannot be reviewed on appeal when it was not raised in the Circuit Court</p> <p>8. Same — Negativing Exceptions.</p> <p>An indictment for violation of Chinese exclusion act 1882, as re-enacted by act April 29, 1902 (32 Stat. 176, c. 641), declaring that all laws now in force prohibiting and regulating the coming of Chinese persons be, and the same are, re-enacted, extended, and continued, so far as the same are not inconsistent with treaty obligations, was not objectionable for failure to charge that the Chinese alleged to have been landed in violation of the act were not entited to land by virtue of treaty obligations.</p> <p>V 7. See Criminal Law, vol. 15, Cent. Dig. § 2627.</p>

This action was brought by the Rumford Falls Paper Company, the defendant in error, against the Pulitzer Publishing Company, the plaintiff in error, to recover a balance of $4,312.36, which was alleged to be due to the paper company from the publishing company for paper supplied to the latter company during the months of September, October, November, and December, 1897.

The plaintiff in error brought an action against the defendant in error in ejectment, and to recover damages upon three causes of action: First, for ■damages for trespass while the property was owned by the Butte & Boston Mining Company and its receivers, who were the predecessors in interest of the plaintiff in error; second, for damages for trespass while the property was owned by E. Rollins Morse, the successor in interest of the Butte & Boston Mining Company; and, third,…

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>This action was brought by Gunder Kettleson, a citizen and resident of the state of Washington, against the Bunker Hill & Sullivan Mining & Concentrating Company, a corporation organized and existing under the laws of the state of Oregon. The defendant’s mine is located in the state of Idaho. The plaintiff was engaged in this mine, and while so employed was injured. The present action is to recover damages for the injuries resulting from the alleged negligence of the defendant in-not providing a safe place for the plaintiff to do the work in which he was employed. The workings of the mine were being extended to an ore chamber that had been formerly opened, but not used for 18 months or more. The chute and manway leading up from one of the levels of the mine to this chamber were to be cleaned out, and the plaintiff had been directed by the shift boss to put in some lagging in the bottom of the chamber. It was alleged in the complaint “that the chute where this plaintiff was ordered and directed by the defendant to work sloped to the bottom thereof, a distance of 90 and more feet, at an angle of about 90 deg., and was dangerous and unsafe for this plaintiff and other workmen to work at said point and place; that this plaintiff then and there refused to work at said place, and notified the foreman of said mine in charge of this plaintiff (one Bishop) that the said place was unsafe and dangerous, and that plaintiff could not work at said point and place as aforesaid unless the defendant would provide suitable ropes, ladders, and support at said point and place, whereupon the said Bishop did then and there provide a certain rope, and caused the same to be attached to the timbers along the said chute, and did then and there promise and agree with this plaintiff, on behalf of said defendant mining company, that the said rope should be then and there maintained, and that a ladder should be placed in said chute, so as to render the place where the plaintiff worked safe and secure, and to provide proper and adequate means for this plaintiff to save himself in case that the rock, ore, débris, or earth in any manner gave way, and this plaintiff as aforesaid, at all the times herein mentioned, went to the said place, being assured that the same was safe, and that the said defendant would cause said rope to be and remain in place, and would forthwith place a ladder in said chute at the point where this plaintiff was working, and did then and there rely and believe and was assured by the said defendant that each and all of said precautions as aforesaid would be taken to render said place safe; and this plaintiff continued to work at said point and place solely on account of said assurances and promises on the part of the said defendant company, which plaintiff fully believed and relied upon.” The plaintiff further alleged that while he was working at said point and place “the rock, ore, and d&bris there, negligently and carelessly suffered to be and remain by the said defendant company, gave way under the feet of this plaintiff; that this plaintiff thereupon attempted to catch the said rope and the said ladder, and plaintiff would have been able to have so caught the same, had the same been at the point agreed upon between the plaintiff and defendant, and at which place the plaintiff then and there believed and relied upon its promise that the same would be, but that the said defendant mining company negligently and carelessly removed, or caused to be removed, or permitted to be removed, the said rope theretofore placed, and carelessly and negligently omitted to place said ladder at said place, or to take any precaution to preserve the safety of this plaintiff; that there was no other means or method whereby plaintiff could save himself, and at the time said ore, débris, and rock, carelessly and negligently permitted to be there and. remain by the said defendant company, gave way under the feet of this plaintiff, without any fault or want of care and caution on his part; that plaintiff fell and rolled over and along said chute a distance of ninety and more feet.” The answer of the defendant specifically denied these allegations in plaintiff’s complaint, and alleged “that with full, complete, and perfect knowledge of the chutes, manways, and stopes in defendant’s mine, and of the construction and condition thereof, and of the business of placing lagging in stopes, and of the danger attending such work in defendant’s said mine, voluntarily undertook to place some lagging in a stope in said mine at a point reached by a chute about sixty feet in length, the first or lower thirty feet of 'which is constructed at an angle of about fifty-five degrees, and the remaining thirty feet at an angle of about forty-two degrees; that said lagging was to be placed in a stope at the top of said chute; that said plaintiff, with knowledge of the said mine and of the business he undertook, and the dangers attending the same, voluntarily undertook said work, and assumed all the risks and dangers ordinarily incident thereto, among which the danger of falling down said chute was included; that before commencing work in said chute, said plaintiff, at the suggestion and upon the recommendation of the defendant’s foreman, under whose immediate direction’ said plaintiff was at work, placed a rope furnished by defendant along the side of said chute as a safeguard in ease of accident, which said rope was afterwards used by plaintiff; that a short time prior to the happening of the accident to the plaintiff hereinafter mentioned, without the orders, knowledge, or consent of the defendant, but with the consent and concurrence of plaintiff, carelessly and negligently given, said rope was removed and delivered to plaintiff’s fellow servants, and was not returned for the reason that plaintiff informed his said fellow servants that he had no need of the same; that while at work alone, placing said lagging, for some cause to the defendant wholly unknown, plaintiff fell, and, by reason of his neglect in permitting said rope to be removed and to remain away, slid from the top of the chute, a distance of about sixty feet, to the bottom thereof, and by said fall and sliding received whatever injury was sustained by him.” Plaintiff’s reply denied the new matter set forth in the defendant’s answer.</p> <p>The plaintiff testified in his own behalf that he was 44 years of age, and had been a miner for 27 years. He had been a foreman, and had worked at all kinds of work about a mine. He had been working in defendant’s mine about five or six days. It appears from the evidence that, with respect to the, place where plaintiff was at work, the first 30 feet of the chute from the level below passed up through solid rock, requiring no timbering, and a ladder was used in the manway adjoining the chute. Above this to the ore chamber in which plaintiff had been set to work, some 31 feet or more, a log crib had been constructed, with two compartments — one for an ore chute as an extension of the chute below, and the other as a manway, corresponding to the manway below; but the upper manway had been closed, and access to the ore chamber through the upper section was by way of the log-cribbed chute. The log. cribbing had interstices between the logs, in which the foot could rest when the miner' or other workman was ascending or descending the chute. The testimony is conflicting as to the angle of the chute. The plaintiff claims that the angle of the chute was about 90 deg., or nearly perpendicular. The defendant claims to have ascertained by actual measurements that the lower section of the chute was 30 feet in length, and had an angle of 44 deg., and the upper section was 31 feet in length, and had an angle of 41 deg. The plaintiff’s testimony concerning the accident is as follows: “I was working there about five days in the other place, and Mr. Bishop, he came one morning to me and says, ‘Mr. Kettleson, we want you over there on a new job — over in the chute.’ For 35 feet from the bottom of the chute, it had to be picked down and shoveled, and take it down to the mill. He says, T will go up and show you another place there,’ 35 or 40 feet further up. ‘You go up there, and there has rotten timbers been lying there, and that is like this, about forty-five degrees’ [indicating]. You had to go up on this rotten timber, and then into a hole that had been caving down — old rock — and you had to crawl in this hole, and I had to put in new lagging to protect the ground. I went up there, and Mr. Bishop went up. and he showed me this thing, and he asked me if I could do that kind of work. I said, T can do it if I take time.’ Me pud Mr. Bishop walked down again — down there about 35 feet. We were in the manway, then, you know, and Mr. Bishop slipped down and fell 15 or 20 feet. I says, ‘Have you hurt yourself?’ ‘No.’ He got up and went on, and 1 says, ‘Mr. Bishop, I can’t work here unless you get a rope and a ladder for me to put in for a few days until I get through this job.’ ‘All right, Mr. Kettleson,’ he says, ‘you go over there and get that rope and put that up, and I will help you.’ I went over and got the rope and put the rope in, and so the ladder didn’t go in. I went down and got some lagging and went up there, and< I put in three lagging that day. I asked Bishop if he wouldn’t put in a rope for me, and he says, ‘Yes.’ I had to have a rope and a ladder in there. If I had fell down or slipped on anything on this rotten ground, so I wouldn’t fall down and be killed. He says, ‘All right. Put that rope in.’ So I had to take up another lagging, and I drove my candlestick into the wall, and took another candle and went down to get the lagging. And these timbers was lying down there in this place, and I slipped on that, and I went down about fifteen or twenty feet, and tried to get hold of this rope, and the ladder wasn’t there, and the first thing I knew I knew I got senseless, and the ladder and rope wasn’t there, and I went down about seventy feet to the bottom of that chute.” He subsequently testified that he went down 35 or 40 feet. He testified further that with a rope and ladder the place where the accident occurred was safe, but without them he would not have worked there. It appears from the evidence that, after the plaintiff had placed the rope in the chute for his own safety, a fellow workman took it away, and the testimony on the part of the defendant was that the rope was taken away by plaintiff’s permission. The plaintiff, on the other hand, denied that he gave any such permission, and testified that Bishop admitted to him after the accident that he had taken the rope away; that it was needed over in another place to take up some lumber. The witnesses for the defendant contradict the plaintiff as to all the material facts of the case. Bishop, the shift boss, testifies that the rope was placed in the chute at his suggestion, so that the plaintiff would have something to take hold of; that the plaintiff got the rope and placed it in the chute; that on the following morning the witness saw plaintiff in the manway, and asked him where the rope was; he replied that it had been taken the night before to pull up some timbers; that witness advised plaintiff that he had better go and get the rope, so that he would have something to take hold of; and that plaintiff replied that he did not need it Plaintiff testified that in the conversation he had with Bishop on the morning after he had placed the rope in the chute, and about half an hour before the accident, he said to Bishop: “You are going down now. Will you please look out for that ladder, and get that solid there if I need it, and the rope there, too?” and Bishop said, “I will attend to it right away.” Bishop testified that a ladder was never mentioned, that there was no necessity for a ladder, and that he did not admit to plaintiff that he took the rope away. The defendant introduced a number of other witnesses in support of the claim that the rope was removed with the knowledge find consent of plaintiff. Upon this conflicting testimony the case was submitted to the jury, under the instructions of the court. The jury returned a verdict in favor of the plaintiff in the sum of $10,000.</p> <p>The case is brought here upon assignments of error relating to instructions to the jury, but the error mainly insisted upon in this court is the refusal of the trial court, upon, the conclusion of the evidence in the case, to instruct the jury that the evidence was not sufficient to sustain a verdict in favor of the plaintiff, and the refusal of the court to direct the jury to return a verdict in favor of the defendant.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.</p> <p>On motion to dismiss writ of error for want of jurisdiction.</p>

