Volume 122 — Federal Reporter

This action was commenced in the United States Circuit Court for the District of Montana, on April 12, 1901, by the Helena Waterworks Company, a corporation organized and existing under' the laws of the state of New Jersey, to restrain the city of Helena, in the state of Montana, from erecting, constructing, purchasing, or otherwise acquiring a water plant and system, and from acquiring a water supply, to be owned and controlled by said city, for the purpose of furnishing…

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

<p>1. Federal Courts—Following State Decisions—Validity of Statutes.</p> <p>The decisions of the Supreme Court of California sustaining the constitutionality of county ordinances imposing license taxes for revenue, enacted pursuant to Act April 1, 1897 (St. Cal. 1897, p. 465, c. 277), are binding on the federal courts, and will be followed where similar ordinances enacted under the same statute are involved.</p> <p>2. Licenses—Action to Recover Fees—Effect of Repeal of Statute.</p> <p>Act April 1, 1897 (St. Cal. 1897, p. 465, c. 277), authorized county boards of supervisors to pass ordinances “to license, for purposes of regulation and revenue all and every kind of business not prohibited by law and transacted and carried on in such county * * * to fix the rates of license tax upon the same and to provide for the collection of the same, by suit or otherwise.” In 1900 a county adopted an ordinance which, inter alia, required a license to keep sheep in the county, and the payment of an annual license fee of 10 cents per head therefor. Shortly afterward, an action was brought to collect the license fee due under said ordinance from a sheepowner. March 23, 1901, and pending such action, an act (St. & Amend, to Codes 1901, p. 635, c. 209, § 3366) was passed, which by implication repealed the act of 1897 in so far as it authorized county boards to collect a license tax for revenue. Held, that such act was not retrospective in operation, and did not abate the pending action for collection of the tax, the right to which had previously become vested in the county.</p>

<p>1. Constitutional Law—Delegation op Legislative Powek—Act Author izing Regulations por Forest Reservations.</p> <p>The provision of the sundry civil appropriation act of June 4, 3897, relating to forest reservations (30 Stat. 35 [U. S. Comp. St. 1901, p. 1540]), which authorizes the Secretary of the Interior to “make such rules and regulations and establish such service as will insure the objects of such reservations, namely to regulate their occupancy and use and to preserve the forests thereon from destruction,” and which itself' prescribes the penalty for violation of such regulations, is not unconstitutional as delegating legislative power to an administrative officer, but is a valid delegation of power to make administrative regulations in relation to details necessary to carry out the purpose of the act.</p> <p>2. Forest Reservations—Validity op Regulations—Exclusion op Sheep.</p> <p>Rule 13, made and promulgated by the Secretary pursuant to such authority, which prohibits the pasturing of sheep and goats on public lands in the forest reservation, except in cases where permits for their limited grazing may be granted by the Land Department with the approval of the Secretary, is a proper and legitimate exercise of the authority conferred, which gives the Secretary the right to exclude from the reservations any class of live stock found to be destructive of the purpose for which they were created; and such rule cannot be said to create an unjust or illegal discrimination against the owners of the sheep, which constitute a class of live stock differing from any other in respect to pasturage, and which has uniformly been recognized as a proper subject for special legislation and regulation.</p> <p>3. Same—Injunction Against Pasturage op Sheep—Grounds.</p> <p>A bill filed by the United States to enjoin the pasturage of sheep in a forest reservation, in violation of the regulations prescribed by the Secretary of the Interior, alleged that the sheep pastured within the reservation were committing great and irreparable injury to the public lands therein, and to the undergrowth, timber, and water supply. Affidavits filed in support of such allegations recited that the sheep of defendants destroyed undergrowth, young and growing trees and seedlings, and ate and destroyed the roots of the vegetation and grasses, leaving the ground bare and subject to disastrous washings by the rains, to the irreparable injury of the reservation. Held, that such allegation and showing constituted a sufficient ground for the granting of a preliminary injunction.</p> <p>4. Equity—Sufficiency of Bill—Multifariousness.</p> <p>A bill by the United States against a number of defendants, to enjoin them from pasturing sheep in a forest reservation, is not subject to the objection of misjoinder and multifariousness where it alleges that defendants are pasturing two bands of sheep in the reservation, and contains no averments which show or indicate any separate or distinct rights or different interests as between the several defendants.</p>

On the 18th day of September, 1901, Adolph Rosenthal and Lewis J. Lehman, a partnership doing business in the firm name and style of Rosenthal & Lehman, made a general assignment of all their property for the equal benefit of all their creditors to Smith W. Summers, trustee.

<p>1. Corporations—Validity of Contracts—Discrimination between Stockholders.</p> <p>Certificates of indebtedness issued by a corporation to a certain class of stockholders, who obtained their stock by exchanging therefor stock of another corporation, by which it obligated itself to make semiannual payments to the holders during five years, pursuant to a contract, the effect of which was to give to such stockholders fixed dividends during such time, regardless of the earnings of the company, are illegal and void.</p> <p>2. Negotiable Instruments—Rights op Purchaser—Notice op Invalidity.</p> <p>A purchaser of certificates of indebtedness issued by a corporation, which contain a reference to the agreement under which they were issued, is chargeable with notice of the contents of such agreement, although the certificates are negotiable in form; and where, because of the illegality of such agreement, the certificates were void in the hands of the original holders, they are also void in the hands of the purchaser; nor does he acquire any greater rights by surrendering such certificates in accordance with their terms, and obtaining new ones in their place, issued in his name.</p>

<p>1. Prosecutor of Pleas—Power Under Common Law to Bind County.</p> <p>Under the common law of New Jersey, the prosecutor of the pleas-had no power to bind the county by a contract with a detective to secure evidence of violations of the liquor and gambling laws.</p> <p>2. Same—Statutory Power—Approval of Expenses Incurred by Presiding Judge.</p> <p>Under section 95 of the New Jersey act (Revision of 1898,’ pp. 866, 901), providing that it shall be the duty of the prosecutor of the pleas to use all reasonable diligence for the detection and conviction of offenders against the laws, and that all necessary expenses incurred thereby, certified to, and approved under his hand by, the presiding judge, shall be paid by the board of chosen freeholders, a contract of the prosecutor of the pleas with a detective to secure evidence of violations of the liquor and gambling laws was not binding on the county, where the bill for such services was neither certified to, nor approved by, the presiding judge.</p> <p>3. Same—Approval of Contract by Presiding Judge.</p> <p>An approval of -such contract by the presiding judge did not fulfill the requirement of the statute that the expenses incurred should be approved by him.</p> <p>4. Direction of Verdict.</p> <p>Where, under the ruling of the court, plaintiff was not entitled to recover on üie contract sued on, and he did not ask leave to take a voluntary nonsuit, nor did defendant move for a compulsory nonsuit, it was proper to direct a verdict for defendant</p> <p>5. Judgment in Action on Contract—Conclusiveness.</p> <p>A judgment that plaintiff could not recover against the county on the contract of the prosecutor of the pleas sued on does not preclude him from pursuing the proper remedy to enforce his claim for compensation for services rendered.</p>

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

<p>1, Conversion by Sheriff—Attachment against Vendor—Estoppel from Making Defense that Plaintiff was Fraudulent Vendee.</p> <p>Where the fraudulent character of the sale of personal property found in the possession of the vendee makes a seizure of it by a sheriff under a writ of attachment against the vendor rightful, no subsequent affirmance of the sale, without the consent of the sheriff, by the attaching creditor, or by his representative, the trustee in bankruptcy of the vendor, can make the sheriff’s seizure wrongful, or estop him from defending an action for conversion on account of it upon the ground that the sale was fraudulent and invalid.</p> <p>(Syllabus by the Court.)</p>

<p>1. Insurance—Appraisees mat Pink Total Loss.</p> <p>Under a policy of insurance which provides that in the event of disagreement as to the amount of loss the same shall be ascertained by two appraisers and an umpire, and that the appraisers shall estimate and appraise the loss, stating separately sound value and damage, shall submit their differences to the umpire, and the award of any two shall determine the amount of the loss, the appraisers are empowered to determine whether or not the loss is total, as well as to determine its amount in case it is partial.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Bond of Indemnity—Liability of Surety—Interest.</p> <p>A surety on the bond of a contractor for the construction of a public work is hot in default until notice or demand, and hence interest does not run, as against him, until then.</p>

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

<p>1. Patents—Suit fob Infringement—Laches.</p> <p>The owner of a patent is not chargeable with laches because of a delay of three years before commencing suit against a particular infringer, where during all of such time he was litigating with other infringers.</p> <p>2. Same—Infringement—Portable Drilling Machines.</p> <p>' The Moffet patent, No. 369,120, for a portable drilling machine, claim 2, held not anticipated, valid, and infringed, on appeal from an order granting a preliminary injunction.</p>

<p>1. Res Judicata—Suit for Infringement of Patent—Persons Concluded.</p> <p>The mere fact that the defendants in two suits for infringement of the same patent were both members of an association which contributed to the defense in each case, does not render the decree in the first suit an adjudication binding on the defendant in the second, or which he can plead in bar of that suit, in the absence of knowledge by the plaintiff at the time of the true relation of such defendant to the former suit.</p>

<p>In Equity. Suit for infringement of letters patent No. 433,088, for a water meter, granted July 29, 1890, to Eewis H. Nash. On final hearing.</p>

In Equity. Suit for infringement of letters patent Nos. 527,534 and 527,537, for disk water meters, granted to Lewis H. Nash October 16, 1894. On final hearing.

<p>1. Patents—Anticipation—Sufficiency of Proof.</p> <p>The oral testimony of witnesses, each of whom testifies from his recollection of a different, unpatented article seen by him many years before, is insufficient to establish anticipation, under the rule that in such cases every reasonable doubt is to be resolved in favor of the patent.</p> <p>2. Same—Infringement—Couch-Bed.</p> <p>The Leighton patent, No. 667,916, for an interconvertible couch-bed, comprising two complete, interlocking, laterally sliding sections, constructed and arranged to permit their separation into two independent beds without dismantling either of them, shows invention, and was not anticipated. Claims 5, 6, 7, and 8 held infringed.</p>

In Equity. Suit for infringement of letters patent No. 535,097, for a safety device for revolvers, granted to F. B. Felton March 5, 1895. On final hearing.

<p>1. Shipping—Damage to Cargo—Negligent Stowage.</p> <p>A ship, after loading part of a cargo of tea, took on at another port a large consignment of tanned skins, having a strong odor, which- were stowed in the same hold with a portion of the tea, and during the voyage the tea became impregnated with the odor, and was thereby damaged. It became necessary during the voyage, owing to a threatened storm, to remove the ventilators from such hold, and to plug the openings for 20 hours, and the ship claimed that the damage, if any, occurred at that time, and was from a danger of navigation, within exceptions in the bills of lading and section 3 of the Harter act. Held, that the proximate cause of the loss was the negligent stowage, for which the ship was not exempted from liability.</p>

<p>;1. Seamen—Extra Wages for Wrongful Discharge.</p> <p>The right of a seaman to recover a month’s extra wages, under Rev. St. § 4527 [U. S. Comp. St. 1901, p. 3077], on his discharge without his consent or fault on his part before a month’s wages have been earned, is waived by his acceptance of a new employment obtained for him by the owner, which is equivalent to the one from which he was discharged.</p>

<p>1. Removal of Causes—Federal Question—Allegation of Jurisdictional Facts.</p> <p>Where there was no allegation in a bill that disclosed that plaintiff’s right was based on any law or the Constitution of the United States, and it did not set forth a ground of relief, derived from' either, sufficient to sustain the jurisdiction of the federal Circuit Court, if the cause had been originally brought there, it was not subject to removal on the ground that the cause was one arising under the Constitution or laws of the United States.</p>

In Bankruptcy. The following is the opinion of Referee Coxe: This is an application on the part of Sussfeld, Lorsch & Co., creditors of the bankrupt, for an order compelling the trustee in bankruptcy to file with the referee, in order that the petitioners may have an opportunity.to examine the same, the books and papers of the bankrupt estate, and also a certain report on the bankrupt’s financial affairs made by a public accountant at the instance of the trustee.

<p>1. Bankruptcy—Death of Bankrupt—Allowance to Widow—Court—Jurisdiction.</p> <p>Under Bankr. Act, § 8 (30 Stat. c. 541 [U. S. Comp. St. 1901, p. 3425]), providing that the death of the bankrupt shall not abate the proceedings, but that the same shall continue as though he had not died, and that the widow and children shall be entitled to all the rights of dower and allowance fixed by the laws of the state of the bankrupt’s residence, and Gen. St. Conn. 1902, §’ 359, authorizing the state courts of probate to allow from the estate of a deceased person in process of settlement before such court such amount as it may judge necessary for the support of the widow or family during the settlement of the estate, the federal district court, sitting as a court of bankruptcy in Connecticut on the death of the bankrupt during the pendency of proceedings is authorized to make a reasonable allowance from such estate for the bankrupt’s widow.</p>

<p>In Equity. Suit to enjoin infringement of trade-mark and unfair competition. On bill and plea.</p>

<p>At Law. On motion by defendant for judgment on reserved point notwithstanding the verdict.</p>

<p>1. Extradition—Embezzlement—“Public Monets. ”</p> <p>The embezzlement of the funds of a savings bank, established, maintained, and owned by a city in Germany, by a cashier who is a public official appointed by the city, is an embezzlement of public moneys within the meaning of the treaty of 1852 between Prussia and the other states of the Germanic Confederation and the United States.</p> <p>(Syllabus by the Court.)</p>

<p>In Bankruptcy.</p>

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

<p>1. Bankruptcy—Preference—Judgment Enforcing Pre-existing Lien.</p> <p>An equitable lien on partnership assets in the hands of a receiver, created by a transfer of an interest in the partnership estate 18 months prior to the filing of a petition in bankruptcy, was paramount to the rights acquired by the trustee, though the judgment of the state court establishing the validity of such lien was rendered less than 4 months prior to the filing of the petition.</p>

<p>In Equity. On demurrers and pleas.</p>

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

<p>1. Execution Sales—Fraud on Debtor—Mental Incapacity—Suit to Redeem.</p> <p>Decedent owned three tracts of city property, and also land on an island, where he lived; he being, if not actually insane, yet subject to delusions and incapable of protecting his interests. The first tract of city property, worth $10,000, was incumbered for $1,847, for which foreclosure judgment was taken by default. Execution was levied, and the tract purchased by K., acting for the creditor’s attorney, for $500. Six days later K. sold a four-fifths interest for $1,400, and within the year the attorney’s son, acting for his father, bought the remaining fifth for $350. Later the owners sold two-thirds for $2,500, and the remaining third for $1,500. A levy for delinquent taxes had been made on the island property, which was released, and another levy made on the second tract of city property, worth $15,000, and at the sále the creditor’s attorney purchased for his client for $835. Execution was then levied on decedent’s equity of redemption, which the creditor bought for $150. This tract was resold for $3,206.25. Another creditor, represented by the attorney’s son, levied execution on the third tract, worth $4,000, which was sold to an agent of the first creditor for $500. Decedent’s executor offered to redeem from all the sales. Held, that equity would entertain a bill by the heirs to redeem on payment of what was equitably due.</p> <p>2. Same—Bona Pip® Purchaser.</p> <p>A judgment creditor and her attorney, the latter of whom fraudulently procured the sale of the debtor’s property under execution, himself becoming the purchaser both on his own account and for his client, are chargeable with notice, and are not bona fide purchasers.</p> <p>8. Same.</p> <p>To support the defense of bona fide purchaser, as against a claim of fraud in the vendor’s title, the purchase money must have been actually and fully paid.</p> <p>4. Same.</p> <p>The fact that one has accumulated a fortune by dealing in real estate, and therefore must have known that land was offered her at a grossly inadequate price, will preclude the defense of bona fide purchaser to a suit to impeach her vendor’s title as fraudulently acquired; but interest on the money paid by her may be allowed.</p> <p>5. Same.</p> <p>Purchasers at judicial sale are not bona fide purchasers, as against a claim of fraud on the debtor in the sale; the doctrine of caveat emptor applying.</p>

<p>In Equity. Suit to enjoin voting of stock of a corporation at an election for directors. On motion for preliminary injunctions.</p>

<p>On Exception to Report of Commissioners.</p>

In Equity. On objections to a bill for impertinence, which were referred to a special master, and on his report thereon, with the exceptions by both parties thereto. So much of the bill as is necessary for the presentation of the questions involved is as follows: “First. That George Francis Gilman, an inhabitant of the city and county of New York, in the state of New York, died at Bridgeport, in the state of Connecticut, on or about the 3d day of March, 1901. “Second.

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

<p>1. Collision—Steam Vessels Crossing—Duty to Vessel Having Right of Way to Keep Her Course.</p> <p>A tug was coming down East River liglit, with a strong ebb tide, at a high speed, probably exceeding 12 miles an hour over the land, as the ferryboat Vermont was starting across from Brooklyn. The Vermont signaled her intention of crossing ahead as the tug was some distance up the river, but, receiving no answer, she stopped, the tug being the privileged vessel. The tug was on a course which would have taken her from 100 to 200 feet to the westward of the Vermont, but, after overtaking and passing two other vessels, she changed her course several points to port, and almost at once came into collision with the Vermont. Held,, that the tug was in fault for the collision because of her change of course; that the Vermont was not chargeable with contributory fault either because her lookout was not properly attending to his duties or because she did not stop sooner or reverse, since she stopped well off the tug’s course, which was all that could be required of her.</p>

In Bankruptcy. On review of decision of referee. The following is the opinion of Referee Coxe: William Thompson, the bankrupt above named, was, on and prior to November 27, 1900, engaged in the livery stable business, at No. 57 Irving Place, borough of Manhattan, New York City.

In Admiralty. Dibel in rem for loss of tow, consisting of a combined dredge and pile driver, through the alleged negligence of the tug. The libelant, owning the dredge and pile driver (hereinafter called the pile driver) at Menominee, agreed with Mann Bros., in form, though in fact with Two Rivers Manufacturing Company, claimant, to let it for temporary use of the latter at Ford river, near Escanaba, at $25 per day.

