Volume 123 — Federal Reporter

Two cases are before us—one at law, and the other in equity. Both were heard and decided by the court below, without the intervention of a jury, at the same time and upon substantially the same record. The action at law was brought originally upon the coupons of certain bonds, and later, by supplemental petition, upon the bonds themselves, issued by the city of Defiance, Ohio, in 18S9, and held by the plaintiffs below as bona fide purchasers for value.

This was an action upon a policy of fire insurance, brought by B. S. Bhea & Son, a copartnership, for the use of two national banks named in the writ. The insured premises were destroyed by fire in November, 1899, and during the currency of the policy, and this action was brought to recover the full amount of the insurance.

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

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

The plaintiff in error, as special administratrix of the estate of her deceased husband, Thomas Bell, brought an action against the… Held: for $29,262.18, to the Bank of California, to secure his- liability on promissory notes to that bank in the sum of $50,000, with some accrued interest, and to secure the further sums of $3,976.69 and $3,859.10, his indebtedness to the bank on certain other shares of stock in other corporations; that Thomas Bell died on October 16,…

<p>i. Appeal—Liability on Supeksedeas Bond—Effect op Modification of Deckee.</p> <p>A decree foreclosing a contract for the sale of real estate gave the defendant until January 1, 1899, to make the deferred payments under the contract, and provided that in default a writ of possession should issue. Defendant appealed, and gave a supersedeas bond, conditioned, inter alia, for the payment of the value of the use and occupation of the premises from the time of the appeal until the delivery of possession to complainant The appellate court directed the modification of the decree by extending the time for performance under the contract to November 1st, and it was so modified. Held, that the effect of such modification was to keep the contract in force, including defendant’s right of possession thereunder, until November 1st, and that he was not liable on his supersedeas bond for the value of the use and occupation prior to such time.</p>

<p>In Error to and Appeal from the Circuit Court of the United States for the Western District of Pennsylvania and the District of New Jersey.</p>

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

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

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

<p>1. Corporations—Reorganization—Identity of Old and New Corporations.</p> <p>A new corporation, regularly organized by the officers and stockholders of an existing corporation for the purpose of acquiring its property and assets, and which does acquire the same by purchase at judicial sales, cannot be treated as a continuance of the old corporation, and liable at law for its debts, whatever may be its liability in equity to creditors of the old corporation in respect to the property, if fraud is shown in the transfers.</p> <p>2. Same—Legality of Organization—Collateral Attack.</p> <p>The legality of the organization of a corporation cannot be attacked collaterally in a private suit against it, but only in a direct action by the state.</p> <p>¶ 1. See Corporations, vol. 12, Cent. Dig. § 2316.</p>

<p>1. Master and Servant—Action for Injury to Servant—Proof of Master’s Negligence.</p> <p>In an action to recover for the death of an employe killed by the caving in of a mine, in which there is no question of contributory negligence or the negligence of a fellow servant, but the right to recover depends solely on the negligence of defendant, the burden of proof on such issue rests on the plaintiff, and the fact of the cave-in itself carries no presumption of negligence.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. §§ 881, 895, 898.</p>

<p>1. Damages—Tortious Destruction or Property.</p> <p>The measure of damages for the negligent destruction of a boat is Its value, and the owner is not entitled, in addition, to recover the value of its use during such time as would be required to rebuild it.</p> <p>2. Evidence—Opinions—Competency.</p> <p>The opinion of a witness is not competent evidence on a matter which could be. understood without peculiar knowledge or exceptional experience.</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York, which affirmed decisions of the Board of General Appraisers. See G. A. 4740.</p>

<p>1. Patents—Anticipation.</p> <p>A device which if later than that of a patent would infringe is an anticipation if earlier.</p> <p>2. Same—Change of Form.</p> <p>The fact that a simple element in a combination is made of one part instead of two, as in a prior combination, does not affect their substantial identity, or avoid anticipation, where each performs the same function and accomplishes the same result by means which are mechanically similar.</p> <p>8. Same—Invention—Extending Application of Old Device.</p> <p>The mere carrying forward or extending the application of a prior device with a change only in degree does not amount to invention.</p> <p>4. Same—Infringement—Twist Drill Grinding Machines.</p> <p>The Walker patent, No. 411,845, for a twist drill grinding machine, claim 1, which covers the combination of a drill rest with the holding mechanism, is void for lack of invention, in view of the prior art. Claims 2 and 6, which include as an element of the combinations therein described a screw-threaded axis of oscillation between the bracket carrying the holder and the other part of the machine, held to disclose invention as to such device, and to he valid, but not infringed.</p> <p>5. Same.</p> <p>The Walker patent, No. 425,839, for an improvement on the twist drill grinding machine of patent No. 411,845, claims 1 and 2, held valid. Claim 1 also held infringed, and claim 2 not infringed.</p> <p>¶ 3. See Patents, vol. 38, Cent. Dig. § 19.</p>

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

<p>1. Patents—Invention—Rubber-Tire Wheels.</p> <p>The Grant patent, No. 554,675, for a rubber-tire wheel, is .void for lack of patentable invention.</p>

This is a bill to restrain infringement of patent No. 491,091 for alleged improvements in supporting lugs used for the support of boilers. The patentee thus describes his invention: “Prior to my invention boiler lugs have been constructed of east metal. These lugs are necessarily heavy, and a single lug for a standard boiler, say five feet in diameter, would weigh at least one hundred pounds.