<p>1. Bankruptcy — Claims—Petition for Review.</p> <p>A proceeding may not be instituted by a creditor, without the concurrence'of the trustee in bankruptcy, to re-examine the allowed claims of other creditors; Bankr. Act 1898, § 57, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], covering the subject of proof, allowance, and re-examination of claims, being silent as to the party who may move for the reexamination; and general order 21, cl. 6 (32 O. C. A. xxiii, 89 Fed. x), providing that, when the trustee or any creditor shall desire the reexamination of any claim, he may apply by petition to the referee for an order for the re-examination, and thereon the referee shall make an order fixing a time for the petition, merely intending to permit a proceeding by a creditor prior to qualification of a trustee.</p>

The Steamer, “C. E. Bielman” on a voyage from Buffalo to Milwaukee,, carrying a cargo of three thousand tons of soft coal, struck and lodged September 17th, 1900, on Fisherman’s Shoals, two and one-half miles from shore, and fifteen miles from Milwaukee, the nearest port.

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

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

<p>1. Customs Duties — Gauge Glasses.</p> <p>Gauge glasses, consisting of sections of glass tubes ready for mounting, made by a workman inserting a hollow iron rod into a pot of molten glass, and blowing a bulb from the glass adhering to the rod, and again dipping the bulb into the pot to secure the adherence of enough more glass to draw out the tube to the required length, is “blown glassware,” within Tariff Act 1897, par. 100 (Act July 24, 1897, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633]), and taxable thereunder, and not under paragraph 112, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1634], as manufactures of glass not specially provided for.</p>

The bill is to restrain infringement of letters patent, No. 328,152, issued October 20th, 1885, to Joseph C. Barlow, for improvements in wire for check-row corn planters.

<p>In Equity. Suit for infringement of letters patent No. 470,644, for a converter for copper ores, granted to Pierre Manhes March 8, 1892. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 400,766, for a process for reducing aluminum, granted to Charles M. Hall, April 2, 1889. On motion for rehearing.

In Equity. Suit for infringement of letters patent No. 360,070 for a fluid pressure automatic brake mechanism granted to George Westinghouse, Jr., March 29, 1887. On motion for preliminary injunction.

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>Where a patent has been sustained at final hearing after strong opposition, a preliminary injunction against another infringer will not ordinarily be refused upon affidavits to a prior public use.</p> <p>2. Same — Defense of License — Measure of Proof Required.</p> <p>The defense of license from some one who is claimed to have had an interest in the patent sued on is one to be made out by the defendant by a fair preponderance of proof.</p>

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>A prior adjudication sustaining the validity of a claim of a patent, and finding infringement, is not sufficient to justify the granting of a preliminary injunction against another defendant, whose structure is different,' and does not appear to be within the claim as construed in the former suit.</p>

In Equity. Suit for infringement of letters patent No. 27,514, for a design for a clip or fastener, granted August 10, 1897, to William R. McIntosh. On final hearing.

<p>On Motion to Punish for Contempt.</p>

Motion to punish for contempt in disobeying an injunction against the making, using, or vending of any air brakes, valves for air brakes, apparatus or devices containing, embodying or employing the invention of claim 2 of the Boyden patent, No. 481,134.

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

This is a motion on the part of Albert Levi for an order to vacate an injunction heretofore granted by this court, which restrains him and others from interfering with the property of said bankrupt, and especially from interfering with or disposing of certain property of said bankrupt sold by the sheriff of Warren county, N. Y., in certain attachment suits brought- against said Goldberg, the bankrupt, by Jonathan Levi and Edward F. Cohn shortly before the bankruptcy…

<p>In Bankruptcy.</p>

<p>1. Corporations — Foreclosure Suit — Parties.</p> <p>In a suit by the trustee therein to foreclose a corporate mortgage, the court is not authorized to permit a bondholder to intervene and be made a party complainant merely for the purpose of litigating questions with a voluntary committee of bondholders formed for the purpose of reorganizing the corporation, since neither such committee nor its members are parties to the suit, nor has the court any power to make them parties for the purpose of controlling their action as a committee or as individuals in respect to such reorganization.</p> <p>2. Same — Voluntary Settlement by Majority of Bondholders — Rights of Minority.</p> <p>The fact that a majority of the bondholders of a corporation, through a voluntary committee, may compromise and settle their claims pending a suit for the winding up of a corporation or to foreclose the mortgage, does not prejudice the rights of the minority, who do not assent to such settlement, nor prevent the court, through its receivers, from enforcing for their benefit any rights which the corporation may have against delinquent stockholders or its promoters and directors.</p> <p>3. Same — Receivers—Suits to Enforce Liability of Officers and Promoters.</p> <p>A court which has appointed receivers for a corporation as an insolvent will not direct them to bring suits to ascertain and enforce the liability of promoters, officers, and directors of the corporation for the benefit of creditors until its visible assets have been liquidated and the fact and amount of deficiency is ascertained.</p>

<p>At Law. Action to recover legacy taxes paid under the war revenue act of 1898 (Act June 13, 1898, c. 448, 30 Stat. 448. [U. S. Comp. St. 1901, p. 2284]).</p>

<p>1. Shipping — Liability op Ship — Injury op Stevedore.</p> <p>A ship is not liable for an injury to a stevedore’s employs while helping to discharge cargo from the hold, caused by the sliding down upon him of bags of sugar piled next to the cargo which was being taken out, where the only negligence shown or charged was that one of the bags of sugar had been laid athwart ships, instead of fore and aft, by the stevedores who had loaded it, which might have caused the pile to fall, which fact was not shown to have been known to any of the ship’s officers.</p> <p>2. Same — Improper Stowage.</p> <p>The duty of guarding or warning the men engaged in discharging, a ship against danger caused by improper stowage, in matters of detail, is that of the contracting stevedores, rather than of the officers of the ship.</p>

<p>Indictment for Violation of Internal Revenue Laws.</p>

<p>1. Bankruptcy — Funds—Implied Trust.</p> <p>Where cotton was by mistake delivered to factors to whom it was not consigned, and by mistake of a warehouseman it was sold, and the proceeds deposited in bank to the factors’ account, and subsequently, on bankruptcy of the factors, a balance greater than the amount of the cotton passed from the bank to the bankrupt estate, the owner of the cotton was entitled to the value thereof.</p>

<p>Petition of Creditors for Review of Referee’s Finding.</p>

<p>1. Sawmill Lien — Sash and Door Factory.</p> <p>A sash and door factory is not a sawmill within the meaning of Civ. Code Ga. 1895, § 2809, providing that persons furnishing sawmills with timber, etc., shall be entitled to liens.</p> <p>2. Same — Petition—Demurrer.</p> <p>Where one claiming a lien on the property of a bankrupt on the ground that it was a sawmill alleged in his petition facts showing that the property was not a sawmill, the referee was justified, even on demurrer, in concluding that there was no sawmill, and therefore no lien.</p>

<p>Petition for Review by the United States, by the Collector of Customs for the Port of Boston and Charlestown, of Decision of Board of General Appraisers.</p>

<p>In Bankruptcy. On certificate of referee, Richard S. Hunter, sur claim of Chester National Bank.</p>

<p>1- Exchanges — Contract for Distribution of Quotations — Legality of Restrictions.</p> <p>A contract between a board of trade, having a property right in the quotations made on its exchange, and a telegraph company, relating to the transmission and distribution of such quotations by the latter, is not in violation of the anti-trust act of 1890 (Act July 2, 1890, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), as in restraint of trade and commerce, because of a provision that the quotations shall only be furnished to persons who sign an agreement to the effect that they shall not be used in the conduct of a bucket shop.</p>

These wits of error have been sued out to review the trial of an action brought by the Pressed Steel Car Company, a corporation, against the Eastern Railway Company of Minnesota, another corporation, to recover the unpaid part of the purchase price of 400 steel hopper ore cars, which the car company had made and delivered to the railway company under this contract: “This agreement, made and entered into this 19th day of December, A. D. 1899, between the Pressed Steel Car…

This is an appeal from a decree which dismissed a bill exhibited by Charles T. Trice and David A. Beamer' to charge the title of 1,925 acres of land, held "by the defendant James O. Comstock, with a trust for the use and benefit of the complainants. The pleadings contained many allegations and denials, but the evidence disclosed these facts: Trice and Beamer were engaged in dealing in real estate at Lamar, in Barton county, Mo.

For a period of about 20 years next preceding the year 1900, Simon Josephson was engaged in business as a merchant in Macon, Ga. During all that time the Exchange Bank of Macon (hereinafter called the “Bank”) was engaged in the same town in the banking business, and they had dealings for that period as banker and client.

The plaintiff In error was indicted for violation of the provisions of section 5492 of the Revised Statutes [U. S. Comp. St. 1901, p. 3705], which is as follows: “Sec. 5492.

By reason of rulings of the circuit court on demurrers, plaintiff in error was compelled to submit to judgment, and has sued out its writ for the reversal of that judgment. The errors assigned all have reference to rulings upon demurrers to pleas filed by defendant in error, and replications filed by plaintiff in error.