<p>Rule for New Trial.</p>

<p>1. Bankruptcy—Involuntary Petition—Joinder by Creditors—Estopped.</p> <p>Where a secretary and treasurer of a corporation, which was a creditor of a bankrupt, agreed to act as the bankrupt’s assignee in his capacity as an individual only, such fact did not estop the corporation, which was not a preferred creditor under the assignment, from joining in a petition to have the debtor declared an involuntary bankrupt.</p> <p>2. Same—Corporations—By-Laws—Authority oe President.</p> <p>Where a by-law of a corporation provided that it should be the president’s duty to perform the duties of the executive department of the business, and that he should have authority to fix credits, adjust and settle claims, and transact, control, and supervise all the concerns of the b.usiness of the corporation, such by-law was sufficient to give the president authority to determine when bankruptcy proceedings should be instituted against its debtor, and his action in that behalf was conclusive until revoked by the board of directors.</p>

<p>1. Copyright—Infringement—Preliminary Injunction.</p> <p>In a suit for infringement of a copyright for a directory, proof that defendant bad in its office three pages concededly taken from complainant’s book, cut, pasted, and edited apparently for the puipose of being used as copy for defendant’s book, is sufficient to entitle complainant to a preliminary injunction, unless a denial of the intention to use such pages as copy is supported by a clear showing of the methods used by defendant, and the source from which its copy was obtained.</p>

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

<p>On Motion for New Trial.</p>

W. W. Swearingen, the defendant in error, instituted this action in the state court for El Paso county, Tex., from which court it was duly removed by the plaintiff in error to the Circuit Court.

This action was brought by John C. Dougherty, the plaintiff in error, in the state circuit court of Jefferson county, Miss., against the Yazoo & Mississippi Valley Railroad Company and the Pullman Palace Car Company, jointly, for personal injuries sustained by him by being thrown from a rapidly moving train of the defendant railroad company, through the alleged joint negligence of the defendants and their servants.

<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 New Jersey, in Bankruptcy.</p>

<p>1. Shipping—Charter Party—Delay from Charterer’s Naming Unsafe Port of Delivery.</p> <p>A firm of shipping agents chartered a vessel “as agents for charterers,” but without disclosing any principal, to carry a cargo of lumber from Pensacola to “any safe port” in the western Mediterranean. Before time for entering on the voyage, they chartered to respondents at an increased rate of freight. Held, that respondents were not bound as principals under the original charter, but were shippers charged with notice of such charter, and, while not held to the stipulations therein as to demurrage days and rate of demurrage, they were bound, within a reasonable time after loading, to name a safe Mediterranean port for delivery of cargo, and liable for the detention of the vessel necessarily resulting from their naming an unsafe port, for which the master refused to sign bills of lading.</p> <p>2. Same—Measure of Damages for Detention.</p> <p>Where a vessel, after she was loaded and ready to sail, with full crew on board, was detained through the fault of the subcharterer, who was not bound by the stipulations of the original charter as to rate of demurrage, and there is no evidence as to her future employment or ability to obtain it, but her gross yearly earnings are shown, such earnings will be considered, together with the demurrage stipulated for in her charter, in fixing the amount of damages recoverable for the delay.</p> <p>3. Admiralty—Pleading.</p> <p>In admiralty the parties are not held to great nicety in pleading, and where a libel states facts which warrant a recovery, and the real issues are tried, a recovery will not be denied because the libel counts on the breach of a charter which is not binding on respondent.</p>

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

<p>1. Principal and Agent—Apparent Authority op Agent Sometimes Equivalent to Actual Authority.</p> <p>A principal is bound to third persons, who act without notice or reasonable cause to believe that there is a defect of power, by the apparent authority with which he clothes the agent, within the scope of his agency, to the same extent as by the actual authority he confers upon him.</p> <p>2. Carriers—Apparent Authority to Trainmaster to Take Passenger on Freight Train.</p> <p>A trainmaster, who had no authority to permit passengers to ride upon freight trains without the order of the superintendent, but whose duty it was to issue orders to that effect to' conductors when directed to do so by the superintendent, and whose orders the conductors were required to obey without question, issued an order to a conductor without authority from the superintendent to carry a physician on his freight train, and the conductor did so. Neither the conductor nor the doctor knew, or had reasonable cause to believe, that the trainmaster had violated his duty and issued the order without authority from the superintendent. Seld, the act of the trainmaster was within the scope of his agency. He had authority to perform it under some circumstances. His master had clothed him with apparent authority to issue the order, and as against the conductor and the doctor, who had no notice or cause to believe that there was any defect in his authority, the apparent authority was as binding upon the railway company as actual authority would have been.</p> <p>8. Same—Presumption—Passengers on Freight Trains.</p> <p>In the absence of any rule or practice permitting freight trains to carry passengers, the presumption is that conductors have no authority to authorize them to ride thereon, and that one riding for his own convenience on a freight train, an engine, a hand car, or any other carriage of a common carrier that is evidently not designed for the transportation of passengers, is unlawfully there, and is a trespasser. Purple v. Union Pac. Ry. Co., 51 C. C. A. 564, 114 Fed. 123, 132; 57 L. R. A. 700. But this presumption may be overcome by proof of an order to the conductor, from the superior officer from whom conductors customarily receive such orders, directing him to carry the person on his freight train.</p> <p>4. Appeal and Error—Review—Errors of Court Below Alone Considered.</p> <p>In an ation at law the United States Circuit Court of Appeals is a court for the correction of the errors of the court below only. Where there was a fatal error at the trial, the appellate court will not ordinarily discuss and determine other questions of law, which were not considered or ruled by the court below.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>On the 31st day of December, 1901, the Hargadine-McKittriek Dry Goods Company, plaintiff in error, brought this action at law against John Robert Hudson, the defendant in error, founded on the record of a judgment recovered by the plaintiff against the defendant in the district court of Burnett county, Tex., on the 10th day of April, 1891, for the sum of $10,939.92. The defendant answered, admitting the recovery of the judgment, and setting up these defenses: (1) That, being a resident and citizen of the state of Colorado, he was on the 29th day of January, 1900, duly adjudged a bankrupt by the United States District Court for the District of Colorado, and that on the 17th day of April, 1900, he was duly discharged as a bankrupt by the order of that court from the payment of all debts provable against his estate on the 26th day of January, 1900; (2) that the plaintiff, prior to the 11th day of August, 1900, appeared before the referee in bankruptcy having charge of the defendant’s estate in bankruptcy, and filed for allowance against the defendant’s estate a claim founded on the identical judgment sued on in this action, which claim was, upon due hearing and consideration, disallowed by the referee, and that the plaintiff filed a petition for a review of the order and judgment of the referee by the United States District Court for the District of Colorado, whereupon the referee^ on the petition of the plaintiff, duly certified the claim and his ruling thereon to the District Court for review, and upon full hearing and consideration that court, on the 25th day of February, 1901, confirmed the ruling of the referee and entered judgment disallowing the plaintiff’s claim based on the judgment. The plaintiff’s replication admits that it filed for allowance against the estate of the bankrupt its claim, based on the judgment in suit, and that the same was disallowed by the referee, and upon review was also disallowed by the District Court; but it alleges the ruling of the referee in the cause, and the judgment of the District Court affirming the referee’s ruling, proceeded upon the ground that the plaintiff’s cause of action on the judgment was barred by the statute of limitations of the state of Colorado, and avers that it was not barred by the statute of limitations of the state of Texas, wherein the judgment was rendered, or of the state of Missouri. The replication further set up that the debt which was the foundation of the judgment sued on was created by fraud. On motion of the defendant the portions of the replication which we have epitomized were stricken out; the “motion to strike” seemingly performing the office of a demurrer. By agreement of the parties a jury was waived, and the cause tried before the court, which made a general finding in favor of the defendant and rendered judgment (C. C.; 111 Fed. 361), accordingly, and the plaintiff sued out this writ of error.</p>

Decree adjudging the steamer John H. Starin solely at fault and liable for the damages occasioned by a collision between the steamer and the schooner Allen Gurney, which caused the latter to sink. The claimant of the Starin appeals.

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

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

<p>1. Admiralty—Appeal—Findings op Fact.</p> <p>Findings made by a court of admiralty will be adopted by the appellate court where there is evidence to support them, and no serious mistake seems to have been made in the consideration of the evidence or in deducing inferences therefrom.</p> <p>2. Shipping—Maltreatment op Crew by Temporary Oppicer—Liability op Owner.</p> <p>A deck hand on a steamer, who has been selected by the officer in command to act as captain of the watch, and to exercise authority and control over other deck hands, is for the time being an officer of the vessel, and the owner cannot avoid liability for an assault committed by him upon another deck hand while so acting, on the ground that the two were fellow servánts.</p>

<p>1. Federal Courts—Habeas Corpus—Discharge of State Prisoner.</p> <p>A federal court or judge should not discharge on writ of habeas corpus a person in the custody of state authorities, on the ground that he is held in violation of the Constitution or of a law or treaty of the United States, unless the case is one of urgency, calling for immediate action; and this is the rule even though he is in custody for an act done or omitted in pursuance of a law of the United States, although in general such cases are ones of peculiar urgency, involving the authority and operations of the general government.</p> <p>3. Same—Act Done in Pursuance of Federal Law.</p> <p>Petitioner, acting as a police officer of a city, and claiming to be such, with a posse, attempted to arrest a deserter from the United States army under authority of Act Oct. 1, 1890, 26 Stat. 648, c. 1259, as amended by Act June 18, 1898, 30 Stat 484, c. 469 [U. S. Comp. St. 1901, p. 817], which provides that it shall be lawful for any civil officer having authority under the laws of any state to arrest offenders to summarily arrest a deserter from the military service of the United States, and deliver him into the custody of the military authority. The deserter, attempting to escape arrest, was fired upon and wounded by one of the posse, and petitioner was indicted and held in custody by the state authorities for such shooting. He petitioned a federal court, and obtained a writ of habeas corpus on the ground that the act for which he was held was one done in pursuance of a law of the United States. Held, that the question whether the law authorized the shooting in making the arrest being a doubtful one, and the evidence being inconclusive as to whether there was reasonable ground to believe it necessary to prevent the escape, and also as to whether petitioner was a police officer, either de jure or de facto, the court would not discharge him, but would leave him to present his defense under the federal law to the state court.</p>

<p>1. Bankruptcy—Powers of Court—Enjoining Suit in State Court.</p> <p>The bankruptcy law gives to courts of bankruptcy full power to enjoin all persons within their jurisdiction from doing any act that will interfere with or prevent its due administration, whether such persons are parties to the proceedings or not; and, where they are litigants in a state court, no rule of comity requires the court of bankruptcy to compel persons whose rights under the bankruptcy law are jeopardized by such litigation to resort to the state court for protection.</p> <p>2. Same—Involuntary Proceedings—Qualifications of Petitioners.</p> <p>The bankruptcy act of 1898 (30 Stat. 544, c. 541 [U. S. Comp. St. 1901, p. 3418]) maintains throughout a clear distinction between the proof and the allowance of claims; and in section 59b (30 Stat. 561 [U. S. Comp. St. 1901, p. 3445]), which provides for the filing of a petition in involuntary bankruptcy by creditors having provable claims, the term “provable claims” is not the equivalent of “allowable claims.” A creditor’s claim is provable, and he may join in such a petition, notwithstanding the fact that he has received a preference, which he will be required to surrender before his claim is allowed.</p> <p>8. Same—Creditor Having Attachment Lien.</p> <p>A creditor, who in good faith has obtained an attachment against his debtor’s property within four months, and which would be rendered void by an adjudication in bankruptcy, may join in a petition to have the debtor adjudicated an involuntary bankrupt, although the attachment has not been formally released; but in such case the court will require the attachment lien to be released before an adjudication will be made, where such creditor is a necessary petitioner.</p>

<p>1. Marine Insurance—Valued Policy—Effect of Abandonment and Payment of Total Loss.</p> <p>The value of a ship as fixed by a valued marine policy is conclusive on the parties to the contract. Where there is a total loss through collision, and she is abandoned by the owner to the insurer, the latter cannot impeach the valuation stated in the policy; and on the other hand, on payment of such value, the insurer becomes the owner of any salvage that may afterward be realized, and of the entire amount which may be recovered by suit against another vessel held in fault for the collision, although it may exceed the amount paid under the policy.</p> <p>& Same—Bights of Insurer—Becovery for Collision in Excess of Insurance Paid.</p> <p>Petitioners were insurers of a steamer owned by libelant under valued policies. The steamer was sunk in collision, and was abandoned by libel-ant to petitioners, who accepted the abandonment and paid her stipulated value. Subsequently, libelant brought a suit against the other vessel in the collision, in which cargo owners joined, and a decree was entered on account of the loss of the vessel in a sum considerably exceeding her insured value. Petitioners refused to come into such suit, being also insurers of the libeled vessel, but sought to prevent recovery therein, and notified libelant of their claim that it had no interest therein except for the protection of cargo owners. After the money in satisfaction of the decree had been paid into the registry of the court, they filed their petition under admiralty rule 43, claiming all of the fund awarded as damages for loss of the vessel. Held, that under the circumstances they were not chargeable with such laches, in failing to intervene under rule 34 and set up their contention, as precluded them from asserting their legal right to the fund, or as gave libelant any equitable right to more than reimbursement for its reasonable counsel fee and expenses.</p>

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

<p>t. Offenders against United States—Removal to District of Trial— Issce of Warrant.</p> <p>Under Rev. St. § 1014 [U. S. Comp. St. 1901, p. 716], authorizing a warrant of removal only where an offender has been committed in a district other than that where the offense is to be tried, a warrant for removal may not be issued before commitment of accused.</p> <p>3. Same—Arrest.</p> <p>A person found in one district, wanted for trial in another district for an offense against the United States, should, on a warrant issued in the district where he is found, be arrested (1) where an indictment has been found against him in the other district; (2) where on examining trial he has been held over by the committing magistrate in the other district to stand trial; (3) where a bench warrant has been issued for his arrest by a federal court of another district; (4) where a verified complaint of an offense committed by him in another district has been made before a judge or committing magistrate in such other district; and (5) where such verified complaint is made before such officer in the district where accused is found.</p> <p>8. Same—Application for Warrant of Arrest.</p> <p>It is preferable that application for warrant of arrest of one for removal to another district for trial should be made to the nearest United States commissioner.</p> <p>■4. Same—Issue of Warrant of Arrest—Probable Cause.</p> <p>The probable cause for issue of a warrant of arrest of one for removal to another district for trial is supplied by an indictment, or by a bench warrant, or by a verified complaint made before a committing magistrate of another jurisdiction, or by a record showing that such other magistrate had held accused over to stand trial.</p> <p>8. Same—Preliminary Hearing.</p> <p>Though numerous officers are given authority by Rev. St. § 1014 [U. S. Comp. St. 1901, p. 716], to hold the preliminary hearing of one arrested for removal to another district for trial, it is preferable that he should be taken before the nearest United States commissioner, who should first be reasonably satisfied as to the identity of accused, and should then fix his bail, or if he is charged with a nonbailable offense, or cannot or refuses to give bail, should commit him to await the action of the judge of the district as to awarding a warrant of removal.</p> <p>8. Same—Probable Cause.</p> <p>A commissioner on the preliminary examination of one arrested for removal to another district for trial may not require evidence of probable cause of guilt, where accused had been previously indicted in the district in which he is wanted, or has had a previous preliminary examination there or in the district from which he has fled, or a bench warrant without an indictment has issued for him; but, where there has been merely a complaint made against him before a committing magistrate, he, on offering evidence creating a substantial doubt as to the existence of probable cause to believe him guilty, is entitled to have the government required to furnish further evidence.</p> <p>7. Same—Sufficiency of Indictment or Complaint.</p> <p>The commissioner holding the preliminary hearing of one arrested for removal to another district for trial should consider whether the indictment or complaint, in substance, alleges an offense against the United States, resolving doubts in favor of the government, but should leave to the judges of the district questions as to the jurisdiction of the tribunal to which removal is sought.</p> <p>8. Same—Notice of Application for Warrant of Removal.</p> <p>One arrested for removal to another district for trial should be given seasonable notice of the time and place when application will be made for the warrant of removal, and apprised of his right to be present before the judge and to resist the application, and with the papers laid before the judge should be a return by the marshal showing when and how the notice was given.</p> <p>9. Same—Return by Commissioner.</p> <p>The commissioner holding the preliminary examination of one arrested for removal to another district for trial should transmit to the judge hearing the application for warrant of removal a statement of the proceedings had before him certifying the fact, if it is a fact, that accused admitted his identity, otherwise giving in narrative form the evidence on that subject, certified with the rest of the record, which should include all evidence heard, all papers considered, and a statement of the decision of the eommission'er.</p>

<p>In Bankruptcy. This is an appeal to the court by the New Idea Pattern Company from the order of Hon. William H. Comstock, referee in bankruptcy, made on the 6th day of December, 1902, reducing the claim of the said appellant from the sum of $261.05 to $121.84, and allowing such claim to be proved at the latter sum, provided the appellant pays into court the sum 'of $38.26, part of the sum received by the appellant on account of goods sold John J. Nicholas and paid during the four months preceding the filing of petition in bankruptcy herein.</p>

Motion to Remand. This is an ordinary action of ejectment to recover the possession of certain mining ground, and damages for the withholding thereof. The action was commenced in the state court.