Cross-Appeals from the Circuit Court of the United States for the Southern District of Ohio. This cause came on to be heard upon an appeal from a decree of the court below, and also upon a petition for leave to review a decree of the court below in pursuance of a mandate from this court upon a former appeal in the same cause.

<p>In Equity. Suit for infringement of letters patent No. 460,426, for a drawbar and spring, granted September 29, 1891, to Ferdinand E. Canda. On final hearing.</p>

<p>In Equity. Suit for infringement of letters patent No*. 591,869, for an electric transformer, granted October 19, 1897, to Walter S. Moody. On final hearing.</p>

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

<p>In Admiralty. Suit for collision, brought under special act of Congress.</p>

<p>1. Diseased Animals—Driving from one State to Another—Statutes.</p> <p>Act May 29, 1884, 23 Stat. 31, § 6 [U. S. Comp. St. 1901, p. 299], provides that no carrier shall receive for transportation, or transport from one state to another, any live stock affected with a contagious disease; that no one shall deliver for such transportation any live stock knowing them to be affected with any contagious disease; and that no one shall drive on foot or transport in private conveyance from one state to another any live stock knowing them to be affected with any contagious disease. Section 7 [page 3184] provides that it shall be the duty of the Commissioner of Agriculture to notify any carrier doing business in or through any infected locality of the existence of said contagion, and that any carrier or owner of- such live stock in such infected district, who shall knowingly violate the provisions of section 6, shall be guilty of a misdemeanor, punishable in a certain way. BeU, that it is made a misdemeanor, and punishment provided therefor, for one to drive live stock from one state to another knowing them to have a contagious disease, though they are not driven from a district against which the Commissioner of Agriculture has declared a quarantine.</p> <p>2. Same—Interstate Commerce.</p> <p>Act May 29, 1884, 23 Stat. 31 [U. S. Comp. St. 1901, p. 299], making it a misdemeanor for one to drive live stock on foot from one state to another knowing them to have a contagious disease, is within the power given to Congress to regulate interstate commerce.</p> <p>8. Same—Information—Rules of Department of Agriculture.</p> <p>Though it may be better practice, it is not necessary that an information for driving diseased animals from one state to another, contrary to the statute and the rules and regulations of the Department of Agriculture, set out such rules and regulations; the court may take judicial notice of them.</p> <p>4. Same—Order of Department of Agriculture.</p> <p>An order of the Department of Agriculture giving notice that scabies exists among sheep in the United States, and that it is a violation of law to receive for transportation, to transport, or to deliver for transportation from one state to another, any stock affected with such disease, or to drive from one state to another any sheep knowing them to be affected with such disease, is proper, though not specifying any particular district within which a quarantine has been established.</p>

<p>1. Criminal Law—Validity of Sentence.</p> <p>A sentence of a defendant convicted of crime is legal so far as it is within the letter of the law and the jurisdiction of the court imposing it, and is only void as to the excess, provided such excess is separable and may be dealt with without disturbing the valid portion of the sentence.</p> <p>2. Same—Error in Becord—Power to Correct.</p> <p>Where the sentence to imprisonment of a defendant convicted of crime, as entered, did not contain a requirement of hard labor as provided by the statute prescribing the punishment, the court had jurisdiction at a subsequent term by a nunc pro tunc order to direct an amendment of the entry to include such requirement on conclusive evidence that its omission was an error of the clerk, and that the sentence as actually pronounced was in conformity to the statute.</p> <p>¶ 1. See Criminal Law, vol. 15, Cent. Dig. § 2528</p>

<p>In Bankruptcy. On review of decision of referee respecting claim •of Guggenheimer & Co.</p>

<p>In Chambers. On writs of habeas corpus and returns thereto.</p>

<p>1. Revenue—Liquors—Shipment—Masking Package.</p> <p>Rev. St. § 3449 [U. S. Comp. St. 1901, p. 2277], provides that, when any one ships any liquors under any other than the proper name or brand known to the trade as designating the kind and quality of the contents of the package, the same shall be forfeited, and he be subject to a fine, etc. The section was originally a proviso to section 29 of the act of July 13, 1866, 14 Stat. 156, c. 184, “to reduce internal revenue and to amend an act to provide internal revenue.” From section 21 (14 Stat. 153) the statute relates to distillers, brewers, manufacturers of wine, etc. Held, that the statute only applies to distillers, dealers in spirits, etc.</p> <p>2. Same—Information.</p> <p>An information under the statute which does not allege that the person who shipped the liquor was such a person as is forbidden by the statute to ship liquors under other than its true name is demurrable.</p> <p>8. Same—Marking—Caution to Carrier.</p> <p>The marking of a package of liquor, “Glass; this side up with care” —cannot be considered as a designation of the contents of the package, the same being merely a caution addressed to the carrier.</p> <p>4. Same—Failure to Designate.</p> <p>The statute does not forbid a shipment without any designation whatever.</p>

In Admiralty. Cross-libels to recover damages resulting from a collision between two steamships, which occurred on a foggy afternoon in the harbor of Seattle. On final hearing. Findings and decree that the collision resulted from the mutual fault of both vessels, and that the damages should be divided equally.