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

In Bankruptcy. This cause comes here upon appeal by the American Woolen Company, a creditor of the bankrupts, from a judgment of the District Court, rejecting its claim.

This is an appeal by Arthur B. Leach, a creditor of the bankrupt, from a decree (115 Fed. 158) rejecting the claim of appellant unless he should surrender to the trustee certain payments made to him by the bankrupt, which were held to be preferential.

<p>1. Direction of Verdict.</p> <p>The court below properly refused to direct a verdict when, notwithstanding the view which the court might take of the evidence, it was unable to say that a jury might not, without acting unreasonably, come to a different conclusion.</p> <p>2. Life Insurance — Warranties—Representations.</p> <p>A life policy provided that “insured * * * makes the following true and complete statements, which are hereby made a part of the contract of insurance, and if any of said statements shall be untrue in any respect, then this policy shall be null and void. * * * (j) I have never had * * * any bodily or mental infirmity * * * except as herein stated, (k) * * * I am in sound condition mentally and physically, except as herein stated.” Held to be warranties, and not mere representations resting on the belief of insured.</p> <p>8. Same — Good Faith — Effect.</p> <p>If the fact is not as stated by insured, the warranty is breached, and it makes no difference that insured acted in good faith in making the statement.</p> <p>4. Same — Right to Exact 'Warranties.</p> <p>A life insurance company may require the insured to warrant that he has never had any bodily or mental infirmity, except as stated in the contract of insurance, and that he is in sound condition mentally and physically, except as therein stated.</p> <p>5. Ei;b neo us Instructions — Cure of Error.</p> <p>An erroneous instruction given of the court’s own motion on a material point is not likely to be corrected by a subsequent correct instruction given by request, when the first instruction is not recalled or explained.</p> <p>¶ 3. See Insurance, vol. 28, Cent. Dig. §§’ 567, 568.,</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Ohio, in Bankruptcy.

Circuit Court of the United States for the District of Indiana.

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

This cause comes here upon appeal from a decree which awarded half damages to the libelants for an alleged breach of a contract of towage, as a result of which their scow No. 31 suffered loss and damage in a storm in Haverstraw Bay on the night of November 26, 1898.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Appeal from a decree of the District Court (ioo Fed. 139) in favor of John R. Crooks, libelant, for the sum of $37,-744.11, damages for collision, against the steamship City of Macon. From this decree the Ocean Steamship Company of Savannah, owner and claimant of the City of Macon, duly appealed to this court.</p>

<p>1. Customs Duties — Leghorn Citron — Fruit Preserved in Sugar.</p> <p>Leghorn citron, preserved by being cut in halves, boiled and soaked in salt water, freshened, and then covered with syrup and boiled down, and fresh sugar placed thereon, and the process repeated until the peel is thoroughly impregnated with the sugar and cured, is taxable as “fruits preserved in sugar,” under Tariff Act 1883. par. 302. 22 Stat. 504, and is not entitled to admission free under paragraph 704, 22 Stat. 519, as dried fruits not specifically enumerated.</p> <p>a. Same — Words and Phrases — Trade Meaning — Evidence.</p> <p>Evidence as to the trade meaning of a term used in the tariff act is inadmissible unless such meaning differs from the ordinary dictionary meaning of the term, or its meaning in common speech.</p> <p>8. Same — Customs and Usages — Existence—Conflicting Evidence.</p> <p>Where, on an appeal from a classification of imported citron for duty, the importer claimed that the term “fruits preserved in sugar,” as used in Tariff Act 1883, par. 302, 22 Stat. 504, was a trade term having a peculiar trade meaning as applied to preserved fruits, but the evidence as to such meaning, and whether it differed from the ordinary meaning of the term, was conflicting, it failed to show a general custom with regard to the use of such term, which would, therefore, be construed according to its ordinary meaning.</p> <p>¶ 2. Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. U. S., 18 C. C. A. 545.</p>

<p>1. Depositions — Dedimus Potestatem — De Bene Esse.</p> <p>An application to take depositions under a dedimus potestatem, as authorized by Rev. St. § 866 [U. S. Comp. St. 1901, p. 663], cannot be granted under Rev. St. § 863 [U. S. Comp. St. 1901, p. 661], which relates only to the taking of depositions de bene esse, and which section is expressly excluded from the operation of section 866.</p> <p>2. Same — Removal of Causes — Eilino Record — Time—Prior Commission to Take Depositions.</p> <p>Where an action was removed to the Circuit Court from a state court, and before the first day of the next succeeding term, within which defendant was required to file the record and appear, plaintiff applied for a commission to take the deposition of a witness, merely alleged to be a necessary and important witness and residing at such a distance that it was impossible to have him present in person, without any showing of necessity for haste in the taking of the testimony before the time for filing the record had expired, the commission was erroneously granted, and the deposition taken thereon inadmissible.</p>

<p>1. Limitation op Actions — Demurrer.</p> <p>Where the statement of plaintiff’s cause of action shows that plaintiff could not under any circumstances avoid the defense of limitations, such defense may be set up by demurrer in an action pending in Connecticut.</p> <p>2. Corporations — Deports—Failure to File — Liability op Trustees — Limitations — Application op Foreign Statute.</p> <p>Gen. St. Conn. 1888, § 1379, providing that “no suit for any forfeiture on any penal statute shall be brought, but within one year next after the commission of the offense,” does not apply to an action in the federal court sitting in Connecticut against trustees of a Montana mining corporation, residing in Connecticut, to recover debts of the corporation, as authorized by Civ. Code Mont. § 451, by reason of the trustees’ failure to file annually a specified report of the company’s business, as required by such section.</p> <p>3. Same — Statutes—Repeal.</p> <p>Comp. St. Mont. § 45, providing that in any action for a penalty or forfeiture, when the action is given to an individual, except where the statute imposing it prescribes a different limitation, the action shall be commenced within one year, was repealed by Code Civ. Proc. Mont. § 515, subd. 1, declaring that an action on a statute for a penalty or forfeiture, when the action is given to an individual, shall be brought within two years, and section 3482, declaring that, in all cases provided for by the Code, all statutes previously in force, whether consistent or not, were repealed and abrogated, unless expressly continued-</p> <p>4. Same.</p> <p>Under Code Civ. Proc. Mont. tit. 2, prescribing the time for the commencement of actions, and declaring (section 554) that such title shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law, Code Civ. Proc. Mont. § 515, providing that an action on a statute for a penalty or forfeiture shall be brought within two years, unless a different limitation is prescribed by the statute, has no application to such action.</p> <p>¶ 1. See Limitation of Actions, vol. 33, Cent. Dig. §§ 670, 671, 673.</p> <p>¶ 4. Limitation of actions against corporate officers, see note to Patterson v. Wade, 53 C. C. A. 7.</p>

<p>1. Bankruptcy — Labor Claims — Priority—Statutes—Construction.</p> <p>Rev. St. Ohio 1890, § 3206a, provides that, in all cases where property of an employer is placed in the' hands of an assignee or trustee, claims for labor performed within three months prior to the appointment of such trustee shall be first paid. Section 6355 declares that every person who shall have performed any labor “as an operative” in the service of an assignor shall be entitled to receive out of the funds, before the payment of other creditors, the full amount of wages due for such labor within 12 months preceding the assignment, but that such provisions shall not prejudice securities given or liens obtained in good faith, etc., with certain exceptions. Held, that such sections were not inconsistent, since section 6355 deals only with the fund in the hands of an assignor or trustee, and applies only to such laborers as are operatives, and, having been subsequently enacted, deprives such-laborers of the general preference created by section 3206a.</p> <p>2 Same — Mortgage Liens — Priority.</p> <p>Under Rev. St. Ohio 1890, § 6355, as amended by Act April 5, 1889, declaring a preference in the distribution of the proceeds of the property of an assigned estate in the hands of the trustee, in favor of every person who shall have performed any labor as an operative in the service of the assignor, for labor performed within 12 months preceding the assignment, but declaring that its provisions shall not prejudice securities given in good faith, for value, except certain judgments by confession, or security given with intent to create a preference or to secure a preexisting debt, other than on real estate for the purchase money thereof, which should be invalid as against such labor claims, the claims of operatives of a bankrupt were not entitled to priority in the distribution of its estate as against a mortgage executed in good faith to secure bonds issued for money loaned, and a bona fide assignment of the bankrupt’s equity in the bonds, executed more than six months before bankruptcy to secure a valid debt.</p>

The action is in ejectment by the United Breweries Company, a corporation created under the laws of the state of New Jersey, against the plaintiffs in error, to recover certain described real estate. Under a plea of the general issue, the cause was tried to a jury.

<p>1, Corporations — Payment for Stock in Property — Liability of Stockholders,</p> <p>Where, on the organization of a corporation by mutual agreement, full-paid stock was issued to the incorporators in payment for property transferred by them to the corporation, one of the incorporators who participated in such agreement, and who afterward became a creditor of the corporation, cannot assert its invalidity for the purpose of holding the other stockholders liable for unpaid subscriptions, on the ground that the property was not in fact equal in value to the par value of the stock.</p> <p>8. Same — Action Against Stockholders — Evidence.</p> <p>In such an action by the creditor against the other stockholders, where the agreement under which the stock was issued was pleaded as a defense, -parol evidence was admissible to prove the same, as was also a certificate of the stock issued to one of the defendants to show that by its terms it was full paid.</p>

<p>1. Bankruptcy — Creditor—Preference to Indorser of Check.</p> <p>A creditor holding a check given by his debtor, who transfers the same to a bank by indorsement, remains a creditor, within the meaning of the bankruptcy act, and the payment of the check to the bank after the debtor’s insolvency, and within four months prior to his bankruptcy, constitutes a preferential transfer of property to the indorser, under section 60a, c. 541, Act July 1, 1898, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443],</p> <p>2. Same — Preferences—Independent Debts.</p> <p>At the time a bankrupt became insolvent he owed a creditor a balance of account accruing prior to November, for which he had given a post dated cheek, and also an account accruing in December. Held, that the payment of the cheek thereafter constituted a preference, which affected the entire indebtedness, and not the payment of an independent debt, and that it must be surrendered to entitle the creditor to prove his account.</p>

<p>1. Customs Duties — Filled Glass Bottles.</p> <p>Glass bottles filled with merchandise at ad valorem rates, holding not more than a pint, are not subject to duty under Tariff Act 1894, par. 88 (Act Aug. 27, 1894, c. 349, 28 Stat. 513), as vials holding not more than a pint and not less than a quarter of a pint, or as “all other glassware.”</p>

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

<p>1. Telegraph Company — Call-Box Service — Right to Occupy Streets— Permission of Council — Necessity—Previous Decision — Law of the. Case — Compliance.</p> <p>On appeal from the granting of a preliminary injunction restraining a city from interfering with the construction of a district telegraph system in its streets, the injunction was vacated, and the cause remanded, the court holding that the complainant company should have made the usual application for a permit in accordance with the city’s regulations, and that it had no right to construct its works in defiance of those requirements. The company then petitioned subordinate city officers for a permit, and was informed that they did not have authority to issue one until the applicant had first obtained a permit from the common council. Held, that these facts failed to constitute a compliance with the previous decision.</p> <p>¶ 1. Rights of telegraph and telephone companies to use of streets, see note to Southern Bell Telephone & Telegraph Co. v. City of Richmond, 44 C. C. A. 155.</p> <p>2. Same.</p> <p>The determination of a legal question made upon reversing an order granting a preliminary injunction, becomes the law of the case.</p>

This is an appeal in a bankruptcy proceeding wherein the trustee set apart to the appellee Roberts the house and lot which he occupied as a homestead, which was appraised at $1,000, and which, under the Kentucky statute, was exempt. Several years prior to the bankruptcy proceedings, Roberts and his wife had placed a mortgage on this property for $600, upon which, at the time the homestead was set apart there was due $760.