<p>1. Removal of Cause—Ground for Prevention—Different Rule as to Measure of Damages.</p> <p>The right of a plaintiff to prevent a removal from the state court cannot be controlled by the fact that a different rule as to the measure of damages might be observed in the federal courts. •</p> <p>2. Same—Joint Liability of Resident Employes.</p> <p>The unsupported allegation of an unverified petition, that the resident operators of a nonresident telegraph company were jointly liable for a delay In delivering a message, was insufficient to prevent a removal, where the verified petition for removal was supported by the affidavits of such operators that neither of them were on duty nor had anything to do with either receiving or delaying the message; that the only message received from the alleged sender was addressed, not to plaintiff, but to another party; and that that message was received by another operator.</p>

<p>1. Bankruptcy—Fraudulent Statement in Schedule.</p> <p>A statement by a bankrupt in his schedule that, a life insurance policy was payable to his wife, when in fact it was an endowment policy, payable to his wife in case of his death, but to himself if he lived to the end of the term, which was less than two years after the filing of his petition, held to have been made in bad faith for the purpose of misleading creditors, when considered in connection with other acts tending to show that the misleading statement was intentional.</p> <p>2. Same—Right to Prove Debt after Expiration of Year—Fraud of Bankrupt.</p> <p>Bankr. Act July 1, 1898, § 57n, 30 Stat. 561, c. 541 [U. S. Comp. St. 1901, p. 3444], providing that “claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication,” except in certain specified cases, should not be so construed as to prevent proof of a valid claim after the expiration ol a year, where objection is not made by any other creditor or by the trustee, but by the bankrupt alone, and where the delay was caused by his own fraud in so misstating facts in his schedule as to make it appear that there was no estate, for distribution, in consequence of which but a single small claim was proved within the year.</p>

<p>1. Postal Laws—Offenses—Mailing Obscene, Lewd, or Lascivious Letter.</p> <p>The words obscene, lewd and lascivious as used in section 3893 of the revised statutes of the United States, as amended, have reference to that form of immorality which relates to sexual impurity; and if a sealed letter, not written in the proper exercise of professional duty or of any legitimate calling rendering the use of its language necessarj, contains matter offensive to the sense of chastity and naturally calculated or tending to suggest to or create in the mind of the addressee of the letter libidinous thoughts or to excite or give rise to sexually impure desires in the addressee, it is an offense against the statute to deposit it in the mails.</p> <p>(Syllabus by the Court.)</p>

<p>1. Preliminary Injunction—Board op Trade Quotations—Unauthorized Use—Quotations Obtained prom Other Source.</p> <p>The fact that defendant receives quotations not from the complainant board of trade, but from an “open board of trade,” the quotations of which are so sympathetic that in a few moments they are identical with those of the complainant, will not warrant a preliminary injunction.</p> <p>2. Same—Dependant’s Denial—Speediness op Final Hearins.</p> <p>Where defendants, sued to restrain their use of board of trade quotations, deny such use, and show that they obtain the same quotations from another source, and issues are made or can readily be forced by complainant so as to procure a speedy final hearing, a preliminary injunction will be refused.</p> <p>3. Same—Decision in District Court op Same Circuit—Effect. .</p> <p>Where a district court of the same circuit has refused a board of trade an injunction to restrain the use of its quotations by bucket-shops on the ground that it is a too nearly similar concern, a preliminary injunction, sought for the same purpose, will be refused until the ruling has been reviewed by the Circuit Court of Appeals.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon a verdict directed in favor of defendant in error, who was plaintiff below. The action was brought against defendant, impleaded with cosureties and a former collector of internal revenue for the district of Montana, Ambrose W. Lyman, now deceased, to recover $8,232.93 public moneys unaccounted for by the said Lyman, and alleged to have been taken by Lyman’s deputy collector, one Cabell. When the action came on for trial the complaint was dismissed as to the others, on the ground that at the time of the commencement of the action they were not residents of the Southern District of New York, and the court had no jurisdiction as against them. Judgment was entered against Laffan only.</p>

This hill was filed to restrain the defendant, R. T. Royal, from using the name “Royal” in connection with a baking powder made by him, upon the ground that the complainant has an exclusive right to designate the baking powder made by it by that trade-name. Upon the bill, answer, exhibits, affidavits, and counter affidavits a temporary injunction was granted against the particular label and forms of advertising shown to have been used by defendant.

This cause comes here upon appeal from a decree ’ of the Circuit Court, District of Vermont^ granting an injunction against the use of' the name “Remington” or its abbreviation “Rem” upon defendant’s typewriting machines, or in the sale thereof. The nominal defendant is a sales agent only.

<p>Appeal from and Petition for Revision of Proceedings in the District Court of the United States for the District of Massachusetts.</p>

<p>1. Equity Pleading—Allegations of Bill—Effect of Exhibits.</p> <p>Where a bill makes general allegations, in support of which exhibits are attached, the' allegations must be taken as qualified and limited by the exhibits.</p> <p>2. Release—Grounds for Setting Aside.</p> <p>A release by a formal instrument, executed under seal, between parties • fully cognizant of their rights, and assuming on its face to dispose of the entire subject-matter to which it relates, will not be lightly set aside or added to; and, while a court of equity will not hesitate to grant such relief’ in a clear case of mistake, uncertain allegations or doubtful proofs are not sufficient to warrant its reformation.</p> <p>8. Same—Reformation—Sufficiency .of Bill.</p> <p>A bill for the reformation of a written instrument by which the members-of a partnership transferred all their property to complaiivm+. wu-’i other creditors, and the latter, in consideration of such transfer, released the partners from any further liability, alleged that it was a condition of the agreement that defendant’s testator, one of the partners, should give complainant an obligation agreeing to pay so much of complainant’s debt as should remain unsatisfied from the proceeds of the property transferred; that, while such obligation was never executed, the decedent recognized the agreement; and exhibits were attached in support of such allegation, consisting of a statement of account, showing that decedent had made interest payments for some years after the release was executed, and certain letters between the parties. The letters of decedent, however, contained no reference to any such previous agreement, nor was there anything in the exhibits showing that the interest payments were made in recognition of any legal obligation. There was no allegation that any 'demand was ever made on decedent in his lifetime to execute the obligation referred to, nor that the alleged agreement therefor was made with the knowledge and consent of the other creditors joining in the release. . Held that, taking the bill in connection with the exhibits, it contained no such clear statement of the terms of the alleged agreement or of grounds for relief as would authorize the reformation of the release.</p>

Jessie May McPherson, the plaintiff in error, brought this action of replevin, without bond, against the Mississippi Valley Trust Company, the defendant in error, to recover the possession of certain moneyed securities. The parties waived a jury, and filed a written stipulation that the court should try the cause.

This action, was brought to recover for wrongfully causing the death of Gustav Marquardt, an assistant engineer of the Perry-Payne Company. This company was the owner of an office building in the city of Cleveland, Ohio. It had occasion to use an engine in the operation of its electric plant and otherwise, and purchased it from the Ball Engine Company, a manufacturer of steam engines at Erie, Pa.

This is an action of trespass on the ease. The plaintiff in error, who was the plaintiff below, is the owner of a tract of land bounded on its northern side by the river Rouge, and on its westerly side by a great public highway, called the “Detroit and Monroe Road,” which road crosses the river upon a public bridge at the northwestern corner of the plaintiff’s land. The river Rouge is a navigable stream emptying into the Detroit river, and wholly within the state of Michigan.

<p>1. Bankruptcy—Partnership—Adjudication against Individual Members— Authority of Trustee.</p> <p>Where all the members of a firm are adjudicated bankrupts, hut there has been no adjudication against the firm, the trustee appointed in the individual cases has no authority to interfere with firm assets, though all the cases were instituted simultaneously by the same creditor, and the same trustee appointed for all the partners.</p> <p>2. Same—Proceedings—Amendments.</p> <p>■ Amendments may be made in bankruptcy proceedings at any stage thereof, if otherwise authorized, regardless of the time that has elapsed.</p> <p>■ 8. Same—Individual Proceedings—Effect as to Firm—Amendment—Adjudication against Firm.</p> <p>In the contemplation of the bankrupt act of 1898 (Act July 1, 1898, 30 Stat. 544, c. 541 [U. S. Comp. St. 1901, p. 3418]), a partnership is a distinct entity, which requires a petition specifically directed against it, alleging an act of bankruptcy, in which it is expressly involved, and resulting in an adjudication against the partnership itself, irrespective of and in addition to any that may be made against the individual members; and simultaneous proceedings against the individual members of a partnership do not necessarily bring the partnership into court, so as to authorize an amendment calling for an adjudication against it.</p> <p>■ A Same—Partners—Individual Proceedings —Amendment—Adjudication against Firm.</p> <p>In bankruptcy proceedings simultaneously instituted by the same creditor against the individual members of a firm, separate petitions were filed against each member, and the bankruptcy acts charged were individual, and did not touch the firm, with the exception of a firm, assignment for the benefit of creditors, set up in an amended petition as an additional ground for the adjudication against the members. The trustee was appointed for the individual members only; being chosen by the combined vote of individual and firm creditors, instead of by the latter alone, as required by Bankr. Act 1898, § 5b, Act July 1, 1898, 30 Stat. 547, c. 541 [U. S. Comp. St. 1901, p. 3424], in partnership cases. The bankrupts objected, though unsuccessfully, to participation in the proceedings by firm creditors; and the firm creditors objected, likewise unsuccessfully, to the discharge of the bankrupts, on the ground that there were firm assets which had not been administered. Subsequently a firm creditor petitioned to have the firm adjudicated a bankrupt nunc pro tunc as of the date of the adjudication against the members, and to have the firm assets thus brought in. Held, that the proceedings were individual, and the amendment could not be allowed; the only remedy against the firm being to file a new and separate petition against it</p> <p>6. Same—Firm Assets.</p> <p>Bankr. Act 1898, § 5h, Act July 1, 1898, 30 Stat. 547, c. 541 [U. S. Comp. St. 1901, p. 3424], providing that “where one, or more, but not all of the members of a partnership, is adjudicated a bankrupt, the firm assets shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudicated,” being exceptional and negative, cannot be construed into affirmative authority for the administration of the firm assets in individual proceedings against all the partners, but rather recognizes the absence of any inherent necessity for throwing a firm into bankruptcy merely because its members have been adjudicated.</p>

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

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>1. Gift—Evidence to Establish—Question for Jury.</p> <p>While it is the rule that clear, strong, and convincing evidence should be required to establish a gift from one deceased, what fulfills such requirement is for the trier of facts to determine; and a court is not justified in dismissing a complaint in ejectment against the heirs at law of a decedent, based on the alleged delivery by the deceased to plaintiff of a deed conveying the property, because the only evidence to support such allegation is the uncorroborated and contradicted testimony of plaintiff. Such testimony being competent in a federal court, under Rev. St. § 858 [U. S. Comp. St. 1901, p. 659], its credibility is for the jury; and, where direct and positive, it is sufficient, if believed, to sustain the complaint.</p> <p>2. Instructions—Sufficiency of Exception.</p> <p>Defendants orally requested the court to charge that the jury .could' take into consideration the failure of plaintiff to call a person as a witness to corroborate her own testimony as to the execution of a deed, andi the court charged that the jury might take into consideration on both sides of the question the failure to call such witness. Held that an exception “to refusal of defendants’ requests to charge” did not raise the question of error in charging that the jury might consider, also, the failure to call the witness on defendants’ side.</p> <p>3. Same—Qualification of Requested Charge.</p> <p>Where the mother of certain witnesses was a defendant in an action of ejectment, it was not error for the court to call the attention to such fact, as qualifying a charge, given by defendants’ request, that such witnesses were not interested parties.</p> <p>' 4. Deed—Necessity of Seal—New York Statute.</p> <p>Under Laws N. Y. 1896, p. 593, c. 547, which provides that a grant of real estate in fee shall be “subscribed” by the grantor, such a deed is not required to be sealed.</p> <p>5. Evidence—Collateral Facts.</p> <p>Where the issue was as to the execution of a deed of gift by a decedent shortly before her death, and in connection with the disposition of all her property, testimony as to the disposition made of her personal property at the same time may properly be considered as throwing some light on the transaction.</p> <p>6. Ejectment—Liability for Mesne Profits.</p> <p>Defendants in an action of ejectment cannot be held liable for damages for withholding possession prior to the time when, by the death of an ancestor, they first obtained title, or a claim of title, to the property.</p>

<p>Appeals from the District Court of the United States for the Eastern District of New York.</p> <p>In Admiralty. Cross-libels for collision.</p> <p>This is an .appeal by both parties from the decree of the District Court for the Eastern District of New York, entered August 17, 1901, dividing the damages and directing that the claimant of the ship the Queen Elizabeth recover of the owners of the schooner Percy Birdsall the sum of $1,451.52. The decision of the District Court is reported in 100 Fed. 874.</p>

Ulysses G. Mason, the defendant in error, brought an action against Robert M. Faddis, the plaintiff in error, to recover damages in the sum of $2,840 for nonperformance of an agreement for the… Held: and weighed at the town of Wood Lake, and shrank three per cent. I have received on contract two thousand dollars ($2,000), and am to deliver all the heavy and fleshy cattle, numbering about three hundred and fifty, on or about Sept 1st, balance after Sept. 15th, Mason’s option.

This was an action brought by the defendant in error (hereafter called the plaintiff) against the plaintiff in error (hereafter called the defendant) for the recovery of the contract price of 8,060% feet of pipe furnished under a contract entered into through the following correspondence: On May 1, 1899, the plaintiff wrote the defendant, “Gentlemen: We offer you the following prices on secondhand pipe, f. o. b. cars your station. 40,000 feet 8-inch Matheson Jt., 22 lbs., at…

<p>1. Sale—Formal Execution of Contract—Waiver—Jury Question.</p> <p>Evidence in an action for damages for the breach of a contract for the sale of coal examined, and held to warrant submitting to the jury the question whether a formal execution of the contract had been waived by the seller.</p> <p>2. Trial—Submission of Question to Jury.</p> <p>Where different minds may honestly draw different conclusions from the same facts, the ease is one for the jury.</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>In an action brought by the Enoch Morgan’s Sons Company against John J. Gibson, to restrain the infringement of a trade-mark, in the Circuit Court of the United States for the district of Nebraska, that court, on September 11, 1900, entered a decree in favor of the appellant, whereby it adjudged: “(1) That the complainant is entitled to the exclusive use of the designation ‘Sapolio’ as a trade-mark and trade-name for cleaning, polishing, and scouring substances. (2) That an injunction issue herein perpetually enjoining and restraining the defendant, his clerks,” etc., “as follows: (a) From in any form or manner whatsoever, by means of labels, circulars, or publications of any kind, or by word of mouth or otherwise, making use of the word ‘Sapolish’ in connection with the manufacture or sale of a cleaning, polishing, or scouring substance, or any substance to be used for cleaning, polishing, or scouring, or any word like or substantially like said word ‘Sopolish’ in sound or appearance; and in like manner from making use of the word ‘Sapolio,’ or any word or words like or substantially like the said word ‘Sapolio,’ in sound or appearance; and from selling, and from offering to sell, or otherwise disposing of, a cleaning, polishing, or scouring substance of any kind, to the packages or receptacles containing which shall be in any form or manner whatsoever applied the word ‘Sopolish.’ (b) From manufacturing, selling, or offering for sale or otherwise disposing of a cleaning, polishing, or scouring substance of any kind put up in the form of a cake to which shall be in any form or manner whatsoever applied the designation ‘Soap Polish,’ and from in any form or manner whatsoever using said designation ‘Soap Polish’ in connection with the manufacture or sale of a cleaning, polishing, or scouring substance of any kind put up in the form of a cake similar to complainant’s, (c) From directly or indirectly, by word of mouth or otherwise, offering, selling, or delivering as ‘Sapolio,’ or when ‘Sapolio’ is asked for, a cleaning, polishing, or scouring substance not of complainant’s manufacture. (3) But nothing herein contained shall prevent the defendant from making use of the words ‘Soap Polish’ in connection with his article made in powdered form and sold in bulk.”</p> <p>Thereafter, on December 10, 1901, the appellant filed an affidavit in said cause charging that the defendant had made use, in connection with the manufacture and sale of a cleaning, polishing, and scouring substance, and a substance to be used for cleaning, polishing, and scouring, of the word “Sapolio,” by selling such a substance put up in every way like the can produced and filed with the affidavit as an exhibit. An order to show cause why he should not be punished for a contempt was accordingly issued and served on the defendant. To this order the defendant filed a return admitting that he had manufactured and sold a cleaning and polishing substance put up in every way like the can which had been produced and filed in connection with the affidavit. The defendant further stated in his return that the article which he was engaged in manufacturing and selling was made by him in good faith, without any intention of violating the decree of the court; that he had not put the article up in the form complained of nor sold the same until he had submitted the package to his counsel, and had been advised that the sale of the article in the form proposed would not be a violation of the decree; that the complaining party did not itself manufacture any scouring substance put up in the form of a powder, and did not sell any cleaning or scouring substance in that form, but that, on the contrary, the only product manufactured by the complainant and sold by it as “Sapolio” was a solid substance, put up and sold in the form of a cake in wrappers; and that the complainant did not manufacture any substance in the form of á powder put up in cans.</p> <p>On the hearing below the proof showed that subsequent to the entry of the aforesaid decree the appellee had put up in cylindrical pasteboard boxes, about four inches long and three inches in diameter, a substance in the form of a fine powder, which was used for scouring purposes, and that he was engaged in selling the same. The label pasted around this box bore the following words, printed in large white type displayed on a red background: “GIBSON’S SOAP POLISH. THE KING OF CLEANERS.” Underneath these words were the following, printed in blue ink: “A Scouring Powder;” and at the base of the label, printed in red ink upon a white back-ground, was the following statement: “This is not Sapolio but is as far Superior as Sapolio is to a Common.Brick.” Other writing on the label stated the advantages of- using a polish in the form of a powder, such as that manufactured by -defendant, over the use of a hard scouring substance made in the form of a cake. On the opposite side of the box was a newspaper clipping in such very fine type that it could scarcely be read, giving an account of the original action between the appellant and the appellee entitled “Sapolió vs. Soap Polish.” On the production of this evidence the lower court found that the order of injunction had not been violated, and discharged the rule to show cause. Thereupon the appellant prayed for an appeal, and it was allowed.</p>

<p>1. Carriers—Injuries to Passengers—Care Required.</p> <p>An instruction that a carrier was bound to exercise the highest degree of practical care to provide a Safe roadbed, sound cross-ties, and safe cars to transport passengers, and if defendant was negligent in either of these respects, and plaintiff was injured in consequence thereof, he was entitled to recover, was proper.</p> <p>2. Refusal of Requests.</p> <p>Where, in an action for injuries to a passenger, the court charged that defendant could not be held accountable for a derailment that was occasioned by a defect, either in the track or ear, against which defendant could not have guarded by the exercise of the utmost care, skill, and diligence, it was not error to refuse to charge that if the track, at the time of the derailment, was in good condition, defendant would not be liable on account of a defective track, and that if the derailment was occasioned by some defect in one of the trucks which could not have been discovered by the exercise of the “utmost care, skill, and diligence” defendant was not liable.</p>

Petition for Peremptory Writ of Mandamus. In November, 1900, the petitioner instituted his action in ejectment in the state court of Utah against the Highland Boy Gold Mining Company, a corporation, to recover possession of a certain strip of ground extending across a mining claim owned by him over which the mining company had erected an aerial tramway to transport its ores.