<p>1. Collision — Steam Vessels Crossing — Failure to Conform to Signal Agreement.</p> <p>Where a ferryboat, which had stopped and reversed when her second signal of one whistle to a tug on her starboard hand, on a crossing course, was unanswered, afterward received an assenting and then a cross signal from the tug, and assented to the latter, but continued to go backward under reversed engines while the tug was attempting to pass astern of her in accordance with the agreement, she was in fault for the resulting collision, although her navigation up to that time had been careful, and the initial fault was that of the tug in confusing the signals.</p> <p>¶ 1. Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.</p>

<p>1. Patents — Infringement—Station Indicators.</p> <p>The Pierce patent, No. 254,429, claims 1, 2, and 3, for a station indicator, consisting of a case provided with apertures covered with glass', in which is placed webs having printed matter on each side, and moved by means of drums and rollers actuated by suitable mechanism, for the purpose of displaying the printed matter beneath the glass plates on each side simultaneously, are infringed by an indicator which accomplishes the same purpose in the same manner, and differing only in the mechanism for moving the webs.</p> <p>3. Same — Suit for Infringement — Injunction.</p> <p>Where it was shown that infringing machines were made hy a corporation under license from an individual defendant, based on a patent transferred to him by a second corporation by a contract requiring him to' build and operate a certain number of the machines, both the individual defendant and the second corporation were so connected with the infringement as to be properly included in the injunction.</p> <p>8. Same — Evidence.</p> <p>Where the articles of incorporation of a defendant corporation declared that one <of the purposes of its organization was “to own, manufacture, sell, and lease directory machines,” without describing or specifying them, oral testimony of one of the incorporators was admissible to show that the machines meant were those for which a patent had been applied for by one of the incorporators, and the same as those which were alleged in the bill to infringe complainant’s patent.</p>

<p>1. Patents — Suit for Infringement — Demurrer.</p> <p>Where a bill for infringement makes proferí of the patent, it will be regarded as a part of the bill, and will be examined on demurrer.</p> <p>2. Same — Novelty—Bitransit Railway System.</p> <p>The Carpenter patent, No. 570,451, for a bitransit railway system, is void for lack of patentable novelty.</p> <p>¶ 1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p> <p>See Patents, vol. 38, Cent. Dig. § 515.</p>

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

<p>1. Police Powers — Inspection Laws Affecting Interstate Commerce — Unlawful Means of Enforcement.</p> <p>Under the rule that the police power of a state cannot obstruct interstate commerce beyond the necessity for its exercise, state officers cannot accomplish, under the protection of a valid law, results which the state is forbidden to accomplish by legislation; and it is open to the courts to determine whether their action is within the lawful and constitutional powers conferred upon them by the statute, or whether it exceeds such powers, and amounts to an unconstitutional obstruction of interstate commerce.</p> <p>2. Same — Equity Jurisdiction.</p> <p>The Idaho sheep quarantine act of March 13, 1899, Sess. Laws, p. 452, provides that whenever the governor has reasons to believe that scab or any other infectious disease of sheep has become epidemic in certain localities outside the state he must, by proclamation, designate such localities, and prohibit the importation from them of any sheep into the state, except under such restrictions as, after consultation with the sheep inspector, he may deem proper. Held, that a hill by sheep owners, alleging that defendants, acting under a proclamation issued by the governor under such act prohibiting the importation of any sheep from an adjoining county in another state ,for the period of 40 days, prevented complainants from driving their sheep across the line into Idaho for pasturage on their own and the public lands within the state as they were accustomed to do each spring, and for shipment to market, stated a cause of action for equitable relief by injunction, where it also alleged that such sheep were free from disease, and had been so found by the United States inspectors; that there was no infectious disease epidemic on the range where they were or had been; and that the reasons stated in the proclamation for such prohibition were false and groundless, and were based on statements made by defendants and others for the purpose of excluding sheep of other owners, and securing a monopoly of the grazing on the public lands within the state; and where it also showed that the exclusion would work irreparable injury to complainants.</p>

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

<p>In Error to the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>This is an action brought by the United States on the bond of Moses P. Wyman, formerly agent of the Crow Indian Agency, in the state of Montana. In the original complaint it was alleged that on February 4, 1890, the agent was appointed, and that on April 1, 1890, he executed his bond and took his oath of office, and that he held said office until February 28, 1894; that during the time while he held said office there came into his hands directly from the United States $88,672.57, and from sales of property belonging to the United States, sold by him, $111,457.84, amounting in all to $200,130.41, which he received for the use of the plaintiff, of which sum he disbursed and accounted for $199,119.91, but did not account for or disburse the balance of $1,010.50, which sum he converted and appropriated to his own use, in breach of his trust and the conditions of his bond; that the plaintiff made demand upon the agent and his bondsmen for said balance; that on October 18, 1898, the said agent died in Pierce county, Wash., and the Fidelity Trust Company was appointed his administrator; that the plaintiff’s claim was duly filed with the said administrator for said balance, but was rejected and disallowed. With the complaint the plaintiff in error filed a bill of particulars, setting forth a statement of the account of said agent from April. 1, 1890, to February 28, 1894, showing a balance of $157.50 in the agent’s favor; but thereafter, in a supplemental account, made on September 26, 1896, charging the agent under his bond with the sum of $1,168.00, upon information purporting to show that in the fall of 1891 he contracted with one David G. Browne for the Indians of said agency to haul 200 tons of hay to Fort Custer for Browne, for which the Indians were to receive $5 per ton, and that for such hauling by the Indians Browne paid the agent for the Indians $1,168, which the agent never paid to the Indians, but appropriated to his own use; upon which, upon a statement of the whole account of said agent made by the Auditor of the Interior Department, Treasury Department, on July 14, 1899, a balance of $1,010.50 was found against him under his bond. The Fidelity Trust Company answered the complaint, and alleged that said agent, before the commencement of the action and during his lifetime, satisfied and discharged the plaintiff’s alleged claim by payment thereof. The defendants in error, Jessie J. Wyman and Nellie M. Browne, by leave of the court, intervened as the heirs at law of said Moses P. Wyman and also answered the said complaint. They alleged that “on or before February 28, 1894, the said Moses P. Wyman duly and lawfully paid out and expended all of the said sum of $1,010.50 for account of said plaintiff, as will more fully appear upon the trial for cause.” Thereafter the interveners moved the court that the plaintiff be required to set forth the terms of the bond, and to declare what the supposed moneys or funds were from which the balance of $1,010.50 was alleged to have been taken and appropriated by the said agent to his own use. The motion was allowed by the court, and thereupon the plaintiff filed an amended complaint setting forth the bond in haec verba, the condition whereof is as follows: “The condition of the foregoing obligation is such, that, whereas the President of the United States has appointed the said Moses P. Wyman to be agent for the Indians of the Crow Agency in Montana by commission dated February 4, 1890, and said Moses P. Wyman shall, at all times, during his holding and remaining in said office, carefully discharge the duties thereof, and faithfully disburse all public moneys, and honestly account, without fraud or delay, for the same and for all public funds, including funds designated in regulations of the Indian department as miscellaneous receipts, and moneys belonging to the Indians under his charge which shall or may come into his hands, and all other funds received by him by reason of his position as Indian agent, and for all public property placed in his charge, then the above obligation to be void and of no effect; otherwise to remain in full force and virtue.” The amended complaint alleged, further, that on July 14, 1899, upon a settlement of said agent’s account, duly made by the Treasury Department and the Auditor of the Interior Department, it was found and determined by said auditor that there was a balance due the United States from said Indian agent on account of such agency and upon said bond of $1,010.50, and a certificate to that effect was duly made by said auditor. The amended complaint proceeded to allege a demand upon the agent, and set forth the facts of his death, and the appointment of the administrator of his estate, and the due presentation of said claim to said administrator, and its rejection thereof. The Fidelity Trust Company, answering the amended complaint, admitted that on September 12, 1899, the plaintiff filed with said administrator its claim against said estate for $1,010.50, and that the administrator rejected the same, and that on March 8, 1900, the plaintiff again filed with the administrator the said claim, which was again rejected and disallowed. For a further and separate defense, the trust company alleged that before the commencement of the action, and during the lifetime of said Moses P. Wyman, the said Wyman satisfied and discharged the plaintiff’s alleged claim by payment thereof. The answer then proceeded to set up the defense that the action was barred by reason of the following facts: That on October 3, 1898, said Moses P. Wyman died, and on January 26, 1899, his will was admitted to probate, and the trust company was duly appointed administrator with the will annexed; that the administrator duly published notice to creditors of said estate, requiring them to present their claims within one year after the date of such notice, the first publication whereof was made on February 2, 1899; that on September 12, 1899, the plaintiff presented to said administrator for allowance its claim for $1,010.50, and the administrator indorsed said claim as rejected, and forthwith notified the plaintiff thereof; that on September 12, 1899, on the disallowance of said claim, the plaintiff presented the same to the superior eourt of the state of Washington for Pierce county, having jurisdiction of such matters, and the court disallowed the same; that this action was not begun within a period of three months after the rejection of said claim; that thereafter, on March 8, 1900, the plaintiff again presented for allowance the said claim, which claim was on said date duly indorsed as rejectéd, and the plaintiff was notified thereof; that said presentation on March 8, 1900, was not made within one year after the date of said publication of notice to creditors. To this second defense the plaintiff demurred, on the ground that the facts therein alleged constituted no defense, and the court’ sustained the demurrer. The interveners also answered the amended complaint, admitting the execution of the bond, but denying that the said Moses P. Wyman was indebted to the plaintiff in the sum of $1,010.50 or in any sum whatever, and they denied that the said supplemental account of July 14, 1899, as stated in the amended complaint to be between the said agent and the plaintiff, is duly stated as to the item of $1,1-68, wherein it is supposed that that amount or any amount of money whatever was in the fall of 1891, or at any other time, paid to the said agent in his official capacity by one David G. Browne for or on account of the plaintiff, or for which the agent was in any manner accountable to the plaintiff. The answer proceeds to allege that at the expiration of the term of office of said agent the United States was indebted to him in the sum of $157.50; that the account of said agent so stood until July 14, 1899, when the Interior Department received information' that said agent had in 1891 received $1,168 of one David G. Browne for account of the United States as such agent, and that upon this information a new and so-called supplemental account statement by direction of the Treasurer’s Department was made up against said agent by the auditor of that department for the Department of the Interior, by charging that amount additionally against said agent’s accounts, whereby the account was changed from one showing a balance of $157.50 in the agent’s favor to one showing a balance of $1,010.50 against him; that said supposed sum of $1,168 was never received by said agent from said Browne, but that it is true that in the latter part of the year 1891, while said Moses P. Wyman was Indian agent and acting as such, he was requested by one David G. Browne, who then had a government contract to furnish hay for the use of the government at Fort Custer, Mont., to take and receive from him, the said Browne, the sum of $1,000, to be held by said Moses P. Wyman upon his own personal and private account, and not as Indian agent, and for and on account of said Browne, to be by him, the said Wyman, paid out for and on account of said Browne to certain Crow Agency Indians owning and having teams of their own, a large number of whom had been hired by said Browne to haul 170 V25 tons of hay, at the rate of $5 per ton, from Dana’s Ranch, near the Grow Agency, to the government post at Fort Ouster; that on account of such hauling the agent paid out to the Indians $851.80 on account of their services so rendered to Browne, and for the remainder accounted to the said Browne. The answer sets up the further defense that the action is barred by reason of the facts so set forth in the answer of the trust company, to all of which portion of their answer a demurrer was interposed, which was sustained by the court.</p> <p>The case was tried before the court without a jury, and on the evidence adduced the court found, among other findings of fact, the following: “That on the 14th day of July, 1899, upon the settlement of his, the said Moses P. Wyman’s accounts, as such agent, made by the Treasury Department of the United States and the Auditor of the Interior Department thereof, it was found and determined by said auditor that there was a balance due the United States from said Indian Agent Wyman, on account of such agency, and upon said bond, the sum of $1,010.50, and a certificate to that effect was made by said auditor; that the item out of which this balance so certified grew was on account of money paid by a man named David G. Browne to Moses P. Wyman, Indian agent, to pay for the hauling of something over two hundred tons of hay by the Crow Indians under his charge, they to be paid for said hauling at the rate of five dollars per ton; that the Indians hauled the hay, though the amount thereof was ascertained to be less than two hundred tons; that the said Wyman did not pay the said money to the Indians, nor return the same to Browne, or account for it to the government; that the money intrusted to Wyman was the money of a private individual, to wit, David G. Browne; that no portion of it was drawn from the treasury of the United States, and that the government never had any right or claim to it.” Upon those findings of fact the court drew the legal conclusion that no part of the money in question ever belonged to or was due to the United States, and that the evidence offered on the part of the government failed to prove the particular breach of bond sued on and assigned in the complaint, and that the evidence offered on the part of the government in the case was inadmissible, incompetent, and wholly insufficient to prove the issue on its part This legal conclusion and the judgment so rendered are assigned as error.</p> <p>The court also found that the claim of the government is not barred by the state statute of limitations, regarding either the time of presenting a claim against the decedent’s estate or the time within which to bring an action for the rejection of such a claim. Judgment was rendered for the defendants in error; whereupon the plaintiff in error sued out the present writ, and the defendants in error, the said interveners, made joinder therein, and assigned as cross-errors that the trial court sustained the demurrer of the plaintiff in error to that portion of the answer to the amended complaint which set up the defense that the action was barred, and the defense that the court had no jurisdiction of the cause, for the reason that the plaintiff had prosecuted its claim and demand in the superior court of the state of Washington for Pierce county against the administrator of said decedent, and that the trial court erred in not holding that the moneys alleged to have been received by Moses P. Wyman from David G. Browne were received by him only as the bailee and agent of said Browne.</p>

<p>1. Taxation — Constitutional Provisions — Powers of Territory.</p> <p>Article 8, § 1, of the Constitution of the United States, requiring that “all duties, imposts and excises shall be uniform throughout the United States,” establishes the rule only for taxation by the federal government, and has no application to the powers of taxation of a state or territorial legislature.</p> <p>2. Same — Territory of Hawaii — Powers Conferred by Organic Act.</p> <p>The provision of the organic act of the territory of Hawaii that “the legislative power of the territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable” includes full and comprehensive power to legislate in the matter of taxation.</p> <p>8. Same — Income Tax Law — Discrimination between Corporations.</p> <p>A provision of an income tax law exempting from its operation private schools, colleges, commercial colleges, and fraternal benefit societies does not make an illegal discrimination which renders the law invalid as to other corporations or persons upon whom the tax is imposed.</p> <p>4. Same — Uniformity of Method — Equal Protection of Laws.</p> <p>The provision of the fourteenth constitutional amendment which forbids states to deny to citizens the equal protection of the laws does not require taxes to be levied by a uniform method and at the same rate upon every class of property, but the manner of taxation with respect to each class is left to the legislative discretion.</p> <p>5. Same.</p> <p>The exemption of insurance companies from the operation of an income tax law does not render it invalid as to other corporations who are made subject to the law, where the exemption is expressly made on the ground that such companies are required by another law to pay a tax on the premiums received.</p> <p>6. Same — Discrimination—Exemption of Reasonable Personal Income.</p> <p>A law imposing an income tax on persons and corporations does not discriminate illegally against the latter because it allows each person, or the persons composing one family, a reasonable income exempt from the tax; nor is $1,000 per year an amount so unreasonable as not to be within the legislative discretion.</p> <p>7. Same — Effect of Unconstitutional Provisions.</p> <p>The fact that an income tax law does not expressly exempt the salaries of judges from the tax, or that it authorizes unreasonable searches and seizures, or requires the production by a taxpayer of evidence incriminating himself, in violation of the Constitution, does not invalidate the law as a whole, and the protection of the Constitution because of such illegal provisions can only be invoked by one against whom they are sought to be enforced.</p> <p>8. Same — Hawaiian Income Tax Law — Validity.</p> <p>The income tax law of the territory of Hawaii (Act No. 20, pp. 31-35, Sess. Laws 1901) is not invalid, as to its provisions imposing a tax on the incomes of corporations, as being in violation of the Constitution of the United States or the organic act of the territory.</p>

In this case White and two others, creditors of the Bradley Timber Company, a manufacturing and trading corporation under the laws of the state of Alabama, filed a petition against said corporation, praying to have it adjudged a bankrupt.

<p>1. Removal of Causes — Suit Against Citizen and Alien.</p> <p>In a suit by a plaintiff, who is a citizen of the state where it is brought, against two defendants, the fact that one is a citizen of a different state, and the other an alien, does not deprive a federal court of jurisdiction, nor prevent a removal from a state court under the judiciary act of 1887-88 (Act March 3, 1887, 24 Stat. 552, as amended by Act Aug. 13, 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 507]), where either defendant might have removed the suit if sued alone, and they join in the petition for removal.</p> <p>2. Same — Petition—Allegation of Citizenship.</p> <p>An allegation in a petition for removal that one of the petitioners is a corporation organized under the laws of a foreign country is a sufficient allegation that it was a citizen of such country when the action was commenced against it.</p> <p>8. Contract — Action for Breach — Construction of Writings.</p> <p>Where the correspondence between the parties introduced in evidence clearly constituted a contract for service to be performed by plaintiff for a specified compensation, it was the duty of the court to so determine; and it was error to submit such issue to the jury, and to admit for their consideration thereon, in connection with the correspondence, a subsequent agreement with respect to the same services made after a breach of the prior contract by defendants, as shown by their own testimony.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>¶ 2. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.</p>

<p>1. Contracts — Brokers—Purchase op Real Estate — Implied Teems.</p> <p>Defendant, in order to aid tbe poorer class of Hebrews in settling in the country, executed a written contract with plaintiff by which it agreed to loan plaintiff a certain sum to be used in the erection of houses on land belonging .to plaintiff in the country, on which plaintiff agreed to give a mortgage to secure the loan. It was further stipulated that plaintiff should sell the houses to such purchasers as defendant should name, provided the purchaser would assume the payment of the mortgage to defendant, pay 10 per cent, of the price in cash, and execute a second mortgage to the plaintiff for the balance. Plaintiff was entitled to fix the prices for the houses and the terms of payment, and left free, unless the purchasers complied with such conditions, to sell to whom he chose. Eeld that, since the contract in terms did not obligate defendant to furnish purchasers or require that the purchasers named by it should comply with plaintiff’s conditions, and the contract being otherwise beneficial to plaintiff, an agreement by defendant to furnish such purchasers would not be implied.</p> <p>3. Same — Written Contract — Prior Negotiations — Evidence.</p> <p>Where the contract between two parties is reduced to writing, evidence of prior negotiations between them is inadmissible in an action thereon, • except for the purpose of aiding the court to interpret the instrument.</p>

This action was originally brought by defendant in error, a corporation organized and existing under the laws of the State of Missouri, against the plaintiffs in error, citizens and residents of the State of Montana, in the Superior Court of Cook County, Illinois, and was removed by plaintiffs in error to the Circuit Court below.