<p>1. Master and Servant—Injury to Servant—Contributory Negligence-Assumption of Risk.</p> <p>Plaintiff, who was employed, by defendant as a common laborer, and was without special knowledge of machinery, was sent by defendant, with two others, to the top floor of a building to start a freight elevator which had stuck. Plaintiff had on previous occasions started it by shaking, and, in attempting again to do so, the elevator fell and plaintiff was injured. Held, that he was not chargeable as matter of law with contributory negligence or with having assumed the risk, it not appearing that he knew the cause of the stoppage or the danger, that the elevator would fall if released, or that such cause or danger was obvious to one of his qualifications.</p>

This action was brought by Edward D. Sittel, the plaintiff in error, against Allen Wright and others, the defendants in error, to recover the possession of a lot, and the improvements thereon, in the town of South McAlester, in the Indian Territory. The first paragraph of the complaint sets out the conveyances *by which the plaintiff acquired his right to the property.

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

The libel was filed by marine insurance companies to recover damages paid by them to the owner of a cargo of flaxseed, which was injured by water while being conveyed from Duluth to Buffalo by the steamship C. W. Elphicke, in November, 1896. The District Court found the ship liable in the sum of $3,331, with interest and costs. The claimant appeals. The opinion below will be found in 117 Fed. 279.

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

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

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

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Appeals from two decrees of District Court, Southern District of New York. The first decree was for $3,518.60; the second decree (in cross-action) dismissed the cross-libel.</p>

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

District of Illinois. The bill was to restrain infringement of letters patent No. 584,407, for a curette, issued June 15th, 1897. The curette charged to be an infringement is one made in accordance with letters patent No. 626,625 issued June 6, 1899. The further facts are stated in the opinion of the Court.

<p>1. Patents—Infringement of Combination—Use of Equivalent Method or Material to Make Same Element will not Avoid.</p> <p>The use of a different, but mechanically equivalent, method or material to construct some of the elements of a patented combination will not avoid infringement where the principle or mode of operation is adopted, and the elements, when constructed, perform the same functions by the same means as, or by mechanically equivalent means to, those described in the patent.</p> <p>2. Same—Infringement—Presumption from Subsequent Patent or Infringing Device Overcome by Finding of Trial Court.</p> <p>The legal presumption of no infringement which arises from a subsequent patent upon a device that is alleged to infringe a prior patent is overcome by the finding of infringement by the trial court, which must be presumed to be correct, unless an obvious error of law or a serious mistake of fact is disclosed.</p> <p>3. Same—Combination of Patent 621,219 Infringes Patent 595,696.</p> <p>The combination described in letters patent No. 621,219, issued March 14, 1899, to George A. Burwell, infringes claims 5, 7, 8, 9, and 10 of letters patent No. 595,696, issued December 21, 1897, to George J. S. Collins.</p> <p>4. Same—Novelty—Issue of Defensive Patent Prior to Discovert or Invention by Patentee of Patent in Suit.</p> <p>It is indispensable to the maintenance of the statutory defense (Act July 8, 1870, 16 Stat. 208, c. 230, § 61 [3 U. S. Comp. St. 1901, p. 3394, § 4920]) that the device had been patented before the patentee under the patent in suit invented it that the defensive patent should have been issued before the patentee under the patent in suit made his invention. A prior application for the patent, or a prior invention by the patentee under the defensive patent, will not sustain this defense.</p> <p>5. Same—Applications of Same Inventor Pending at Same Time not Anticipatory.</p> <p>Where each of several applications which subsequently ripen into patents to the same inventor discloses all the inventions claimed in all the applications, and they are all pending at the same time, no one of the applications or patents can be used to anticipate any of the claims of any of the others which it does not itself claim and secure.</p> <p>6. Same—Anticipation.</p> <p>Neither the letters patent 585,909 to Collins nor the application on which it is founded anticipates claims 5, 7, 8, 9, and 10 of letters patent 595,696 to the same inventor.</p> <p>7. Same—Combinations of Old Elements.</p> <p>A néw combination of old elements, whereby an old result is attained in a more facile, economical and efficient way, may be protected by a patent.</p> <p>8. Same—Independent- Inventions Patentable where Advance in Art Gradual.</p> <p>Where the advance toward perfection in an art consists of many intermediate steps, and several inventors form different combinations or improvements, which score decided advances in the art, and accomplish the desired result with varying degrees of success, each is entitled to his own combination, so long as it differs from those of his competitors and does not include theirs.</p> <p>9. Same—Validity.</p> <p>The combination of claims 5, 7, 8, 9, and 10 of letters patent 595,696, to George J. S. Collins, dated December 21, 1897, is novel, useful, the product of the intuitive genius of the inventor, and these claims of the patent are valid.</p> <p>(Syllabus by the Court.)</p>

This cause comes here upon appeal from a decree of the Circuit Court, "Western District of New York, dismissing the bill. The suit was upon United States patent No. 342,268, May 18, 1886, to Wm. S. Doig, assignee ■of Smith & Doig, for improvements in box-nailing machines. This patent and another were declared upon in the action of Doig v. Sutherland (C. C.) 87 Fed. 991, and claims 1, 3, 5, and 6 were held valid and infringed.

<p>1. Patents—Infringement—Envelope Machines.</p> <p>The Heywood patent, No. 420,792, for improvements in machines for making envelopes, claims 14 and 15, which relate to mechanism for discharging the completed envelope from the folding box, are limited to the specific mechanism shown, the essential feature of which is the mounting of the front flap folder on a movable support, by means of which it is raised after the folding operation, leaving an aperture through which the envelope is discharged. As so construed, such claims are not infringed-by the machines of the Sherman patents, Nos. 648,674 and 672,919.</p>

<p>1. Patents—Invention—Means for Preventing Loss of Goods in Shipment.</p> <p>The Moekridge patent, No. 493,595, for means for securing railroads and shippers against loss of freight, consisting of a system of numbering applied to the cars and packages, the duplicating of the numbers on checks and shipping receipts, and a temporary receptacle on the ear for holding the checks in loading, is void on its face for lack of patentable invention.</p>

In Equity. Suit for infringement of letters patent No. 607,602, for a machine for cutting shoe-shank stiffeners, granted to George Ezra Morton Lewis, July 19, 1898, and No. 675,661, for a machine for cutting shank-pieces, granted to J. Lewis, June 4, 1901. On final hearing.

<p>1. Patents—Construction of Claims—Combination.</p> <p>Where a claim of a patent covers a combination of elements in a machine, without using language indicating that any one element is more or less important than another, a court is not authorized to hold any element nonessential.</p> <p>2. Same—Infringement—Yeneer Cutting Machines.</p> <p>In the Lewis patent, No. 609,513, for a veneer cutting machine, in view of the history of the application in the patent office, the pivoted clamp, the actuating screw, and the grooves, forming the specified means for holding the presser bar and the chamfering tools together, are essential elements of the combination described, and the patent is not infringed by a machine which does not contain such parts nor their equivalents.</p>

This action is brought by the plaintiff against the defendants to recover damages in the sum of $25,000, which she claims to have sustained by reason of an alleged infringement of plaintiff’s copyright of an alleged dramatic composition known as “X-Rays of Society.” The' complaint sets forth two causes of action, and first seems to set forth generally a simple action at law for damages for said alleged infringement, while the second cause of action seems to be an action…

<p>1. Public Lands—Validity of Patent from State—Land Previously Dedicated as Street.</p> <p>The state of Pennsylvania laid out a town with outlots, now the city of Allegheny, on a reserved tract along the north shore of the Ohio and Allegheny rivers, under Act Sept. 11, 1787, 2 Smith’s Laws, p. 414, which provided that “the streets, lanes and alleys of the said town and outlots shall be common highways forever.” By the survey and plan adopted a lane or street was laid out afterwards known as “Bank Lane,” extending along the shore, and fronting on certain outlots, which were platted and sold as bounded on the south by the lane. Eeld, that such action of the state, which in laying out the town acted as an individual or private proprietor, was a dedication of the lane to public use, and estopped it to thereafter sell the property, and that a patent issued by the officers of its land department 50 years later, purporting to convey a portion of the land included in such lane to a private purchaser, was without warrant of law and void.</p> <p>2. Adverse Possession—Requisites—Title to Support Ejectment.</p> <p>■While it is the established law of Pennsylvania that adverse possession for the statutory time will give such title as will support an action of ejectment, it is also the law that nothing short of actual, continued, visible, notorious, distinct, and hostile possession for 21 years will give such title; a mere claim of title or ownership of vacant land by an adjoining owner and the driving away of trespassers is not sufficient.</p>

In Admiralty. Suit in rem by the owner of the passenger steamboat City of Kingston to recover damages for the destruction of that vessel by a collision with the steamship Glenogle in the harbor of Tacoma on the morning of April 23, 1899; and cross-libel by the owner of the Glenogle against the libelant to recover damages for the injuries to his ship and losses which he sustained by the collision.

<p>1. Wobld’s Columbian Commission—Officees—Auditobs—Election—Eligibility.</p> <p>Under Act Cong. April 25, 1890 (26 Stat. 62), providing for the appointment of the World’s Columbian Commission, and section 4, which required the Secretary of the Treasury to call such commissioners together within 30 days after their appointment for the purpose of organization, and declaring that the commission at its first meeting shall organize by the election of such officers as they might deem expedient, such commission was authorized to elect an auditor from among its own members.</p> <p>2. Same—Compensation.</p> <p>Act Cong. April 25, 1890, § 19 (26 Stat. 66), providing that the officers of the World’s Columbian Commission shall receive such compensation as may be fixed by the commission, subject to the approval of the Secretary of the Treasury, authorized the Secretary of the Treasury to pass on the quantum of compensation fixed for officers by the commission only, and gave him no power to determine questions relating to the tenure or duties of officers so appointed.</p> <p>3. Same—Appboval of Compensation.</p> <p>Where the Secretary of the Treasury was fully advised as to all the facts relating to the fixing of salary for an officer appointed by the World’s Columbian Commission, his failure to approve or disapprove the same in writing, as authorized by Act Cong. April 25, 1890, § 19 (26 Stat. 66), would be construed as an affirmance of the salary fixed by the commission.</p> <p>4 Same.</p> <p>On submission of tbe resolution creating offices of auditors of tbe Columbian Commission to tbe Secretary of tbe Treasury, be replied that be declined, in view of tbe demands made on tbe appropriation for expenses of tbe committee on awards, to approve tbe payment of salary to sucb officers from tbe appropriation. Tbe Secretary bad no power to do more than disapprove tbe amount of tbe salary fixed, and thereafter, on a claim being filed by plaintiff as one of sucb auditors, the Secretary of tbe Treasury submitted tbe same to tbe Comptroller, who decided all questions in favor of complainant, after which the Secretary formally approved nunc pro tunc tbe action of the commission. Held, that sucb approval constituted a confirmation by tbe Secretary of tbe commission’s act in appointing plaintiff to such office and of tbe salary fixed.</p> <p>5. Same—Duration of Office.</p> <p>Where plaintiff was appointed auditor of tbe World’s Columbian Commission, as authorized by Act Cong. April 25, 1890, he thereby became an employé of tbe United States, and, in the absence of his resignation or removal from office, was entitled to compensation until tbe completion of the work of tbe commission by tbe filing of its final report with tbe President of tbe United States, on October 20, 1896, as required by Act April 25, 1890, § 13 (26 Stat. 64), dependent on appropriations in aid of tbe exposition.</p>

<p>1. United States—Criminal Jurisdiction—Authority oyer Place Acquired for Maintenance of Locks and Dams.</p> <p>Under Const, art. 1, § 8, cl. 17, giving the Congress power “to exercise exclusive legislation in all cases whatsoever over * * * all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings,” such power extends to land purchased by the United States, by consent of the legislature of the state, and used for the public governmental purpose of maintaining thereon locks and dams for the improvement of the navigation of a river, and the United States has exclusive jurisdiction to prescribe and punish criminal offenses committed thereon; and the fact that the legislative consent was granted after the purchase is immaterial so far as relates to offenses committed thereafter.</p> <p>2. Same—Sources of Jurisdiction.</p> <p>The exclusive jurisdiction of the United States to prescribe and punish criminal offenses committed on land or in a “place” occupied for governmental purposes may be derived either from article 1, § 8, of the Constitution, where the place was purchased by consent of the state legislature, or from an express cession of such jurisdiction by the legislature.</p> <p>8. Same—Statute Governing Criminal Offenses.</p> <p>Rev. St. § 5391 [U. S. Comp. St. 1901, p. 3651], making criminal offenses committed in any place under the jurisdiction of the United States, not prohibited or provided for by any law of the United States, subject to punishment in accordance with the laws of the state in which such place is situated, “now in force,” is not referable, for the purpose of ascertaining the state laws applicable, to the date when it was first enacted, in 1825, but to the date of the adoption of the Revised Statutes, in 1878, by sections 5595 and 5596 [page 3751], of which the prior act was superseded and repealed. In no event could such section relate back to an earlier date than April 5, 1866, when the old act was substantially reenacted.</p> <p>4. Indictment—Stabbing with Intent to Kill—Sufficiency under Kentucky Statute.</p> <p>An indictment for the offense of cutting and stabbing with intent to kill, committed at a place within the exclusive jurisdiction of the United States, situated within the state of Kentucky, considered, and held sufficient under the laws of the state applicable thereto.</p>

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

The defendants are seven corporations, one copartnership, and twenty-three other persons, and the petition is fairly summarized as follows: 1st. “That at the time of its filing they had been and then were engaged in the business of buying live stock at divers points throughout the United States where stockyards existed, and slaughtering the same at such places in different states and converting the same into fresh meats for human consumption. 2nd. “That they had been and…

<p>1. Construction on Contract—Agreement by Corporation to Secure “Working Capital. ”</p> <p>Defendant corporation assigned certain patents to plaintiff as collateral security for a loan, plaintiff executing an agreement to reassign the same if within a stated time defendant had “secured the sum of $5,000, as working capital for its business,” by the sale of treasury stock or otherwise. In subsequent correspondence plaintiff stated his understanding that such working capital had not been raised, and extended the time for it to be raised by the sale of stock, to .which statement defendant agreed in accepting the extension. No stock was sold for cash, but in a subsequent suit for infringement of the patents defendant claimed that it had complied with the agreement, and had become the equitable owner of the patents by reason of having obtained certain manufactured goods and a loan of money, mostly prior to the correspondence, from a third party, who thereafter accepted stock in payment to the amount of about $5,000. Held, that the agreement to obtain “working capital for its business” through the sale of stock contemplated the sale of such stock for cash which would be available for any corporate need, and was so understood by the parties as evidenced by their correspondence, and that the condition entitling defendant to a reassignment had not been fulfilled.</p>

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

<p>1. Public Lands—Adjustment of Railroad Grant—Suit by Government.</p> <p>Under section 2, Act March 2, 1896, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], which authorizes the bringing of a suit to recover the minimum government price of land erroneously patented to a railroad company under a grant, on request of the Secretary of the Interior, where a bona fide purchaser shall have presented his claim to the land to the department, such a suit may be brought in equity where, although no claim has been presented to the department, it appears that there is basis for one; the proof required being such as would authorize a cancellation of the patent but for the existence of such claim.</p>

<p>1. Interstate Commerce—Discrimination Between Shippers—Eemedy— Chancery Jurisdiction.</p> <p>Under its general chancery jurisdiction, a court of equity has power to remedy wrongs consisting of the violation by a carrier of the provisions of the interstate commerce law prohibiting discrimination between shippers.</p> <p>2. Samé—Suit by Government.</p> <p>Where there has been a preliminary inquiry and finding by the interstate commerce commission on the question of such unlawful discrimination, a suit against the carrier may be maintained by the government.</p> <p>8. Elkins Act—Offense Prior to Statute.</p> <p>The Elkins act (Act Feb. 19, 1903, 32 Stat. 847, c. 708), providing that the equity jurisdiction of the United States shall extend to cover a suit by the government against a carrier for unlawful discrimination between shippers, applies not only to violations of the interstate commerce law’ subsequent to its enactment, but to every violation, whether previously or subsequently.</p>

<p>1. Customs Duties—Importations—Liability op Consignee.</p> <p>Defendants ordered a consignment of waste by sample, which consisted wholly of cotton from a foreign manufacturer, which waste was entitled to free entry. The manufacturer shipped waste to fill the order consigned to defendant through certain persons, who were not defendant’s agents, at Suspension Bridge, which bill was indorsed to be delivered to N. When the goods arrived, N. declared, without authority, that the goods belonged to defendants, and entered them for consumption. On examination it was found that the waste was cotton and woolen mixed, and was therefore taxable for duty at 10 cents a pound. Defendants, on notification, refused to accept the waste under the contract, and it was sold for duty, resulting in a large deficiency. Held, that defendants were not liable for such deficiency under Act June 10, 1890, 1 Supp. Rev. St. 744, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886], declaring that all merchandise imported shall be deemed and held to be the property of the person to whom it-may be consigned.</p>

<p>In Equity. Petition by the Mobile Transportation Company seeking the enforcement of injunction granted in this cause Mav 18. 1868.</p>

<p>1. Mailing Nonmailable Letter—Indictment.</p> <p>Under Rev. St. § 3893, as amended by Act July 12, 1876, c. 186, 19 Stat. 90, and Act Sept. 26, 1888, 25 Stat. 496 [U. S. Comp. St. 1901, p. 2658], declaring an obscene letter, whether sealed as 'first-class matter or not, nonmailable matter, and declaring a punishment for depositing, for mailing or delivery, nonmailable matter, an indictment for depositing an obscene letter for mailing and delivery, setting it out, and showing that it commences with an address, is sufficient, without alleging it was inclosed in an addressed envelope or wrapper.</p>

<p>Submitted on Exceptions to Objections Filed by Creditors in Opposition to Petition for Discharge.</p>

In Admiralty. Libel to recover for damages suffered by the tug S. S. Coe in the loss of her wheel while passing through the draw of the respondent’s bridge crossing the Menominee river at Milwaukee.

<p>Appeal from Board of General Appraisers.</p>

<p>1. Collision—Vessel Breaking from Moorings—Defense of Inevitable Accident.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting upon a bark, which broke from her moorings during a storm, and came into collision with another vessel, to establish that the injury resulted from inevitable accident or vis major, but, on the con- , trary, to show that it was due to the insufficiency of her fastenings.</p>

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

<p>1. Bankruptcy—Preference—Payment to Dowress.</p> <p>The payment by a partnership within four months prior to its bankruptcy of a sum of money to the mother of the partners, on account of accrued interest on her statutory dower in real estate owned by the partners through descent from their father, hut upon which the mother had a lien for her dower and interest, cannot he assailed as a preference under the bankruptcy law.</p>

<p>1. Bankruptcy—Discharge—Petition—Objections—Practice.</p> <p>Where bankrupts have been allowed to file a petition for a discharge, notwithstanding more than a year has passed since the adjudication, the only question open thereafter is whether they are entitled to a discharge, and creditors seeking to oppose the discharge are confined to the statutory objections.</p> <p>2. Same—Remedy—Motion to Vacate.</p> <p>Though the court entertains a petition for a bankrupt’s discharge more than a year after the adjudication, on an insufficient showing, the remedy is a motion to vacate, and it is too late to contest the matter on the hearing of the petition.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the District of Washington.</p> <p>This is an appeal from the judgment of the District Court allowing the claim of the appellee against the firm of E. C. Clark, bankrupt. Clark had entered into business at Spokane, Wash., about August 1, 1899, with G. J. Reiter, under the firm name of Clark & Reiter. On June 1, 1900, Reiter sold his interest in the firm to Clark for the sum of $400 cash, Clark assuming and agreeing to pay off the existing debts against the firm. At that time the firm was owing, according to the findings of the referee, $18,358.96. Clark continued the business under the name of E. C. Clark. Some of the debts were reduced in amount, some were paid, some were increased, and new debts were-contracted. At the time of the dissolution, according to the books of Lake, the appellee, Clark & Reiter owed him $9,313.96. Lake loaned Clark thereafter $1,900, and took his note therefor. On January 28, 1901, Clhrk filed his petition in bankruptcy, and on the same day was adjudged a bankrupt. His schedule showed his assets to be $20,197.56, and his liabilities $27,005.78. Lake presented his claim against the estate, to which objection was made on the ground that he was a partner in the firm of Clark & Reiter, and a partner with E. C. Clark after the dissolution. On August 21, 1901, the referee disallowed the claim, on the ground that upon the testimony taken before-him he found that Lake was a partner in the firm of Clark & Reiter. Thereafter Lake filed his petition 'for a review of the order of the referee, and that officer certified to the court the question of fact whether Lake was such partner, together with the testimony which had been taken before him. The District Court filed an opinion, in which he reviewed the testimony and reached the conclusion that it was not sufficient to show that Lake was such partner. The court made no order, however, allowing the claim, and no judgment was entered thereon. The referee thereafter, in pursuance of the opinion of the District Court, on March 12, 1902, allowed Lake’s claim. The trustee thereupon filed his petition for review of that order, and on June 10, 1902, the District Court rendered judgment in the following terms: “Upon hearing said matter, it is ordered and adjudged that the order of the referee allowing said claim is approved and confirmed.” Within 10 days from the date of that judgment the present appeal was taken.</p>

There was in the county of Laurens, in the state of South Carolina, a mercantile firm composed of J. S. Blalock and L. W. C. Blalock, father and son, doing business under the name of the Goldville Manufacturing Company. In 1900 the firm enlarged its business, erected cotton gins and cotton oil machinery, and contemplated erecting a cotton mill. These gins and cotton oil machinery were upon a tract of land owned by the copartners.

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

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

<p>Appeal from the District Court o'f the United States for the Eastern District of Virginia, in Bankruptcy.</p>

This is an action of ejectment. There was a jury, and verdict for the plaintiff, and judgment thereon. The defendant below has sued out this writ, and has assigned error upon the charge of the court and upon certain rulings upon questions of evidence.

<p>1. Liens—Laborers’ Privilege under Louisiana Statute—Nature of Contract.</p> <p>Persons having contracts with a sugar .refinery to weigh and load cane on cars for shipment to the refinery' at an agreed price per ton, and who hire and pay the laborers to do the work, are independent contractors, and are not workmen or laborers on a plantation whose wages have a special privilege on the crop under the laws of Louisiana, nor clerks, secretaries, or agents entitled to a privilege for their salaries against the property of the refining company under such laws.</p> <p>2. Equitable Assignment—Checks Drawn on Special Fund.</p> <p>The superintendent of a sugar refinery kept a distinct deposit in a bank, separate from his general account, on which he drew checks stamped “Cash Account” in payment of wages to laborers and other items of expense, as distinguished from payments made in the purchase of cane, which were made by checks on his general deposit. He drew two checks on the “cash account,” upon which a second bank advanced the money to be used, and which was used, in the payment of laborers. Before such checks were presented for payment, a receiver was appointed for the refinery company, who obtained possession of the fund upon which they were drawn, which was sufficient for their ■ payment. Held, that under such circumstances the checks operated as an equitable ■assignment of so much of the special fund as was necessary for their payment.</p>

<p>Appeal from District Court of the United States for the Eastern District of North Carolina, at Wilmington.</p>

<p>' Appeal from the District Court of the United States for the District of South Carolina.</p>

<p>1. Preliminary Injunction—Review on Appeal.</p> <p>Evidence considered, and held to make a sufficient prima facie showing to sustain an interlocutory order granting a preliminary injunction, under the rule that such an order will not be reversed unless it appears that the discretion of the court was improvidently exercised.</p>

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

<p>1. Bankruptcy—Appeal—Insufficiency of Record. '</p> <p>Where the record on an appeal in bankruptcy does not clearly set forth facts necessary to a determination of the questions involved, it will be remanded to the District Court, with directions to have the facts fully reported to it and to pass on the same.</p>

<p>1. Bankruptcy—Priority of Debts Due for Wages—Application of State Statute.</p> <p>Laws N. Y. 1897, p. 772, c. 624, § 29, which provides that in all distributions of assets under general assignments for creditors wages for services rendered within one year prior to the execution of the assignment shall be preferred, does not entitle employés of a bankrupt to have wages earned within one year preferred under Bankr. Act July 1, 1898, c. 541, § 64, cl. 5, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], which allows priority for “debts owing to any person who by the laws of the states or United States is entitled to priority,” as the state statute does not purport to give employés priority except when the estate is distributed under a general assignment.</p> <p>3. Same—Assignment for Creditors within Pour Months—Effect,</p> <p>An assignment for creditors executed within four months of the filing of a petition in bankruptcy is a preference, within section 67, Bankr. Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], and void, and the property of the debtor passes to the trustee in bankruptcy free from all liens or trusts created by or resulting from it.</p> <p>8. Same—Exclusiveness of Special Provision.</p> <p>Bankr. Act July 1, 1898, c. 541, § 64, cl. 5, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], allowing priority for “debts owing to any person who by the laws of the states or United States is entitled to priority,” does not apply to debts for wages, as the exclusive rule in regard to such debts is supported by clause 4, which allows priority for wages earned within three months before the commencement of the proceedings.</p>

<p>1. Patents — Infringement — Device for Grinding Flats of Carding Machines.</p> <p>The Knowles & Tatham patent, No. 464,029, for a device for grinding the wire teeth of flats used in carding machines, the essential feature of which is a fixed guide to hold the plane surface of the flat in a position tangential to the grinding roll at the point of contact, is limited to the construction shown, in view of the prior art, and is not infringed by the device shown in the Penney patents, Nos. 544,441 and 620,353, for grinding flats having an irregular convex surface.</p>

<p>This bill in equity was filed herein, praying that the defendants, and each and every of them, may be restrained and enjoined, provisionally and perpetually, from directly or indirectly making, constructing, using, vending, delivering, working, or in any wise counterfeiting or imitating, claims i, 2, 3, and 4 of letters patent for dyeing apparatus, No. 354,281, dated December 14, 1886, and for which application was filed September 15, 1886, and also praying an accounting by the defendants of the profits they have acquired and die damages suffered by the complainant by reason of an alleged infringement of the said patent.</p>

<p>In Equity. Suit for infringement of letters patent No. 594,451 for a bicycle saddle, issued November 30, 1897, and No. 28,435, f°r a design for a bicycle saddle, issued March 29, 1898, both granted to B. F. Wheeler. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 530,940, for improvements in fireproof partitions for buildings, granted to John F. Golding December 18, 1894. On pleas to bill.

<p>1. Courts—Officers—Criebs—Per Diem.</p> <p>Rev. St. § 672 [U. S. Comp. St. 1901, p. 516], provides that, if any of the judges of the Circuit Courts are not present to open and adjourn any regular, adjourned, or special session, either of them may adjourn the court by written order directed alternatively to the marshal, or, in his absence, to the clerk. Section 715 [page 579] authorizes the Circuit and District Courts to appoint criers, to be allowed $2 per day, and authorizes the marshal to appoint bailiffs, to be paid by the marshal at the same rate, but that such compensation shall extend to only actual attendance. Sundry Civil Appropriation Act March 2, 1895, 28 Stat. 95S [page 580], amending section 715, declares that all persons employed under such section should be deemed in actual attendance when they attend on the order of the court, and that no such person should be employed during vacation. Held, that court criers and bailiffs appointed under section 715 were entitled to per diem for attendance on the Circuit Court on days when the court was adjourned by written order of the judge, under section 672.</p> <p>2. Same—Officers.</p> <p>Bailiffs and criers appointed to attend on sessions of the United States Circuit and District Courts, as authorized by Rev. St. § 715 [U. S. Comp. St. 1901, p. 579] are officers of the court.</p>

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

<p>1. Railroads —Pullman Car Porter—Injury—Previous Contract Releasing Railroad Company—Validity.</p> <p>A contract made by a Pullman car porter on securing employment, whereby he releases the company from liability for his negligent injury, ratifies contracts made by it with railroad companies carrying its cars for indemnifying the latter for injuries to Pullman employés, covenants to indemnify the Pullman Company on such account, agrees that the contract may be assigned to a carrying company for purposes of defense, and releases carrying companies from such liability, does not contravene public policy, and is valid; the porter not being a passenger of the carrying companies.</p> <p>2. Same—State Statute—Construction.</p> <p>Rev. St. Mo. 1899, § 2876, providing that no contract made between “any . railroad corporation” and any of its “agents or servants,” based on the contingency of his injury or death, and limiting the liability of such railroad corporation for damages “under the provisions of this act” (abolishing the fellow-servant rule), shall be valid, has no application to a contract made by a Pullman car porter with the company, whereby he releases it from liability for negligent injury, agrees to indemnify it for any liability incurred on such account to a railroad company carrying its cars under contract of indemnity for negligent injury to Pullman employés, agrees that the contract may be assigned to such carrying company for purposes of defense, and also releases the carrying company; section 4160 requiring that in statutory construction words shall be taken in their usual sense, and technical words according to their technical import, unless such construction be plainly repugnant to the context or legislative intent.</p> <p>3. Same.</p> <p>The statute is specially inapplicable where the carrying company is neither a Missouri corporation nor operating within that state, and the accident for which it is sued occurred in California; Rev. St. Mo. 1899, § 1163, providing that the term “railroad corporation” shall be taken to mean corporations, etc., owning and operating “railroads in this state.”</p>

<p>1. Dredge—Negligent Handling of Machinery—Liability fob Injury to Government Inspector.</p> <p>A dredge employed in government work, under a contract requiring the presence of a government inspector on board at all times while the work was going on, is liable for an injury received by such inspector while on board in the performance of his duties and in the exercise of due care, through the negligent handling of her machinery by those in charge.</p> <p>2. Negligence—Action for Injury—Fault of Libelant.</p> <p>The negligence of a libelant in admiralty in placing himself in a position of some danger will not be held to constitute him in fault where the defendant was chargeable with notice of such negligence, and might by the exercise of reasonable care have avoided the consequences, and where the injury resulted from an act of negligence on the part of defendant, of which libelant had no knowledge and which he had no reason to anticipate.</p> <p>3. Same—Evidence Considered.</p> <p>Libelant, who was rightfully on a dredge as a government inspector of the work, was injured by the breaking of a bitt around which one of the lines used to move the dredge passed before reaching the winch head, such breaking being the result of the negligence of the man in charge of the winch head in failing to throw it out of gear after the dredge had been previously moved, or to see that it was out of gear when the signal was given to turn on the steam again, although he saw libel-ant sitting on or leaning against the bitt, the consequence being that the winch head was revolved before the dredge had been released from her fastenings, and the bitt gave way under the strain. Hóld that, although libelant was in a position of some danger, he had no reason to apprehend the negligence of the winchman, which was the proximate cause of the injury, and was not chargeable with fault.</p>

<p>Application by Bankrupt for Order Confirming Report of Special Master and Granting a Discharge in Bankruptcy.</p>

<p>1. Collision—Steam Vessels Meeting—Confusion of Signals.</p> <p>A collision between tbe United States steamship Dolphin, which was passing up East river, within 250 or 300 feet of the Brooklyn Docks, and the ferryboat New York, crossing to Brooklyn, but at the time headed nearly downstream, held due to the fault of both vessels; the Dolphin being in fault for being sc near the shore in violation of the harbor rules, which required her to keep as nearly as possible in the middle of the river, and for not stopping and reversing after her third signal of a single whistle was crossed, the New York then being on her port bow, and only about 600 feet distant, instead of which she assented to such signal and turned to port; the New York being in fault for not having a proper lookout, for failing to hear or answer the first two signals from the Dolphin, and for then crossing the signal, and further confusing the signals by following with a single whistle when the vesseis were near together.</p>

<p>Í. PubIíTC Lands—Rights or Homestead Settlers—Cutting Timber.</p> <p>One who enters upon a tract of public land which is in fact subject to homestead entry, with the bona fide intention of acquiring title under the homestead law, has the right to cut timber thereon for a house, although he has not yet filed his entry, and he cannot be held liable for trespass, and for the value of-the timber so cut and used, although the local land office had previously been ordered by the land department not to accept any filing on such land.</p> <p>3. Same—Forest Reserves—Proclamation—Setting Apart.</p> <p>A proclamation setting apart public lands as a forest reservation under Act March 3, 1891, § 24, 26 Stat. 1163, c. 561 [U. S. Comp. St. 1901, p. 1537], need not be signed by the President, but, if made by the Secretary of the Interior, will be presumed to have been by direction of the President.</p> <p>3. Same—Lands Subject to be Set Apart as Reserve—“Public Lands.”</p> <p>The 15 townships of land in the Bitter Root valley, Mont., formerly occupied by the Flathead Indians, which, by the terms of Act June 5, 1872, 17 Stat. 226, c. 308, providing for the removal of the Indians therefrom, were made subject to sale, but not to entry under the homestead or pre-emption laws, are not public lands, in the sense of being a part of the general public domain; and since the authority given the President by Act March 3, 1891, § 24, 26 Stat. 1103, c. 561 [U. S. Comp. St. 1901, p. 1537], to set apart lands as forest reserves is confined to such public lands, the President has no power to set apart any of the lands in said 15 townships as such reserve, but, notwithstanding a proclamation purporting to create a reserve thereon, they remain subject to entry or settlement under the acts of Congress relating thereto.</p>

<p>1. Federal Court—Jurisdiction—Removal of Causes—Joint Defendants.</p> <p>In determining whether a cause of action against several defendants, some of whom are of the same citizenship as plaintiff, is removable to the federal courts on the ground of diverse citizenship, the allegations of the complaint alone can be considered, except where the petitioner for removal both alleges and proves that the defendants were wrongfully joined for the purpose of preventing a removal, in which case the allegations of the removal petition may be considered.</p> <p>2. Same—Carriers—Injuries to Passenger—Joinder of Defendants—Negligence—Allegation.</p> <p>A complaint in an action by a passenger for injuries joined the engineer and conductor of the train by which plaintiff was injured, who were of the same citizenship as plaintiff, with the railroad company, which was a citizen of a different state. It alleged that plaintiff was injured by reason of the derailment of the train, but contained nothing but a general allegation of negligence as against the engineer and conductor. Held, that under Code Civ. Proc. S. C. § 163, providing that plaintiff shall set out in his complaint a plain and concise statement of the facts constituting his cause of action, the complaint was insufficient as against the engineer and conductor, and their joinder as parties therefore constituted no objection to the railroad company’s right to remove the cause to the federal courts.</p>

<p>1 Removal of Causes—Pleading—Burden of Proving Allegations of-Fraud..</p> <p>It is the practice in the Western District of Kentucky to treat allegations in a petition for removal that defendants were joined for the sole purpose of preventing a removal, in fraud of the jurisdiction of the court, as -traversed, without an express denial, and, on a motion to remand, to-place the burden of proving such allegations on the defendant.</p> <p>2. Same—Fraudulent Joinder of Defendants.</p> <p>In an action in a state court against a nonresident express company to recover for a loss of money in transportation, based upon the contract of carriage, certain agents of the company, residents of the state, were-joined as defendants. A further allegation that two of such defendants were also members of the company, which was a partnership or joint* stock association, was not attempted to be sustained when controverted on a motion to remand after removal, and, on the contrary, was clearly disproved. Held that, since there could be no pretense that such defendants were liable on the contract, the action of plaintiff in joining them must be deemed to have been solely for the purpose of preventing a removal of the cause.</p> <p>3. Same—Right of Removal—One Defending foe Many. '</p> <p>Under Civ. Code Prac. Ky. § 25, providing that “if the question involve a common or general interest of many persons, or if the parties be numerous and it is impracticable to bring all of them before the court within a reasonable time, one or more may sue or defend for the benefit of all,” the treasurer of a joint-stock association defendant, who, by the laws of the state where organized, is authorized to sue or defend suits on behalf of the association, may enter his appearance as such treasurer in an action against the association, and may remove the same, where the requisite diversity of citizenship exists between him and the plaintiff.</p>

In Admiralty. Suit to enforce statutory lien for repairs. On exceptions to commissioner’s report.