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

<p>1. Shipping — Construction op Charter Party — Deviation prom Authorized Use.</p> <p>A steam launch was demised for two weeks, by a written charter party, to be used “for a coaching launch for the University and Freshmen crews of Columbia College, on the Hudson river.” The owner had refused to charter the launch to the same charterer for use on the Harlem river. On the tenth day of the charter the launch was sent through to the Harlem for a boat, and, owing to the breaking of a bridge, was compelled to return by way of East river; and when she reached a point in Hell Gate she was disabled by the breaking of a pin which connected the eccentric with the shaft of the engine, and the master was obliged to engage a tug to take her in. The owners of the tug libeled the launch, and obtained an award for salvage; the charterer refusing to defend after notice of the claim. It was admitted that the locality where the accident occurred was more dangerous to navigate than the Hudson, and that, owing to the tide and currents there, the launch could not be taken home with sweeps, as was ordinarily done on the Hudson in case of a breakdown. The regular engineer being absent, a special man for the trip was employed, who was unfamiliar with the locality and .the boat, and was unable to find the tools to make temporary repairs, which might have been done. Held that, in view of the circumstances under which the charter was made, the limitation therein to the Hudson river was a material part of the agreement, and the departure from the locality specified constituted a deviation from the charter party, and the charterer liable as an insurer for the damages resulting therefrom, which included, under the facts shown, not only the cost of repairs, but the amount of the decree and costs and proper disbursements in the salvage suit.</p>

<p>1. Shipping — Damages for Breach of Charter — Sale of Vessel before Expiration of Term.</p> <p>Respondents hired from libelant, for a stated term, at a stipulated rental per day, certain named vessels, consisting of a dredge and attendant scows, composing a dredging plant. Before the expiration of the term, respondents returned the vessels, without notice; and some days later, and before the expiration of the term, libelant sold the dredge. Held, that it could not recover the contract rental for the plant after the date of such sale, which placed it out of its power either to perform the contract thereafter, or to reduce the damages for its breach, as it was bound to do, by otherwise using or leasing the plant, if that could be done in the exercise of reasonable diligence.</p> <p>2. Same — Injury of Chartered Vessel — Liability.</p> <p>A charterer is liable for an injury to a scow resulting from the negligence of a tug hired by him to tow the same.</p>

This is a libel in personam against the city of Cleveland, a municipal corporation of the state of Ohio. The libelant is the owner of the steam tug Crown Prince, which came into collision with a snag or other submerged obstruction in that part of the navigable river Cuyahoga, lying within the corporate limits of the municipality, and constituting a part of the harbor, and was sunk and totally lost as a consequence.

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

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

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

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

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

Writ of error by defendant to review a judgment in favor of plaintiff upon a verdict in an action to recover for breach of contract.

<p>1. Injunction — Grounds—Threatening Suits for Infringement of Patents.</p> <p>Tbe owner of a patent is acting witbin bis rights in notifying infringers of bis claims, and threatening them with litigation if they continue to disregard them; nor does he transcend his rights when, a claimed infringer being a manufacturer, he sends such notices to the manufacturer’s customers, if he does so in good faith, believing ■ his claims to be valid, and in an honest effort to protect them from invasion. But the sending of such notices in bad faith, and without any intention of bringing the suits threatened, but solely to injure the manufacturer’s business, constitutes a fraudulent invasion of property rights against which it is the duty of a court of equity to grant relief by injunction.</p> <p>Ü. Same — Good Faith — Evidence.</p> <p>Whether circulars and letters sent by the owner of a patent to the customers of a manufacturer of an article claimed to infringe, warning them of infringement and threatening suit, are sent in good faith and for legitimate purposes, can seldom be determined from their contents alone, and, like all questions of intent, must generally be determined by the extrinsic facts. When the manufacturer is financially responsible, and his infringement readily provable, and where the patent owner is financially able, and one who makes it his sole business to grant licenses, which places him under a duty to protect his licensees, the bringing of an infringement action against the manufacturer would seem to be the imperative proceeding; and if he delays, and attempts to effect by threats what he could compel by law, a strong inference of bad faith arises, which becomes irresistible if he refuses to bring suit for any considerable time when the alleged infringement is open, notorious, defiant, and extensive.</p> <p>5. Same — Evidence Considered.</p> <p>Complainant was a manufacturer of a spring-tooth harrow under a patent. Defendant was the owner of a number of patents covering such implements, and its business was the granting of licenses thereunder. It claimed complainant’s harrow to be an infringement of a number of its patents, and requested complainant to take licenses thereunder. Complainant sent one of its harrows for examination, claiming that it did not infringe, and, after interviews, refused to take a license, and requested defendant to bring suit to test the question of infringement. This defendant refused to do, but commenced and continued to send circulars and letters to complainant’s customers threatening suits, stating in effect that complainant would not protect them, and advising them to buy of its licensees, a list of whom were sent. After suit brought by complainant to enjoin the sending of such circulars and letters, defendant for the first time commenced suits on one of its patents against several customers of complainant, which it subsequently dismissed. Held, that such facts were sufficient to sustain the charge that defendant was acting in bad faith for the purpose of destroying complainant’s business and coercing it into becoming a licensee of defendant, and entitled complainant to an injunction.</p>

<p>L Patents — Anticipation—Eléctricas Motoks.</p> <p>The Tesla patents, Nos. 511,559 and 511,560, the former covering a certain method, and the latter certain means, of operating electrical motors by means of alternating currents from a single original source, known as the “split phase” system, held void for anticipation by the printed publication at Milan in an Italian journal on April 22, 1888, of a report of a lecture by Prof. Galileo Ferraris, fully describing such system; complainant’s evidence being insufficient to sustain the burden of proof resting upon it to show that Tesla’s invention was prior to such date.</p>

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

<p>1. Patents — Invention—Process for Reduction of Copper.</p> <p>The Manhes patent, No. 470,644, for the process of reducing commercial or pig copper from copper matte, and a converter for applying such process, which consists essentially in burning out the impurities in copper matte by means of radial jets of atmospheric air injected into the molten mass under pressure while it is in the converter, is void for lack of invention as to both claims, being the same process and essentially the same converter invented and patented by Bessemer, and used in the making of steel from pig iron, applied to a different but analogous subject, without any change in the manner of operation, or producing any result which is substantially distinct in its nature.</p>

Habeas Corpus. Petition for habeas corpus by P. A. Reaves to regain the custody of his minor son, who was held by the chief of police of the city of Montgomery, Ala., on the charge of being a deserter from the navy. The minor, Who resided in the city of Montgomery, Ala., with his father, left home and went to Meridian, Miss., where he enlisted in the navy.

<p>1. Grand Jury — Procedure—Appearance of Government Counsel.</p> <p>The Attorney General, the Solicitor General, nor any officer of the Department of Justice, is authorized by sections 359, 367, or other provision of the Revised Statutes of the United States [U. S. Comp. St. 1901, pp. 207, 209], to conduct, or to aid in the conduct of, proceedings before a grand jury, nor has a special assistant to the Attorney General such power.</p> <p>2. Same — Department of Justice.</p> <p>A special assistant to the Attorney General is not an officer of the Department of Justice, within the meaning of such sections.</p> <p>8. Same — Quashing Indictment.</p> <p>A special assistant to tlie Attorney General, appointed to investigate and report concerning alleged fraudulent importations of Japanese silks at the port of New York, and to prepare and conduct such civil and criminal proceedings as may result therefrom, is not authorized by law to conduct, or to aid the conduct of, proceedings before a federal grand jury, and indictments based upon such proceedings so conducted should be quashed upon motion.</p> <p>4. Same — Assistant Attorney General — Compensation.</p> <p>The Merchants’ Association of the City of New York assured the Attorney General that, if necessary, it would furnish funds to compensate the special assistant who should be appointed for such purpose. This arrangement was inter alios, and did not disqualify the appointee, who became an employe of the United States, to whom alone he could, look for compensation, and for whom he performed his duty with fidelity and probity.</p> <p>(Syllabus by the Court.)</p> <p>¶ 3. See Indictment and Information, vol. 27, Cent. Dig. § 484.</p>

<p>1. Res Judicata — Persons Concluded by Judgment — Bondholders of Railroad Company.</p> <p>A question as to the liability of the property of a railroad company to taxation, determined in a suit to which the company was a party, is not res judicata as against a mortgage bondholder of the company, where no one claiming under the mortgage was a party.</p> <p>9. Taxation — Statutory Exemption of Railroad Company — Transfer of Property.</p> <p>Code Pub. Gen. Laws Md. art. 23, §§ 187, 188, which provide that on the sale of any railroad under a mortgage the purchaser shall be authorized to form a corporation which shall “possess all the powers, rights, immunities and franchises” possessed or enjoyed by the corporation which owned the railroad previous to the sale, under its charter or any statute of the state, is broad enough to pass to the succeeding company an exemption from taxation for a term of years conferred upon the company previously owning the road by a special statute; the word “immunities,” used in the statute, including an immunity from taxation, and being an apt word to expressly transfer such exemption, or, in effect, to grant the same exemption to the new corporation.</p> <p>8. Constitutional Law — Impairment of Contract — Exemption from Taxation.</p> <p>Where by the legislation of a state a railroad company is exempted from state, county, and municipal taxation for a term of years after it shall have completed its road, such grant creates a contract between the state and the company and those who subsequently become its creditors, which is impaired by the state, within the inhibition of the federal Constitution, by the taxing of the property of the company by local authorities under the general power conferred on them by the state.</p> <p>A Taxation — Statutory Exemption — Construction of Statute.</p> <p>A railroad company authorized by its charter to build a road between two terminal points over a certain route was by a special act of the Legislature granted an exemption from taxation on its property for a term of years from the date of the completion of such road. It was also authorized by the same act to build and acquire by purchase branch and other lines. Held, that the property exempted from taxation was limited to the road built under its charter, and such other property as • was necessary for its operation.</p> <p>¶ 3. See Constitutional Law, vol. 10, Cent Dig. §§ 303, 408.</p>

<p>Í. Marine Insurance — Construction of Policy — Proof of Usage.</p> <p>Parol evidence of usage is not admissible to affect the construction of a policy of marine insurance where the contract is expressed in terms which are clear and plain, unless it is shown that the words used have, by usage, acquired a special a“nd peculiar meaning different from their ordinary meaning.</p> <p>2. Same — Reinsurance.</p> <p>Libelant, a marine carrier, was accustomed to issue to shippers “insured bills of lading,” which bound it as an insurer of the cargo covered thereby,- and against the risks so assumed it took out a marine policy with respondent, which contained the provision, that “this insurance is hereby understood and agreed to be in effect a reinsurance of the risks which are or may at any time be assumed by the assured, and the assurers agree to pay the assured in full all claims for such losses arising from perils enumerated in the policy as the assured may, in their judgment, settle for with the owners or other parties interested in the merchandise.” A loss of cargo occurred from fire, which was one of the perils insured against, and, the contribution to be made by the insured bills of lading cargo having been determined in general average, libelant paid the same. Held, that by the plain terms of the policy respondent was liable for the full amount so paid to the extent of the amount named in the policy, which was one of reinsurance, and not of coinsurance such as would entitle respondent to prorate the loss with libelant; and that it was immaterial that the loss was only partial, both as to the entire cargo and the insured bill of lading cargo.</p>

In Admiralty. Libel and cross-libel for collision. This is a case of collision in the nighttime, with clear weather, between two steamers in the Chesapeake Bay, at a point about a mile and a half E. by S. from Smith’s Point light.