<p>1. Statutes—Enactment—Amendment.</p> <p>Where a bill introduced into the Florida Senate was regularly passed by a call of the yeas and nays, and referred to the House, where, upon its second reading, a substitute was introduced by the judiciary committee of the House, regularly passed, and forwarded to' the Senate, which concurred in it as an amendment to the Senate bill, held, that such substitution of a new bill of the same character was but an amendment of the original bill, and only required a concurrence, without the formality of a call of the Senate, and was not in violation of the provision of the Constitution of the state, which required the yeas and nays to be taken upon the final passage of a bill.</p> <p>'(Syllabus by the Court)</p>

<p>1. Equity—Special Master—Authority.</p> <p>The special master to whom the cause was referred, to inquire and report what damages, if any, the defendants, or either of them, were entitled to by reason of the issuing of a restraining order, if the same had been improvidently issued, exceeded his prerogative, in finding that the order was improperly issued.</p> <p>2. Injunction—Restraining Cutting or Removal or Timber.</p> <p>Complainant sold land to one of the defendants, taking bonds for the purchase money, secured by mortgage on the land. Afterwards the grantee and his wife conveyed the land to their daughter. Afterwards the three sold all the timber on the land to a lumber company. Pending an action at law on the bonds,_ some $10,000 remaining unpaid, the timber on the land—its principal valúe—was being removed. Defendants were insolvent. Eeld a proper case for injunctive relief.</p> <p>8. Same—Bond—Damages.</p> <p>The damages by reason of the issuance of a restraining order are limited to the amount of the bond required of the one obtaining the order, unless it was obtained maliciously.</p> <p>4. Same—Sureties—Liability.</p> <p>There can be no recovery against the sureties on an injunction bond, until they have had their day in court.</p>

<p>1. Salvage—Saving of Stranded Schooner—Amount of Compensation.</p> <p>The schooner Edith L. Allen, laden with lumber, stranded off the coast of New Jersey near evening in February. The following morning a tug with a surf boat having a wrecking crew came to her assistance, and after three days’ work, attended with considerable danger, and after jettisoning a portion of her deck cargo, she was floated, and towed to New York. She was considerably injured, and leaked to such an extent that her pumps were unable to keep the water down, and she had eight feet of water in her when floated. She was also in danger of total destruction in case of an east wind. The tug was of the value of $50,000, and was damaged to the extent of $1,700 by striking bottom while attempting to pull the schooner off. • The schooner was worth about $25,-000 when she went ashore, and was damaged to the extent of $3,500. Her saved cargo was worth $8,000, and her freight $3,300. Held, that the salvors were entitled to an award of $6,500, besides the cost of repairing the tug.</p>

<p>1. Involuntary Bankruptcy—Service of Process—Leaving Copy at Residence-Sufficiency.</p> <p>Bankruptcy Act 1898, § 18a, Act July 1, 1898, 30 Stat. 551, c. 541 [U. S. Comp. St. 1901, p. 3429], as amended by Act Feb. 5, 1903, § 6, 32 Stat. 798, c. 487, provides that service on an involuntary bankrupt shall be made as in suits in equity, “but, in case personal service cannot be made,” then notice shall be published as provided by law in suits to enforce liens, such provision being made by Act March 3, 1875, c. 137, § 8, 18 Stat 472 [U. S. Comp. St. 1901, p. 513]. Equity Rule 13 provides that service of subpoenas shall be by delivery of a copy to defendant personally, or by leaving a copy at the dwelling house or usual place of abode, with some adult member or resident in the family. Form 4 (18 Sup. Ct. xx) prescribed by the Supreme Court, entitled “Order to Show Cause upon Creditors’ Petition,” directs that a copy of the petition, with a subpoena, shall be served by delivering to the defendant personally, or by leaving the same at his last and usual place of abode in the district. Held, that service by leaving a copy of the petition in involuntary proceedings, with the subpoena, with the clerk of a hotel, of which the bankrupt was proprietor, and where he usually resided, was sufficient, though the bankrupt was absent in another town, sick and unconscious, and died two days later, without regaining consciousness.</p> <p>2. Same—Member of Family— Hotel Clerk.</p> <p>The hotel clerk was an “adult member or resident in the family” of the bankrupt.</p>

<p>1. Injury to Servant—Risks Assumed.</p> <p>One of the men employed on a yacht'loaded a cannon on it and fired a salute. The captain then put another cartridge into the cannon, and left it loaded. The next morning a seaman in the regular course of his duty, and not knowing that the gun was loaded, proceeded to clean it. While doing so he pulled the spring near the breech, which fired the gun, and was injured. Held, that the risk was assumed.</p> <p>2. Same—Fellow Servants.</p> <p>The captain, in leaving the gun loaded, was a fellow servant of the seaman, and the owner was not liable for his negligence.</p> <p>3. Same—Employers’ Liability Acts—Due Care of Servant.</p> <p>The employers’ liability acts of both New York and Massachusetts only apply where' the employé “is himself in the exercise of due care and diligence at the time.”</p> <p>4. Same—Contributory Negligence.</p> <p>The seaman was guilty of contributory negligence in not ascertaining whether the gun was loaded. ></p>

<p>1. Building and Loan Association—Insolvency—Borrowing Stockholder— Credit for Dues.</p> <p>In the absence of contractual provision, a borrowing stockholder is not entitled to credit from an insolvent building and loan association for dues paid on his stock.</p>

On Demurrer to Indictment. This indictment is for conspiracy against the United States, and sets forth that Hughes, desiring to procure an appointment as letter carrier—a position in the classified civil service of the United States—and for the purpose of procuring the placing of his name on the list of persons eligible to appointment as letter carriers, and for the purpose of defrauding the United States, unlawfully agreed with Curley that the defendant Curley should…

<p>1. Customs Duties — Free List — Books for Literary Clubs.</p> <p>The Tariff Act July 24, 1897, par. 503, 30 Stat. 196, c. 11 [U. S. Comp. St. 1901, p. 1681], admits free of duty books specially imported for the use or by order of any society or institution incorporated or established solely for literary pursuits or for the encouragement of the fine arts. The charter of a club provided that it was formed “as a permanent social club, for the promotion of literary, artistic and antiquarian- tastes among the citizens of P., and such kindred purposes as the club may from time to time determine, by establishing and maintaining a library and reading room, and a collection of works of art and antiquities, either by loan or otherwise.” It appeared that while the club maintained a well selected and valuable library, etc., its social side was fully as prominent as its literary or artistic side. Held, that books for the club were not admissible free of duty.</p>

<p>1. Bankruptcy—Powers of Court—Setting Aside Sale by Trustee.</p> <p>A court of bankruptcy has general authority to set aside a sale of a bankrupt’s property, made under an order of a referee, on the ground of misconduct of the trusted in making such sale, without proof of fraud on the part of the purchaser, and although the order of the referee did not require the sale to be made subject to the approval of the court; and such a sale will be set aside on petition of a creditor who was prevented from bidding by the action of the trustee, on his giving security to make a substantially higher bid for the property at a resale.</p>

<p>In Admiralty. Action against charterer to recover balance of freight and demurrage.</p>

<p>1. Bankruptcy — Secured Creditor.</p> <p>Bankr. Act, § 1, cl. 23, Act July 1, 1898, 30 Stat. 544, 545, c. 541 [TJ. S. Comp. St. 1901, p. 3419], defines the words “secured creditor” to include a creditor having as security property assignable under the act, or owning debts for which others secondarily liable have such security on the bankrupt’s estate; and section 57, cl. “h” [TJ. S. Comp. St. 1901, p. 3443], provides that the value of such securities shall be determined by converting them into money pursuant to the agreement under which they were delivered to the creditors. Held, that these provisions clearly indicate that though in the city of Philadelphia a municipal tax is, generally speaking, a lien on the land assessed until a judicial sale produces a fund large enough to discharge the tax in full, the city is not, with reference to such taxes, a secured creditor, within the meaning of the bankruptcy act</p> <p>8. Same — Necessity to Prove Claims for Taxes.</p> <p>As the city of Philadelphia has a lien for municipal taxes only on the property assessed, it has no right to share in the general assets of a bankrupt delinquent taxpayer, and need not prove its claim in order to preserve its lien.</p> <p>• 8. Same — Taxes—Priority of Payment.</p> <p>Where real property belonging to a bankrupt’s estate in Philadelphia is sold by authority of the court, and produces a fund larger than the liens for municipal taxes on such property, these taxes must be paid before any dividends are allowed in favor of the general creditors, this being expressly required by the laws of the state, and by section 64, cl. “a,” Bankr. Act, 30 Stat. 563 [U. S. Oomp. St. 1901, p. 3447].</p>

<p>1. Collision—Steam Vessels Crossing—Fault in not Allowing Margin for Safe Navigation.</p> <p>A ferryboat crossing North river held in fault for a collision with a canal boat in tow of a tug passing up the river, on the ■ ground that, having agreed by signal to pass under the stem of the tow, she failed to allow sufficient margin for safe navigation.</p>

<p>1. Marine Insurance—Insurers of Cargo — Unseaworthy Condition of Vessel.</p> <p>The underwriters of a cargo not owned by the owner of the vessel are not discharged from liability because of the negligence of the master in leaving an intermediate port at which he had stopped with his vessel in an unseaworthy condition, instead of waiting to make repairs.</p>

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

<p>1. Customs Duties — Decision op Board op General Appraisers — Appeal.</p> <p>Where, on appeal from the decision of the hoard of general appraisers affirming the collector’s classification of imported merchandise, there is no-evidence to overthrow the classification, the decision of the board must stand.</p>

<p>1. Customs Duties — Free List — Museum or Preparation Jars. •</p> <p>Museum or preparation jars are admissible free of duty.</p> <p>2. Same — Reagent Bottles.</p> <p>Reagent bottles are admissible free of duty.</p> <p>3. Same — Surgical Scissors.</p> <p>Surgical scissors are admissible free of duty.</p>

<p>1. Tuq and Tow—Liability of Tug foe Loss of Tow—Burden and Measure of Proof.</p> <p>Before a tug can be held in damages for tbe loss of a tow which drifted from her moorings where she had been anchored during stormy weather, the court must at least have a reasonable apprehension, from the facts and expert opinions developed in the evidence, that the tow would have been saved in the exercise of good seamanship if the tug had gone promptly to her assistance.</p> <p>2. Same—Tow Breaking from Anchorage in Storm—Duty of Tug.</p> <p>A tug cannot ordinarily defend against liability for failure to go to the rescue of a tow which had broken from her anchorage in a storm on the ground that, as the tow had lost her anchors, and the tug would have been obliged to slip her own, which she was unable to raise by reason of the breaking of her windlass, she could not have handled the tow if recovered, having due regard to the rest of the fleet. Such a defense is ordinarily too speculative to be considered under the rules of the admiralty courts.</p> <p>8 Same.</p> <p>Evidence considered, and held insufficient to establish the liability of a tug for the loss of her tow by striking upon a sunken reef, which was, in effect, a lee shore, because it was not proven that good seamanship would have required her to attempt more than the rescue of the crew, owing to the thick weather, which prevented a knowledge of the position or distance of the reef toward which the tow was known to be drifting.</p>

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

<p>Appeal from the District Court of the United States for the District of Hawaii.</p> <p>This suit was brought by the appellees (plaintiffs in the court below) to obtain an injunction restraining the appellant, as Treasurer of the Territory of Hawaii, from issuing licenses under or by virtue of certain laws of the territory, and for a decree declaring such laws unconstitutional and void. The District Court for the territory of Hawaii entered a decree in favor of the appellees, declaring the laws in question to be in conflict with the Constitution of the United States, and awarded an injunction to the appellees. From this decree an appeal was? taken to this court.</p> <p>It appears from the amended bill of complaint that the appellees are respectively corporations organized and existing and doing business under the-laws of the territory of Hawaii, and individual residents and citizens of said', territory, all engaged in the business of general liquor dealers in said territory;, that the appellant is the treasurer of said territory; that certain of the appellees are doing business under what are known as “dealers’ licenses,” issued under the provisions of chapter 44 of the Session Laws of 1882, incorporated into the Penal Laws of the Hawaiian Islands of 1897, entitling them, upon the payment of a yearly tax of $500, to sell ardent spirits in one-gallon quantities or more, and bottled liquors in quantities of not less than one dozen, providing that no part thereof shall be drank or used on the premises where sold; that the appellee H. Hackfeld & Co., Limited, is doing business under a “wholesaler's license,” issued under the provisions of the same Session Laws of 18S2, and incorporated into the Penal Laws of the Hawaiian Islands of 1897, entitling it, upon the payment of a yearly tax of $500, to sell spirituous liquors in the original packages as imported, provided that no part thereof shall be drank or used on the premises where sold; and that the appellee Lawrence H. Dee is doing business under a so-called “retailer’s license,” issued under the same Session Laws of 1882, and incorporated into the Penal Laws of 1897 aforesaid, entitling him, upon the payment of an annual tax of $1,000, to sell any spirituous liquors by the glass or bottle on the premises specified between certain hours of the week days. It is alleged that under the licenses aforesaid the appellees have been and are now importing and selling, in addition to otlier spirituous liquors, certain beer and malt liquors wbicb are manufactured in various states of tbe Union, and are acting as tbe agents for sucb manufacturers. It is further alleged that on September 6, 1888, long after the adoption and approval of said Session Laws of 18S2, by an act of the Legislature of the Hawaiian Kingdom (chapter 46, Sess. Laws 1SS8) provision was made for the granting of licenses to sell malt liquors manufactured in the district of Honolulu at retail upon the payment of a yearly tax of $250, provided that the licensee shall not store or allow to be stored upon his premises, or sell, any wines, liquors, or spirits of any description whatever, except such beer manufactured in Honolulu in accordance with certain mentioned laws; and that this law was incorporated in said Penal Laws of 1897. It is alleged that during the three months prior to the filing of the bill herein the appellant had issued a large number of licenses to various parties in the city of Honolulu; that the appellees had demanded of said appellant the issuance of such licenses to them, but that appellant had refused to comply with or accede to such demands, upon the authority of and by virtue of said chapter 46 of the said Session Laws of 1888. The appellees allege that the issuance of said licenses to various parties for the sale of malt liquors in the city of Honolulu has resulted in, and will continue so to do, unless restrained, irreparable injury to the appellees; that they have invested large sums of money in the establishment, conduct, and management of their enterprises, and that their business was of great value, and highly profitable, until the issuance of said licenses by the appellant, which have greatly diminished and decreased the profits of their said business, and that for such diminution no fair redress can be obtained in any court of law. Wherefore they pray that the appellant be restrained from the further issuing of such licenses, and that the said chapter 46 of the Session Laws of 18S8, as incorporated in part 5, sections 479 to 483 of’ chapter 41 of Penal Laws of the Hawaiian Islands of 1897, be declared null and void, as in conflict with the Constitution of the United States. A demurrer to this bill was overruled, and the appellant then answered, admitting the issuance of the licenses to various parties in Honolulu for the sale of malt liquors brewed in the district of Honolulu, and that he had refused to issue such licenses to the appellees in the exercise of tiie discretion vested in him by law, and alleging that the appellees were suffering no wrong or injury, and had no interest in the matters of which they complained. It was denied that the act in question was unconstitutional. The appellees filed a formal replication, and the case proceeded to trial at once, resulting in a decree for the appellees, and the issuance of the injunction prayed for.</p>

The bill is filed by Louisville Banking Company, a Kentucky corporation, as a stockholder of New Albany Waterworks, an Indiana corporation, to set aside a lease made by the last-mentioned corporation to the Indiana Water Company, also of Indiana, and for injunctional and other relief.

<p>1. Taxation—Bank Deposit—Situs.</p> <p>A deposit in a bank to the credit of the depositor, and subject to his cheek, is a debt, and not property, and its situs for the purpose of taxation is in the state of the depositor’s domicile.</p> <p>2. Same—Equity Jurisdiction—Enjoining Collection of Illegal Tax.</p> <p>A court of equity has jurisdiction to enjoin the collection of an illegal tax where the person against whom it is assessed has no adequate remedy at law, as under the laws of West Virginia, where he is compelled to submit to the decision of a special tribunal, whose decisions are not subject to judicial review, and where, if he pays the tax under protest, it can only be recovered back by separate actions against each of the municipalities among whom it is distributed, and as to so much as is collected for state purposes he would be without remedy.</p>

<p>1. Railroads—Injuries at Crossing—Contributory Negligence—Evidence —Question nor Jury.</p> <p>Plaintiff, an infant, was driving with his parents, and approached a railroad crossing, at which he was injured, after dark. Plaintiff’s parents were unfamiliar with the crossing, and as they approached had a consultation about being near the same. The father pulled the horse down to a walk, and both father and mother looked and listened for a train, but saw nothing until the horse was on the track, when they were suddenly struck by defendant’s fast passenger train, which approached without ringing the bell, or blowing the whistle, or giving other indication thereof. The approach to the crossing wound down a hill, and the view of the track was obstructed by bushes, trees, and buildings. Before reaching the crossing, the track ran through a deep cut, and the evidence as to how far the headlight could be seen from the crossing was conflicting, but would have justified a finding that from 74 to 50 feet from the inside rail the track could be seen for a distance of from 300 to 443 feet, and that, with the exception of a space of 15 feet between points 50 and 65 feet distant from the track, the end of the cut could not be seen until a point 37 feet from the rail was reached. Seld, that whether plaintiff’s parents were guilty of contributory negligence was for the jury.</p> <p>2. Same—Contributory Negligence—Presumptions—Instructions.</p> <p>Where, in an action for injuries to plaintiff at a railroad crossing at night, the court charged that it was the duty of every person traveling on the highway to use reasonable care, and not to' approach a railroad crossing recklessly or heedlessly, but that he must use his faculties, keep his eyes and ears open, look in both directions, and take such care as a reasonably intelligent person is required to take under such circumstances, and the evidence showed that, though plaintiff’s parents had exercised due care in approaching the crossing, they might have failed to see the lights from the train, and would, therefore, have been justified in crossing, it was not error for the court to' refuse to charge that, because the lights of the train were visible prior to the accident, the fact that -they were not seen demonstrated or raised a presumption of contributory negligence.</p> <p>8. Same—Cake Kbquired.</p> <p>An instruction, in an action for injuries at a railroad crossing, that the law requires such care and prudence by the railroad company as is necessary to protect the lives and limbs of those who were lawfully on the premises of the railroad, and that it is the duty of every person traveling on a highway to exercise reasonable care and caution, and not approach a railroad crossing recklessly or heedlessly, but that he must use his faculties, keep his eyes and ears open, look in both directions, and take such care as a reasonably" intelligent person is required to take in such circumstances, was not objectionable as imposing a greater degree of care on the railroad company than on travelers on the highway.</p> <p>4. Same—Witnesses—Harmless Error.</p> <p>Where plaintiff’s witnesses in an action for injuries at a railroad crossing did not have equal opportunities with defendant’s witnesses for knowing whether the locomotive’s hell was rung and the whistle blown, error, if any, in an instruction on such subject, in requiring that the witnesses testifying thereon should have equally good opportunities for observation, was not prejudicial to defendant.</p> <p>5. Same—Objections to Evidence.</p> <p>An objection that a question asked a witness on cross-examination was incompetent and immaterial was insufficient to justify its exclusion on the ground that it was not relevant to any evidence given on the witness’ direct examination.</p>

<p>1. Trade-Mark—Geographical Term May not be—“Old Country.”</p> <p>Geographical terms and words in common use to designate a locality, a country, or a section of a country cannot be monopolized as trademarks. “Old Country” may not be a technical trade-mark..</p> <p>2. Same—Unfair Competition—Deceit Basis of.</p> <p>The deceit or xirobable deceit of the ordinary purchaser so that he buys or probably will buy the articles of one manufacturer or vendor as those of another is an indispensable element of a cause of action for unfair competition.</p> <p>8. Same—Dress which Distinguishes to Purchaser Using’ Ordinary Care Sufficient.</p> <p>It is the duty of a manufacturer or vendor to use a name and dress for his goods which will enable common xiurchasers, who use ordinary care to discover whose manufacture or property they are purchasing, to avoid buying his goods as those of his competitors. But he is not required to so distinguish his articles that careless and indifferent buyers will know by whom they are made or sold. His competitor has no better right to the monopoly of the trade of the negligent and indifferent than he has.</p> <p>4. Same—Use of "Our Country’s” against "Old Country” Does not Constitute.</p> <p>The plaintiff had established a large and lucrative trade in a superior brand of soap which it called and marked “Old Country Soap.” The defendant made and sold a soap which it called and branded “Our Country’s Soap.” The packages of the two manufacturers were of the same size and shape, but the dress of the defendant’s product bore the defendant’s name and its place of manufacture, and was so unlike that of the plaintiff that it was not likely to deceive a common purchaser who exercised ordinary care. Held, the use of the term “Our Country” as a brand or name for the soap under these circumstances did not constitute unfair competition.</p> <p>(Syllabus by the Court.)</p>

<p>1. Carriers—Interstate Commerce Law—Unjust Discrimination in Rates.</p> <p>Where the rates charged by a railroad to a particular point are not unreasonable in themselves, the fact that lower rates are charged for a longer haul to other points does not create an unjust discrimination against such point, in violation of the interstate commerce law, where such lower rates are due to active legitimate competition.</p>

<p>In Equity.</p> <p>The bill in equity filed in this cause asks that a license alleged to have been granted by Isaac H. Randall, the then owner of the patent in question herein, for the use of such patent, be terminated by the decree of this court; that the defendants be compelled to render an account setting forth the number of cars which they have made or caused to be made since the 8th day of August, 1889, containing advertising racks made under said license, however the same may have been incorporated in the said cars; that the defendants be compelled to pay to the complainant all the unpaid royalty, earned under said license and unpaid, at the rate of $3 per car (which he now asks to make $5 per car). The bill also demands such other and further relief as may seem meet under the facts proved.</p>

In Equity. Suit for infringement of letters patent No. 441,569, to Hermon W. Eadd, issued November 25, 1890, and No. 464,524, to Charles T. Segar, December 8, 1891, both for folding beds. On final hearing.

<p>1. Patents—Suits for Infringement—Parties.</p> <p>Where the assignor of a patent has expressly authorized his assignee to bring suits for infringement, he is not a necessary party to a suit by his assignee, even though the assignment is subject to a condition, on the nonfulfillment of which the title will revert.</p>

<p>L Salvage—Rescue of Abandoned Schooner—Amount of Compensation.</p> <p>The Lyman M. Law, a large, deeply laden coal schooner, was anchored off the shore of Cape Cod in the winter in a sinking condition, abandoned by her crew, and with her pumps unable to reduce the water in her hold. Passing steamers had paid no attention to her signals, and one refused to render any salvage service, but took off her crew, with their effects. ' After lying through the night, during which she had filled above the deck forward, the North Star, a large passenger steamer, on her regular trip from New York to Portland, the schooner Hope Sherwood, and the crew from the life station went to the rescue of the Law, and by 10 that night she had been towed by the steamer into a port. With her cargo and freight she was of the value of $36,000. The risk to the men from the two crews and the life-savers who went on board and remained to steer and work the pumps was considerable, as she was in danger of sinking at any time, and there was also danger that the North Star, which was not fitted for towing, might be disabled by the fouling of her propeller, owing to the unmanageable condition of the Law. The Sherwood, besides the services rendered by her crew, stood by during all the time to give any assistance needed. The North Star, with her cargo and freight, was of the value of about $460,000. The services were skillfully performed, and the Law and her cargo were saved without loss. Held, that $12,000 would be awarded as salvage, $9,500 to the North Star and crew, and $2,500 to the Hope Sherwood and crew.</p>

<p>1. Accident Insurance—Construction of Policy—Effect of Failure to Give Notice within Time Limited. '</p> <p>A policy insured the holder against bodily injury caused by accidental means, “subject and according to the agreements and conditions herein contained, which are to be considered as conditions precedent.” Then followed 13 clauses, designated by letters from A to M, inclusive, containing no conditions affecting any right of the assured. Clause N provided that: “In the event of any accident within the meaning of this policy happening to the assured, written notice * * * shall be given within 30 days of its occurrence, * * * and on demand such certificate * * * and other papers of proof of claim shall be furnished * * * as this corporation may reasonably require. Unless affirmative proof of claim is furnished within 13 months from the happening of accident, no payment shall be made hereunder. No legal proceeding for recovery hereunder shall be brought within 3 months after receipt of proof, * * * nor at all unless begun within a period of" 18 months after the happening of the accident.” Held, that whether or not the requirement of notice within 30 days was a “condition precedent” within the meaning of the remote provision relating thereto, the failure to give notice within such time did not work a forfeiture of the policy, no such effect being expressed," while it was so expressed with reference to the failure to furnish proofs or to begin suit within the time specified, and in view of the rules that policies are to be construed most strongly against the insurer, by whom they were written, and that, where penalties are expressly provided for in case of certain defaults, and not in case of others, the omission is to be deemed intentional.</p> <p>2. Same—Waiver of Condition—Requiring and Acceptance of Proofs.</p> <p>The provision for notice within 30 days, being for the benefit of the insurer, might be waived by it; and a petition on the policy, alleging that full proofs of the accident and death of the assured were furnished “in manner and form as required by the defendant,” and were accepted as sufficient and retained by defendant, is sufficient to show such a waiver.</p>

<p>Motion to Set Aside Return of Service. On reargument.</p>

<p>1. Contempt — Proceedings for Attachment — Delay—Effect.</p> <p>Where the facts on which a proceeding for an attachment for contempt are based were known to the petitioner for more than four years, the delay justifies the court in denying the application.</p> <p>2. Same.</p> <p>Though regarding a contempt solely in its quasi criminal aspect, as an offense against the order of the court, the court, after more than four years’ delay, should not inflict punishment therefor; especially' where the circumstances do not call distinctly for the court’s action.</p>

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

<p>1. Post Office—Embezzlement of Money-Order Funds—Custody of Funds</p> <p>A clerk in charge of a branch post-office station, authorized to issue money orders payable at other offices or stations, is intrusted in his official capacity with the care and custody of the funds upon which he is so authorized to draw in such sense that he is guilty of embezzlement, under Rev. St. § 4046 [U. S. Comp. St. 1901, p. 2752], where he issues money orders in payment of his private debts, which are paid to the holders from such funds.</p> <p>U. Same—Sufficiency of Indictment.</p> <p>An indictment for embezzlement, under Rev. St. § 4053 [U. S. Comp. St. 1901, p. 2755], charging that defendant was the clerk in charge of a branch post office, and as such clerk was intrusted with the sale of postage stamps and stamped envelopes, for which he refused and neglected to account, sufficiently alleges that defendant was “intrusted by law” with the sale of such stamps and stamped envelopes within the meaning of that section, in view of section 3918 [U. S. Comp. St. 1901, p. 2681], which provides that such stamps and envelopes shall be furnished to all postmasters, and shall be kept for sale at all post offices.</p>

<p>In Admiralty. Action against the owners of a tug to recover for loss of tow.</p>

This controversy grows out of the cause entitled “The Farmers’ Loan & Trust Company, Trustee, Complainant, vs. The Vicksburg, Shreveport & Pacific Railroad Company et al., Defendants,” No. 216 of the docket of the United States Circuit Court for the Western District of Louisiana, the style being the result of an order of consolidation of the several causes numbered 215, 216, and 217 of the docket, in equity.

This is an action on an insurance policy in the sum of $10,000, dated January 9, 1884, which was issued by the Mutual Reserve Fund Life Association on the life of Adam Roth, who died in the city of St. Louis, Mo., where he resided, on June 20, 1900. The action was originally brought by Margaret Roth, the widow of Adam Roth, against the Mutual Reserve Fund Life Association, which has since changed its name and become the Mutual Reserve Life Insurance Company.

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>C. B. Bullock and others, taxpayers of the Perris Irrigation District, together with the board of supervisors of Riverside county, state of California, seek by this writ of error to review the judgment of the court below rendered on proceedings which were instituted by the defendants in error to obtain a mandamus directing the- said board of supervisors to levy a tax for the payment of a certain judgment which had been rendered in that court. The judgment had been obtained in an action brought on August 26, 1898, by Robert H. Thompson against the Perris Irrigation District of Riverside county, Cal., upon certain delinquent interest coupons of bonds which had been issued by the said district. On the trial of the action the jury returned a verdict in favor of the plaintiff therein for the sum of $8,306.75, with -costs. On March 28, 1901, judgment was rendered in accordance with that verdict. A writ of error was prosecuted from said judgment'to this court, and on May 5, 1902, this court affirmed the judgment of the court below. In the meantime, on September. 26, 1901, the said Robert-H. Thompson appeared before the board of supervisors of Riverside county; and presented to'said board his petition, wherein he alleged the existence of said irrigation district, the issuance of its bonds, his purchase thereof, and the judgment which he had obtained thereon, and averred that said judgment was unsatisfied, and that the district had no funds applicable to the payment thereof, and no property upon which execution could he levied, and that the board of directors of said district had ever since the year 1895 neglected to cause any assessment or levy to he made on the property thereof for the payment of such interest on said bonds; and he demanded that said hoard of supervisors cause an assessment roll of said district to he prepared, and that it make the levy required hy section 39 of the act of the Legislature of the state of California approved March 31, 1897 (St. 1897, p. 267, c. 189), and that said levy he sufficient in amount to satisfy said judgment, with legal interest thereon from the date of its rendition. The hoard of supervisors, on September 16, 1901, denied the petition, and refused to cause any levy of assessment as demanded therein. On September 18, 1901, the said Robert H. Thompson filed in the court below his petition for a writ of mandamus to said hoard of supervisors directing them immediately to levy, in accordance with the law, an assessment on the real property within said irrigation district sufficient to pay said judgment. On the same day the court ordered that an alternative writ of mandamus issue, and the writ was thereupon issued. A motion was 'made to quash the writ, and a demurrer was interposed, both of which were overruled hy the court, and thereupon a peremptory writ of mandamus was ordered to he issued. On June 28, 1902, C. B. Bullock and others, claiming to he the owners of real estate within the boundaries of said district, applied for and obtained leave to intervene in said proceeding, and the order theretofore made for the issuance of a peremptory writ of mandamus was set aside, and the plaintiffs in error filed answers to the petition of the defendant in error. On September 8, 1902, the court rendered judgment directing the issuance of the peremptory writ of mandamus as prayed for hy the defendant in error. It is to review that judgment that the present writ of error is prosecuted.</p>

<p>1. Patents—Suit for Infringement—Equity Jurisdiction.</p> <p>A court of equity has jurisdiction of a suit for infringement of a patent where both a temporary and permanent injunction were prayed for, and the answer to the bill was due more than a month before the expiration of the patent, although no motion for a preliminary injunction was made; and, having thus acquired jurisdiction to grant both temporary and permanent relief, it cannot be defeated by the failure of defendant to observe the rules and plead before the patent expired, nor by any change of conditions occurring after the filing of the bill.</p> <p>2. Same—Pleading—Verification of Bill.</p> <p>A bill in equity for infringement need not be positively verified unless it is sought to be used as evidence on a motion for a preliminary injunction.</p> <p>3. Same—Laches.</p> <p>A complainant who brings suit for infringement within six months after the termination of other litigation which involved the validity and construction of his patent is not chargeable with laches which will defeat his right to relief.</p> <p>4 Same—Construction of Pleading.</p> <p>An allegation in a bill filed in 1899 that defendant has infringed complainant’s patent “since the 1st day of January, 1893,” is not to be construed as stating that the infringement began on that date and has continued ever since, so as to render the bill subject to demurrer for laches, but as charging that the infringement occurred subsequent to such date.</p>

In Equity. The bill in equity in this cause was filed for the purpose of procuring an accounting and an injunction because of the alleged infringement of complainant’s letters patent No. 609,928, dated August 30, 1898, for thill coupling.

In Equity. This is a suit in equity brought by the complainant, Christopher C. Bradley, against the defendant, Richard Eccles, for the infringement of two design letters patent issued to the complainant, and owned by him, and numbered and dated as follows: No. 32,747, dated May 29, 1900, thill couplings; and No. 28,571, dated May 10, 1898, washers for thill couplings. The bill of complaint demands án accounting and an injunction.

In Equity. Suit for infringement of letters patent No. 379,253, issued March 13, 1888, and No. 494,395, issued March 28, 1893, each for a slate picker, and granted to Septimus Thomas. On final hearing.