<p>1. Railroad Right of Wat — Abandonment—Effect of Conveyance.</p> <p>If a conveyance by a railroad company of a portion of its right of way to another company be regarded as an abandonment of its easement, such abandonment can only be taken advantage of by the owner of the fee, and cannot avail a city which claims the land for public . purposes through a dedication made by a lessee of the railroad, company.</p> <p>3. Same — Adverse Possession — Occupation by City.</p> <p>Possession by a city of land constituting a part of the right of way of a railroad, under a dedication made by a lessee of the road, can give the city no rights as against the lessor after the lease has terminated, üor can it acquire any such rights by adverse possession in any case under Code N. C. § 150, which provides that no railroad company shall be barred by limitation of its title or right in any right of way by reason of its occupation by another.</p> <p>¶ 1. Abandonment or forfeiture of railroad right of way, see note to Townsend v. Railroad Co., 42 C. C. A. 576.</p>

<p>1. Seamen — Personal Injuries — Liability op Ship.</p> <p>Libelant, a deck band on a lake steamship, while paying out the bowline to make fast to a dock, had his leg caught in a kink of the hawser and crushed oft by being drawn to the bitts before he could be rescued. He was acquainted with the work and with the surroundings, and another man was assigned to the work with him, which was shown to be the usual number on vessels having a steam windlass, as this one had. The evidence failed to sustain libelant’s allegations as to insufficiency in the equipment of the vessel, the unsuitableness of the place where he was working, or any shortage of hands, and no negligence on the part of the owners or master appeared. Held, that on such facts the ship was not liable for the injury, whether it occurred from a risk incident to libelant’s employment, and which was therefore assumed by him, or through the negligence of a fellow servant.</p> <p>2. Same — Injury in Service — Right to Cure at Expense op Ship.</p> <p>A seaman who is injured while in the service of the ship without fault on his part is entitled to be cured, so far as that is possible, at the expense of the ship; and in a suit by him in a court of admiralty to recover damages for the injury, in which it is determined that the ship is not liable, it is competent for the court, under a prayer for general relief, to award him compensation for the failure of the ship to furnish him proper support, medical attendance, nursing, and care while his wounds were healing, and for the additional suffering he endured for lack of such attendance and care.</p>

<p>1. Infringement of Copyright — Recrimination—Materiality of Evidence.</p> <p>In a suit for infringement of copyright, evidence that complainant had Itself appropriated the copyrighted matter of third persons is immaterial.</p> <p>2. Same — Legal Encyclopedias — Appropriation of Lists of Cases — What Constitutes Infringement.</p> <p>While the use of lists of authorities cited in a legal encyclopaedia, as a guide to original research, is legitimate, the reprinting in a riscal publication of such lists, which have been compiled by original labor, is an infringement of copyright; and it is immaterial that the citations reproduced are scattered through text and notes of the piratical publication.</p>

This is a motion for a rule or order directing and compelling A. D. Mather & Co.’s Bank, of Utica, N. Y., to turn over and pay to Edward H. Wells, as trustee of the property, etc., of Alphonse Breslauer, the above-named bankrupt, the sum of $400, being the amount realized by the. sheriff on the sale of a stock of goods belonging to said Breslauer, and which said sheriff paid over, less his fees and expenses, to said bank, and which sale and payment took place after the…

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

In Admiralty. On libel filed by the owners of the schooner Charles E. Wyman for damages by collision. The collision occurred in the east draw of the railroad bridge which spans Sturgeon Bay at the city of Sturgeon Bay, about 1:30 a. m., on a clear night, with all lights displayed. The Wyman was a three-mast schooner, and approached the bridge from the south, with the wind fair on her port quarter, and all sails set, except square sail and lower topsail.

This is a demurrer to the specifications of objections filed by Weidman & Co. to the discharge in bankruptcy of Edward T. Patterson, the above-named bankrupt.

<p>1. Cumulative Testimony — Discretion as to Admission.</p> <p>A fact being sufficiently proved in the opinion of the court, it Is In its discretion to refuse to allow cumulative testimony.</p> <p>2. Railroads — Fires—Directing Verdict — Evidence.</p> <p>Evidence in an action against a railroad for the burning of a building near the track on the ground that the fire was communicated hy a locomotive held insufficient to sustain a finding that the fire was so set, so that verdict was properly directed for defendant.</p>

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

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

<p>1. Tug and Tow — Duty of Tus — Care to Guard against Injury of Tow.</p> <p>A vessel which undertakes a towage service is liable for reasonable care of the tow, and that reasonable care is measured by the dangers and hazards to which the tow is exposed, which it is the duty of the master of the tug to know and to guard against not only by giving proper instructions for the management of the tow, but by watching her, when in a dangerous locality, to see that his directions are obeyed.</p> <p>2. Same — Negligence—Liability for Injury of Tow.</p> <p>The master of a steamer, having contracted to tow a schooner from her wharf, beyond the end of which her stern projected about one-third of her length, undertook to swing her around by the stern, there being a reef about a length astern of her, and directed the captain of the schooner to east off all lines except the stern line, after which he started her backward, being himself in the pilot house, where he could not watch her movements. The captain of the schooner cast off all her lines, and she moved backward until she grounded upon the reef. Held, that both vessels were in fault, and that the tug was not exonerated from liability for a share of the damages, because, after they had started backward, her master was told by the master of the schooner, in reply to his inquiry, that there were no rocks ahead.</p>

<p>1, Fidelity Insurance — Complaint—Irrelevant Allegation — Other Insurance.</p> <p>The complaint in an action on a policy against loss by dishonesty of an employé to the extent of $5,000, providing that, if there be other insurance, defendant should be liable for any loss only ratably, alleged a loss of over $10,000, and that plaintiff had insurance against the loss to the extent of $5,000 with another company, and on “demand of the plaintiff the full sum of $5,000 was paid” by such other company. Held, that the allegation as to the other insurance was not irrelevant, but, to prevent influence on the jury, in place of the words “and on demand of the plaintiff the full sum of $5,000 was paid” there should be substituted the words “which has been paid.”</p>

<p>In Bankruptcy.</p>

<p>L Fire Policy — Cancellation—Return of Unearned Portion of Premium.</p> <p>A fire policy declared that it might be canceled at any time by giving five days’ notice, and then provided that, if canceled, the unearned portion of the premium should be returned on surrender of the policy. Held, that on canceling the policy the company was not required to return the unearned premium until the policy was surrendered.</p> <p>2. Same — Forfeiture—Suspension of Business — Permits.</p> <p>A fire policy covering a manufacturing establishment declared that, unless otherwise provided by agreement indorsed thereon, it should be void if the establishment ceased to be operated for more than 10 consecutive days. The establishment ceased to be operated April 20th, but permits were granted allowing this until July 20th. The fire occurred July 23d, operations not having been resumed. Held, that the policy was not in force.</p>

<p>In Bankruptcy. On certificate of referee concerning disallowance of claim of the Corbin Banking Company.</p>

<p>In Bankruptcy.</p>

<p>1. Removal of Causes — Ground for Removal — Waiver of Right to Remove.</p> <p>In an action in a state court against a citizen of the state and a citizen of another state the suit was dismissed as against the citizen of the state, hut no notice of such dismissal was served on the other defendant, and thereafter, while ignorant of the dismissal, it requested a change in the time fixed for the trial of the case. Reid, that it had not waived its rights to a removal.</p> <p>2. Same — Time for Removal — Reasonable Time.</p> <p>The motion for removal having been granted 19 days from the dismissal will be held to have been made within a reasonable time after the right of removal arose, though it did not appear when the moving party learned of his right to remove, or when the petition for removal was filed.</p>

<p>1. Bankruptcy — Discharge—Vacation—Parties in Interest — Creditors— Failure to Prove Claim.</p> <p>That a creditor of a bankrupt failed to file or prove his claim within a year after the adjudication, and was thereby precluded by Bankr. Act, § 57n, Act July 1, 1898, c. 541, 30 Stat. 500 [U. S. Comp. St. 1901,'p. 3444], from thereafter proving his claim, or sharing in any dividend which might be declared if the discharge was vacated, did not deprive him of the right to move to vacate such discharge, as a party in interest, within section 15, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], since, if the discharge were vacated, the creditor would be entitled to collect his claim from any property acquired by the bankrupt after bankruptcy.</p> <p>2. Same — Jurisdiction—Amendment of Decrees.</p> <p>A court of bankruptcy has general power to amend its decrees in its discretion, and on its own motion to vacate a discharge, in the furtherance of justice, before the expiration of a year after it was granted.</p>

<p>Motion by Defendant for Judgment upon Reserved Point, Notwithstanding the Verdict.</p>