<p>1. Shipping—Construction op Charter Party—Dispatch por Discharging.</p> <p>A provision of a charter party for “dispatch for discharging” is to be construed with reference to the custom of the port where the discharge is made, which is fixed in large measure by the facilities at such port for discharging the kind of cargo carried.</p> <p>2. Admiralty—Pleading.</p> <p>A claim in a libel for demurrage should be specific, stating the number of days and the dates for which the demurrage is claimed.</p> <p>3. Shipping—Claim por Demurrage—Delay Awaiting Payment op Freight.</p> <p>An agreement between a master and a charterer that the latter shall mail a check to the master for the freight earned at once on being advised that the discharge of cargo has been completed to another port to which the vessel was to proceed is a waiver of strict performance of a provision of the charter party making the freight due at once on discharge, and where the check was so mailed on the day the discharge was completed, and was received and collected by the master, he cannot claim demurrage for the time between the discharge and payment, nor can he maintain a libel against the cargo for the freight, filed in the meantime.</p> <p>4. Same—Delay in Discharging.</p> <p>Evidence held not to establish a claim for demurrage against a charterer on the ground that dispatch was not made in discharging, as required by the charter.</p>

<p>1. Collision—Duty of Overtaken Vessel at Night—Stern Light.</p> <p>Under article 10 of the international navigation rules (Proc. Dec. 31, 1896; 29 Stat. 887), which requires a vessel which is being overtaken by another to show from her stern to such last-mentioned vessel a white light or a flare-up light, and provides that the white light may be fixed and carried in a lantern screened to show over an arc of 12 points, if an overtaken vessel elects to use a flare-up light, instead of a set screened light, it is her duty at least to maintain an efficient lookout astern, and to display the flare-up light as soon as an overtaking vessel can be seen.</p> <p>2. Same—Steamer Overtaking Schooner—Failure of Schooner to Show Light.</p> <p>A heavily laden schooner, sailing closehauled, 4 miles off the shore of Cape Cod, on a dark and overcast, but fairly clear, night, was overtaken and sunk in collision by the steamer Bernicia, which was on the same course, and going at a speed of 10 knots, while the schooner was making about 1% knots. The steamer carried side lights and a masthead light, which could have been seen a mile or more. She was at the time in charge of a competent mariner, well acquainted with the locality, and had an efficient lookout; but the schooner was not seen and could not have been until she was only about 150 feet distant, and too late to avoid the collision, although the steamer immediately put her helm hard aport. The schooner carried no stern light, and no light which could be seen from the steamer, but had a flare-up in the cabin, ready to light. She kept no lookout astern, and did not see the steamer in time to show the light before collision. Held,, that the schooner was in fault for not keeping a lookout astern and exhibiting a stern light to the steamer, as required by the rules; that the Bernicia, under the facts shown, was not in fault.</p>

<p>1. Towage—Damage to Tow in Passing Through Hell Gate—Improper Course of Tugs.</p> <p>Two tugs which were taking a tow of ten boats through Hell Gate held liable for the injury of a tow by striking on rocks on the Long Island shore, on the ground that they did not keep the proper course, which, in the state of the tide, was close to the opposite side, and in having insufficient power to properly handle so large and unwieldy a tow in making the passage.</p>

<p>Appeal by the Importer from a Decision of the Board of United States General Appraisers (G. A. 4,311) which Affirmed a Decision of the Collector of Customs at the Port of New York.</p>

<p>1. Customs Duties—Ascertainment of Component Materials—Apportionment of Labor.</p> <p>In manufacturing certain braids composed of cotton and india rubber, nine-tenths of the labor was employed on the cotton. Held, that under the provision in section 7, tariff act of July 24, 1897, 30 Stat. 205, c. 11 [U. S. Comp. St. 1901, p. 1693], that “the value of each component material shall be determined by the ascertained value of such material in its condition as found in the article,” it was proper to add this cost of labor to the original cost of the cotton, in finding the component material of chief value, rather than to apply the value of the labor equally between the cotton and the rubber.</p> <p>3. Same—Classification—Braids of Cotton and India Bubber.</p> <p>Braids of cotton and india rubber, cotton the more valuable component, are dutiable under the provision in paragraph 339, tariff act of July 24, 1897, 30 Stat. 181, c. 11 [U. S. Comp. St. 1901, p. 1662], for “braids * * * composed wholly or in chief value of flax, cotton, or other vegetable fiber, and not elsewhere specially provided for, * * * whether composed in part of india-rubber or otherwise.”</p>

<p>Appeal by the Importer from a Decision of the Board of United States General Appraisers (G. A. 4,149) Affirming the Decision of the Collector of Customs at the Port of New York.</p> <p>See Wootton v. Magone (C. C.) 54 Fed. 673.</p>

<p>Appeal by the Importers from a Decision of the Board of United States General Appraisers (G. A. 4,149) Affirming the Decision of the Collector of Customs at the Port of New York.</p>

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

This suit was brought by the United States on two ordinary annual distillers’, bonds,’ executed by Wilson Howard, with the defendant in _ error as surety ’thereon, one in 1896, and the other in 1897, and exactly similar in form and effect. The questions now presented for determination arise under a second amended petition in the cause.

<p>1. Federal Courts—Following State Decisions—Application of State Statute.</p> <p>A judgment of the Supreme Court of a state in an action by an administrator de bonis non to recover a lot, determining that, under the statutes of the state, such lot never came within the control or disposi.tion of such administrator, but was fully administered upon by his predecessor, is conclusive against the right of his assignee to- subject such lot to a lien in a subsequent action in a federal court</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. In 1893 the Lake Street Elevated Railroad Company, an Illinois corporation, executed a trust deed of its railroad in Chicago to' the American Trust ■& Savings Bank, an Illinois corporation, as trustee, and to the Farmers’ Loan ■& Trust Company, a New York corporation, as co-trustee, to secure the payment of bonds.

<p>1. Copyright — Infringement—Use of Citations from Law Books.</p> <p>Where the author of a law book collects all the citations available on his subject including those found in a previous copyrighted work on the same subject, and after examining the reports of the cases cited, cites such authorities as he considers applicable in support of his own text — such text being original and in no part copied from the earlier work — such use of the earlier work is a fair use and does not infringe its copyright.</p> <p>2. Same — Works Subject to Protection — Pirated Matter.</p> <p>The complainant, the publisher of a law encyclopaedia, which furnished the authors of its articles with paragraphs cut from copyrighted digests of other publishers, its authors using such paragraphs in the compilation of their articles, in some instances copying the language of such paragraphs without the consent of the owners of the copyrights, has no standing in a court of equity to charge another with infringement of its own copyright.</p> <p>3. Equity — He who Comes tnto Equity must Come with Clean Hands.</p> <p>Equity will refuse its aid to a complainant who has himself been guilty of the same inequitable conduct with which he charges respondent.</p>

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

<p>1. Specific Performance — Contract — Offer Conditioned on Payment within Limited Time.</p> <p>Defendants, after negotiations for the sale to complainants of the timber on a tract of land, but which had not resulted in any contract binding on them, executed a contract of sale of the timber, which they forwarded to a bank, with instructions to deliver the same on payment of a specified sum by complainants within a certain number of days, and to return the contract if payment was not made within such time. The time having expired, the contract was returned by the bank. Thereafter complainants deposited the money and demanded a conveyance of the timber, which was refused. Eeli, that the deposit of the contract by defendants was an offer, only, to which they had the right to attach any conditions, and that, not having been accepted by the payment of the money within the time limited, no contract was created which a court of equity could specifically enforce.</p>

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

<p>1. Maritime Liens—Supplies Furnished Under Contract—Evidence to Establish Agreement por Lien.</p> <p>Where supplies are delivered to vessels under a written contract with the owner, a lien will not be presumed, and does not exist, unless upon proof it can be found that the minds of the parties met on a common understanding that such a lien should be created; and, when there was no such understanding at the time a contract was made for supplying coal during a specified time, a subsequent conversation between the parties during the term, in which the purchaser expressed the opinion that a lien existed, which was not unequivocally assented to by the seller, who demanded other security, does not create a lien for subsequent supplies which can be enforced against a mortgagee of the vessel.</p>

In Equity. Suit for infringement of letters patent No. 429,516, for a process for making smokeless gunpowder, granted to Richard Von Freeden June 3, 1890. On final hearing.

<p>In Equity. On demurrer by complainant Sunset Telephone & Telegraph Company to cross-bill of defendants.</p>

<p>Action on Bond of a Postmaster.</p>

<p>Indictment for Conspiracy to Defraud.</p> <p>At the November Term, 1903, of the United States District Court for the Eastern District of Virginia, at Norfolk, an indictment under section 5440 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3676] was found against Aaron Marx, Louis Wasserman, Richard Eastwood, and J. A. Codd, charging that on the 6th of May, 1902, the said defendants “did in the city of Washington, in the District of Columbia, and at Norfolk, in the Eastern District of Virginia, and within the jurisdiction of this honorable court, then and there unlawfully and corruptly conspire to defraud, and did defraud, the United States, by confederating, combining, and agreeing together to bid fictitiously and fraudulently in the matter of certain bids, offers, and proposals, and in the making and execution thereunder of a contract to furnish the United States Navy, at the Navy Yard, at Norfolk, Virginia,” certain fresh beef and vegetables as in the said proposals mentioned; that said Wasserman and Eastwood had prepared their respective proposals in the said city of Norfolk, and had conspired with said Marx and with J. A. Codd, another beef contractor proposing to offer and bid on said contract, for a consideration paid by said Marx to said Wasserman and Eastwood, to change and raise the amounts so originally fixed in their said proposals to such other and higher sums as the said Marx should desire, so that the said Marx should be, among the said conspirators, the lowest bidder under the said proposals, which said bid was duly filed by said Marx, but that the same was greatly in excess of the current market price for the commodities to be furnished under said proposals. It further appeared that the original bona fide bid of the said Eastman, as sworn to before a deputy collector of customs at Norfolk, was for the sum of $6,600, and that of the said Wasserman the sum of $7,300, and the bid filed by the said Marx was for the sum of $15,400, on which bid, that being the lowest filed, the contract was awarded. The indictment further charges that the said Marx furnished said supplies at the Norfolk Navy Yard, and received from the United States at the Navy Pay Office at Norfolk, Virginia, certain sums of money on account of said contract</p>

<p>On Motion for New Trial.</p>

<p>1. Security foe Costs—Act July 20, 1892—Affidavit of Poverty—Dismissal of Action When Found Untrue.</p> <p>Where, on a rule to give security for costs, a nonresident plaintiff has interposed an affidavit of poverty under Act July 20, 1892, 27 Stat. c. 202 [U. S. Comp. St. 1901, p. 706], the action will be subsequently dismissed, on a rule taken for that purpose, where it is shown by the proofs that the allegation of poverty is not true.</p> <p>2. Constitutional Right to Trial by Jury—How Barred.</p> <p>The plaintiff, having invoked the provisions of the statute relieving from the requirement to give security for costs, is bound by its other provisions, which require the court to dismiss the action if the plea of poverty is found to be untrue, and cannot interpose the constitutional right to trial by jury thereto.</p>

<p>Appeal from Board of General Appraisers.</p>

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

<p>1. Customs Duties—Classification—Silk Trimmings—Mourning Crapes.</p> <p>So-called mourning crapes, consisting of all-silk fabrics in tbe piece, of tbe width known as “4/4,” are not dutiable as “woven fabrics in tbe piece not specially provided for,” under paragraph 387 of tbe tariff act Of July 24, 1897 (30 Stat. 186, c. 11 [U. S. Comp. St. 1901, p. 1669]), but as “trimmings * * * made of silk, * * * not specially provided for,” under paragraph 390 of said act (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]).</p>

<p>1. Tariff Duties—Reclassification by Collector.</p> <p>The collector may reconsider his classification of imports after they have passed into consumption.</p> <p>2. Same—Protests.</p> <p>A protest of the importer, asserting that goods were exempt under a certain paragraph, should he sustained where they are exempt, though under another paragraph.</p>

<p>1. Vendor and Purchaser — Construction of Contract — Lease with Option-to Purchase.</p> <p>A lease of land under seal,also contained an agreement by tbe lessor, “in consideration of the sum of one dollar and other good and valuable-considerations to it in hand paid,” to sell and convey the premises to-the lessee on the payment of a stated sum, “on or before three years from date.” Held, that the contract of lease and the option to buy were-separate and independent agreements; that .the right of the lessee-to exercise the option to purchase was not defeated by the service by the lessor of a notice terminating the lease for breach of its conditions,, even if such termination was justified and effective.</p> <p>2. Specific Performance — Contracts Enforceable — Option to Purchase. Real Estate.</p> <p>A contract in. writing, under seal, by which one party, in consideration of one dollar, payment of which is acknowledged, agrees to sell and convey to the other certain lands and premises on payment by the-other within a specified time of a stated price therefc-r, is valid and may be specifically enforced, the very thing contracted for being the right to a specific performance at the option of the purchaser.</p> <p>8. Lease — Performance by Lessee — Waiver of Notice to Quit.</p> <p>A lease of land for the purpose of quarrying slate thereon, which, also gave the lessee an option to purchase at any time within three-years, provided for the payment of a stated rental semiannually in advance, and also required the lessee to render a statement quarterly showing the quantity of slate produced during the preceding quarter, and to-pay a royalty after deducting the fixed rental, if there should be an excess. It required the lessee to work the slate veins in an efficient manner, and as would best promote the interest of all parties, and gave-the lessor the right to re-enter on the failure of the lessee to comply with any of its conditions. The lessee placed modern machinery and equipment on the premises, expended several thousand dollars in clearing an, abandoned quarry thereon of broken stone, and continued such work, as well as the taking out of slate, for something over two years, when he was served with a notice by the lessor terminating the lease for-breach of its conditions. There had previously been delays in rendering-the quarterly accounts, and at that time there was a considerable amount due in rents and royalties, but no serious objection had been made on. that account by the lessor. On receipt of the notice the lessee caused a statement to be made, which was gone over by the parties and agreed to, and paid the royalties shown to be due and the rental to a time-in the future. He continued the work, and subsequently rendered another statement covering the time to the end of the quarter in which the-notice was given, and paid the royalties shown to be due, and the stated rental for six months in advance of that time, which was accepted by the lessor without objection. Eeld, that the lessor had waived the right to insist on its notice, and that, even if performance of the lease by the lessee were a part consideration for the granting of the option to buy, he had reasonably performed so as to entitle him to exercise such option.</p>

In Admiralty. Libel in personam to recover damages against the respondent corporation, owners of the British steamship Montenegro, for personal injuries received by libelant, a passenger on said steamer, and in which action a foreign attachment was issued, and levied upon respondent’s ship.

<p>1. Internal Revenue—War Revenue Taxes—Proprietary Medicines.</p> <p>The medicinal preparations which are subjected to tax under Schedule B and section 20 of the war revenue act of 1898, Act June 13, 1898, 30 Stat. 456, 462, c. 448 [U. S. Comp. St. 1901, p. 2297], are the noncompetitive, more or less monopolistic, kinds which are protected against imitation by patent, trade-mark, or proprietary rights.</p> <p>2. Same—Plasters.</p> <p>Medicinal plasters which are in composition exactly the same as other plasters bearing the same name, put up by others and sold in competition with them, and based on the same well-known medical formulas, without any claim to special merit except With respect to the care exercised in the selection of ingredients and the manner in which they are compounded, are not “medicinal proprietary articles,” within the meaning of Schedule B of the war revenue act of 1898, 30 Stat. 462, c. 448.</p> <p>3. Same—Trade-Mark Medicines or Articles.</p> <p>A trade-mark medicine or medicinal article, with which patent and proprietary medicines and articles are coupled in the war revenue act of 1898, 30 Stat. 462, c. 448, and which is thereby subjected to tax, for the purposes of said act must be held to be a medicine or article as to which a monopoly has been secured by means of a trade-mark or trade-name, under which it is prepared and sold; and where a trade-mark used on an article merely signifies its origin, and has no other purpose or connection with it, being used on all articles and preparations made by the manufacturers to identify the same as their product, and to give them such recommendation to the public as is afforded by their reputation, it does not render such article subject to tax.</p> <p>4. Same—Representations on Merit.</p> <p>The fact that certain of the medicinal plasters put up and sold by a manufacturer had printed thereon such descriptive words as “A Soothing Dressing,” “Strengthening Plaster,” or “Perfect Mustard,” the latter being shown to mean in the trade only that it was ready for use, did not constitute such representation of merit or recommendations as to render them subject to tax under Schedule B and section 20 of the war revenue act of 1898, 30 Stat. 456, c. 448 [U. S. Comp. St. 1901, p. 2297], nor were they so taxable because as to some kinds the. packages bore the words “Patent Applied for.”</p>

<p>1. Statutes—Constitutionality—Act Relating to More Than One Subject.</p> <p>Act Pa. April 12, 1872 (P. L. 1872, p. 60), entitled “An act to regulate the execution and transfer of notes given for patent rights,” will not be held invalid by a federal court, under the provision of the state Constitution that “no bill shall be -passed containing more than one subject which shall be clearly expressed in its title” because the act in the body thereof includes “other negotiable instruments” as well as notes, and provides that its violation shall constitute a misdemeanor, in the absence of any adjudication by the state courts so holding during the 30 years the act has been in force, and in view of the construction placed upon such constitutional provision by the Supreme Court of the state. ■</p> <p>2. Constitutional Law—Validity of State Statute—Regulating Assign ment of Patents.</p> <p>The monopoly granted by a patent is a property right created under the Constitution and laws of the United States, and by those laws made assignable, and therefore a. state law which prescribes that negotiable instruments in the ordinary form shall not be given or accepted for an assignment of the patent itself is unconstitutional, as obstructive of the exercise of a right vested by federal law.</p>

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

<p>I. Amicus Curls;—Right to Appear—Question of General Interest.</p> <p>In an action involving the validity of the revenue bond scrip issued hy the state of South Carolina, to the amount of $1,800,000, under Act March 2, 1872 (Laws 1871-72, p. 80), and the question whether the state can be compelled to receive such scrip in payment of taxes, other citizens and taxpayers of the state have such an interest that they may properly be permitted to intervene and be heard through an attorney appearing as amicus curiae.</p> <p>2. Dismissal—Collusive Suit.</p> <p>An action in a federal court to recover real estate by a purchaser at tax sale who has obtained a deed purporting to convey the legal title will not be dismissed as collusive merely because the owner -of the property tendered state scrip in payment of the taxes, and on its refusal permitted the property to go to sale for the purpose of obtaining a judicial determination of the question of the validity of the scrip, where any agreement between the parties to collusively confer jurisdiction on the court is denied.</p>

<p>1. States—Emission of Bills of Credit—South Carolina Revenue Bond Scrip.</p> <p>The revenue bond scrip issued by the state of South Carolina, under Act March 2, 1872 (15 St. at Large S. C. p. 79), is invalid as in contravention of article 9, § 14, of the state Constitution of 1868, prescribing the mode in which debts shall be contracted by the state, and also because the certificates are in law and in fact hills of credit issued in violation of article 1, § 10, of the Constitution of the United States.</p> <p>2. Tax Sale—Validity—Insufficient Tender.</p> <p>A tender of payment of taxes due the state of South Carolina in part in revenue bond scrip of the state is an insufficient tender to invalidate a subsequent sale of the property for such taxes.</p>

<p>1. Public Lands—Cutting of Timber by Homestead Settler — Effect of Subsequently Acquiring Title.</p> <p>The United States cannot recover the value of timber cut from public land by a homestead settler during his residence thereon, which was continued until he became entitled to a patent; nor where, instead of completing his term of residence under the homestead law, he obtained title to the land by locating scrip thereon, relinquishing his homestead entry for the purpose. In neither case was there any trespass, nor did the United States sustain any loss which can be the basis of a recovery of damages.</p>

<p>1. Collision—Steam and Sailing Vessels—Failure of Steamer to Keep Out of the Wat.</p> <p>A steamer held solely in fault for a collision with a schooner, the primary cause of which was an endeavor on the part of the steamer t© compel the schooner to change her course, which she refused to do,- as was her right and duty under the rules, but kept her course until immediately before the collision when in extremis.</p>

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

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

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

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

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

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

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

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

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

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

<p>Trial on the common-law side of the court, upon the stipulation as to facts and a deposition.</p>

<p>In Bankruptcy.</p>