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

<p>1. Corporations — Power to Dispose of Property — Rights of General Creditors.</p> <p>A corporation, while solvent and a going concern, holds its property like an individual, free from any lien or trust in behalf of its general creditors, and may dispose of the same as it deems best, subject to the provisions of its charter and those other restraints upon the conveyance of property which the law imposes alike on corporations and individuals.</p> <p>2. Same — Payment of Dividends.</p> <p>Dividends paid by a corporation to its stockholders are not subject to any lien or claim on behalf of its general creditors, in the absence of proof of insolvency at the time the payments were made, or of a fraudulent purpose. .</p> <p>8. Equity — Multifariousness of Bill.</p> <p>A bill is multifarious which joins a cause of action against a corporation for the foreclosure of a mortgage and one against stockholders to recover dividends paid to them out of the income of the mortgaged property, upon which the mortgage was not a lien, and which could only be recovered on the ground that its distribution as dividends was wrongful and fraudulent; and its receipt by the stockholders constituted them constructive trustees for the benefit of corporate creditors.</p> <p>4. Corporations — Suits against Stockholders — Simple Contract Creditors.</p> <p>General creditors of a corporation can only proceed against its stockholders in a federal court of equity after they have exhausted their remedy against the corporation by reducing their claims to judgment.</p> <p>8. Same — Nebraska Statute.</p> <p>Under the statute of Nebraska, as construed by the Supreme Court of the state, a creditor of a corporation can only maintain a suit against the stockholders after he has reduced his claim to judgment against the corporation and exhausted the corporate assets.</p> <p>¶ 4. Stockholders’ liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 23 C. C . A. 315; Scott v. Latimer, 33 C. C. A. 23.</p> <p>See Corporations, vol. 12, Cent. Dig. § 1017.</p>

This is a suit brought by the defendant in error against the city of Detroit upon a contract alleged to have been made between the parties November 30, 1892, for the hiring by the city of the steamboat Milton D. Ward of the plaintiff in the suit for the term of two years from the 14th day of September, 1892, for the purpose of being used by the city as a hospital in which persons suspected of bringing germs of cholera from abroad could be isolated and cared for.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.</p> <p>The appellee, the Bunker Hill & Sullivan Mining & Concentrating Company, a corporation, brought its bill in equity against the appellant, the Empire State-Idaho Mining & Developing Company, to quiet title to the Stemwinder lode mining claim in Shoshone county, Idaho. The controversy relates more particularly to extralateral rights, and it may be best explained by reference to the following diagram:</p> <p> </p> <p>The bill avers that the appellee owns and is in possession of the Stem-winder claim, the surface ground of which is indicated by the parallelogram a — b—d—c, excepting thereout such portions as are included within the surface lines of the Emma and Last Chance lode claims; also excepting such parts of the lode or vein which lie within the surface lines of the Emma and Last Chance claims, and such parts thereof as lie within the extra-lateral rights of said fast-named claims as the planes thereof extended indicate upon the said diagram. The bill alleges that the course of the apex at the surface is as shown upon the diagram, and that its downward course is westwardly; that the appellee owns and is in possession of all of the said vein throughout its entire depth on its downward course between the end-line planes of said Stemwinder claim marked upon the diagram respectively b — a—e—f and d — c—g—h, excepting therefrom such underground parts of said vein as are included within planes drawn through the end lines of said Emma lode claim from 1 to y, and vertical planes drawn through the end lines of the Last Chance claim, 2 — 1—5 and 3 — 4—6. The portion of the underground vein which is in controversy is defined by planes e — f and g — h, the same being the end lines of the Stemwinder extended beyond the planes of the end lines of the Emma and Last Chance claims. The bill avers that the appellant claims an interest adverse to the appellee in that portion of said vein which lies northerly and westerly of the northerly end line plane of the Last Chance claim, 2 — 1—5, and that such claim is false and groundless, and is a cloud upon the appellee’s title; that since September 1, 1899, the appellant, by means of underground works, of which it has exclusive possession and control, has penetrated into that part of the underground vein so claimed to lie within the Stemwinder extralateral boundaries, and beyond the end line plane of the Last Chance northern boundary, and that said underground vein, where so penetrated, contains large and valuable ore bodies which the appellant is extracting and threatens to extract and remove unless enjoined. Upon the filing of the bill an application was made for an injunction. The application was heard upon affidavits and counter affidavits, and thereupon the appellant was enjoined from extracting such ore pending the suit. On July 12, 1902, the appellant filed a demurrer and an answer to the bill under a stipulation providing that the demurrer should not be deemed to be waived by the answer, and thereafter the demurrer was argued and was overruled. Upon application of the appellant, the injunction order was thereafter vacated, and a further hearing was had upon the application for an injunction, and on the pleadings and the affidavits which were already on file. The court again enjoined the appellant as before. From that injunction the present appeal is taken. See 106 Fed. 471; 108 Fed. 189.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p> <p>On petition, filed by the trustee of the above-named bankrupt, to review an order of the District Court for the Southern District of New York, affirming a decision of the referee refusing to expunge the claim of Samuel Reitzen and holding that the said Reitzen is entitled to priority under section 64b (4) of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]), his claim being for wages earned within three months before the date of the bankruptcy proceedings. The trustee maintains that Reitzen is not enti'led to preference because he was paid by the piece, namely, at so much per garment, and that only those workmen are within the meaning of the act whose wages are measured and fixed by periods of time.</p>

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

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

<p>1. Patents — Action for Infringement — Questions for Jury.</p> <p>In an action at law for infringement of a patent, the question of invention is one of fact for the jury, where the evidence is such as to warrant its submission.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. § 434.</p>

<p>1. Patents — Infringement—Measure of Damages.</p> <p>On an accounting for infringement of a patent for an improvement in miners’ lantern holders, where defendant made and sold miners’ caps to which it attached the infringing holders, complainant was entitled to recover only the profits made on the holders, and not that made on the caps, which were separate articles, from which the holders were readily detachable, and having a market value when sold alone, and substantially the same value when sold equipped with other lantern holders which defendant was free to use.</p> <p>¶ 1. Accounting by infringer of patents for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8.</p> <p>See Patents, vol. 38, Cent. Dig. §§ 567, 572.</p>

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

<p>In Bankruptcy. On review of an order of the referee directing an assignee in insolvency under the state law to turn over the estate of the bankrupt to the trustee in bankruptcy.</p>

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

<p>1. Bankruptcy — Preference—Satisfied Execution — Summary Proceedings —Propriety.</p> <p>Banfer. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], invalidates all judgments, levies, attachments, or other liens obtained against an insolvent within four months of filing a petition in bankruptcy, and the property affected passes to the trustee. By section 60, subds. “a,” “b,” 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], a preference is given by suffering a judgment against the person of an insolvent within the specified four months, and such preference is recoverable by the trustee if the creditor had reasonable cause to believe one was intended. Section 23b, as amended by Act Eeb. 5, 1903, c. 487, § 8, 32 Stat. 798, authorizes suits by a trustee only in the courts in which the bankrupt could have sued, had no bankruptcy proceedings been had, unless by consent of defendant, except suits to recover property under section 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], etc. Held, that a creditor’s title to the proceeds of an execution issued against the bankrupt within four months of filing the petition, which have been paid over, to the creditor by the sheriff, cannot be summarily attacked by an order to show cause issued by the referee, since it has become adverse to the bankrupt’s estate, but the trustee must bring an independent suit, of .which, however, the bankruptcy court will have jurisdiction concurrently with the state courts; and the fact that the proceeds of the execution were insufficient to satisfy the judgment, so as to leave the creditor still creditor in some degree, will not alter the case.</p>

<p>1. Trade-marks — Infringement.</p> <p>A technical trade-mark, although not a fac simile of another, may be so used by a rival manufacturer as to imitate another’s trade-mark, and, when such use actually deceives the public, it constitutes an infringement, against which a court of equity will grant relief.</p> <p>2. Same.</p> <p>Complainant used and registered a trade-mark consisting of a square label or seal of a vivid red color, with the corners clipped, on which was an arbitrary combination of straight and curved lines in white, in which were printed the letters and word “In-er-seal.” These labels were placed on the ends of complainant’s cartons containing bakery products. Another manufacturer of the same class of goods registered as a trade-mark, and used in the same manner on its cartons, a label the same in size, shape, and color, having thereon a combination of white lines consisting of circles and straight lines with the words “Factory” and “Seal” printed thereon. The figure or symbol was not the same, but the general effect of the combination in a label used in the same place on a carton of the same size, shape, and color, together with a similar figure and the word “Seal,” was to simulate the trade-mark of complainant, and to deceive purchasers. Held, that such use-of defendant’s trade-mark was an infringement of that of complainant, which entitled it to an injunction.</p>

<p>1. Board of Trade — Property in Quotations — Injunction—Gamblino Contracts.</p> <p>Where it was proved that over 90 per cent, of the transactions executed in the pits of a board of trade were mere gambling transactions, which both parties intended to settle, by a payment of differences in the subsequent price of the commodities dealt in before the maturity of the option, quotations so obtained were of no legitimate value as tending to promote the commerce of the country, and dissemination thereof could not be restrained by such board of trade.</p>

<p>1. Trustee in Bankruptcy — Action Against.</p> <p>A trustee in bankruptcy may be sued without first obtaining leave from the court.</p>

<p>1. Equity — Dismissal of Bill.</p> <p>A complainant has an absolute right to dismiss his bill after the evidence is closed, the case put on the. calendar, and ordered by the court to stand for hearing, but before the hearing, where the dismissal would deprive the defendant of no substantial right accrued since the suit was commenced, unless defendant is entitled to affirmative relief, though defendant might thereby be subjected to annoyance from a subsequent suit.</p> <p>¶1. See Equity, voL 39, Cent. Dig. §§ 751, 752.</p>

<p>1. Equity Pleading — Pleas—Motion to Strike Out.</p> <p>Matters set up in a combined “plea and answer” in the form of pleas, but which might properly be pleaded by way of answer, will not be stricken out on motion. Nor will a plea to the jurisdiction, where the same point, has been previously raised, and passed on adversely, on a. motion for a preliminary injunction.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. Motion for leave to apply to the Circuit Court to reopen cause on the ground of newly discovered evidence.</p>

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

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

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

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

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

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

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

<p>In Error and Cross-Error to 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 District of West Virginia.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Motion to Continue Temporary Receivership.</p>