<p>1. Insurance—Liability of Agent for Foreign Company—Pennsylvania Statute.</p> <p>Act Pa. May 1, 1876 (P. L. 53, 66), § 48, which provides that “the agent of any insurance company of any other state or government, which does not comply with the laws of this commonwealth, shall be personally liable on all contracts of insurance made by or through him, directly or indirectly, for or in behalf of any such company,” relates to the carrying on of the business of insurance and the making of contracts within the state, without reference to the location of the property insured, and applies to contracts of marine insurance made through an agent within the state, although the vessel insured was not at the time within the state.</p> <p>3. Same—Estoppel to Deny Agency—Representations.</p> <p>Persons issuing policies of marine insurance on behalf of an insurance company, and afterward issuing slips or permits to be attached thereto, in which they described themselves as “agents,” are estopped to deny such agency, when it is sought to hold them liable as agents under a state statute.</p> <p>8 Same—Constitutionality of State Statute.</p> <p>A state statute, imposing a penalty for transacting business within the state as agent for a foreign insurance company which has not complied with the laws of the state, is not in violation of the Constitution of the United States, because it applies to contracts of insurance on property without, as well as within, the state.</p> <p>4. Same—Action against Agent—Limitation.</p> <p>Under Act Pa. May 1, 1876 (P. L. 53, 66), § 48, which makes the agent of any foreign insurance company which has not complied with the laws of the state personally liable on its contracts of insurance made by or through him, the liability of such an ■ agent is statutory, and not upon the policy, and a provision of the policy limiting the time for bringing an action thereon has no application to an action against the agent.</p> <p>¶ 4. See Insurance, vol. 28, Cent. Dig. § 27.</p>

<p>1, Trade-Marks—Preliminary Injunction against Infringement—Evidence of Title.</p> <p>The registration of a trade-mark confers no right or title thereto on the registrant, and is at best only prima facie evidence of his right, which is not sufficient to warrant a court in granting a preliminary injunction against its infringement.</p> <p>2. Same.</p> <p>A court should not grant a preliminary injunction against the infringement of a trade-mark until the complainant’s right thereto has been judicially determined, and the decision of the Commissioner of Patents in favor of such right in an interference declared between him and another applicant for registration, under the limited authority given therefor by section 3 of Act March 3, 1881, 21 Stat. 503 [U. S. Comp. St. 1901, p. 3402], is not such a judicial determination.</p>

<p>1. Life Insurance — Temperate Habits—Use of Alcoholic Stimulants— Misrepresentation—Sufficiency of Evidence.</p> <p>An applicant for life insurance stated that he was temperate in habits, and answered the question, “Do you use alcoholic stimulants,” “No.” The evidence showed that he had drunk intoxicating liquors to excess at intervals from his youth, and that he had been in the medical examiner’s hospital for treatment for inebriety. The medical examiner testified that the applicant had promised to reform, and he thought he had done so, and wrote the answers to the questions for him. A nurse at the hospital testified to his drinking twice about that time. Eeld, that as the representation and answer to the question referred to the present time, a finding that there was no misrepresentation was sustained by the evidence;</p> <p>2. Same—Intoxication—What Constitutes.</p> <p>An applicant for life insurance answered the question, “Were you ever intoxicated,” “No.” Many witnesses testified to his having been hilarious and noisy, and walking with difficulty from drinking, and to fast driving and inability to sit up straight when driving, though the witnesses had never seen him when he could not drive. Some witnesses testified to his acting as if crazy with liquor at times, and a physician swore to finding him in a state of acute alcoholism when examining him for commitment to a retreat. Eeld, that a finding that there was no misrepresentation was sustained by the evidence.</p>

<p>At Law. On demurrer to answer pleading the statute of limitations.</p>

<p>1. Marine Insurance—Action on Policy—Parties.</p> <p>A payee of a marine insurance policy, other than the owner of the vessel, who disclaims any interest, is not a necessary party to an action on the policy by the owner.</p> <p>'2. Same—Loss erom Stranding—Temporary Absence op Master not Unseaworthiness.</p> <p>An exception, in a policy of marine insurance on a vessel, of losses caused by the incompetency of the master or insufficiency of the crew, or other unseaworthiness, does not relieve the insurer from liability for loss or injury by stranding, which was a peril insured against, because the temporary absence of the master who constituted the crew may have been a contributing cause, where such absence was without the fault or knowledge of the owner, who had provided a competent master to render the vessel seaworthy in that respect.</p>

On Motion to Dismiss Appeal. The appellee, a Chinese person, was arrested upon a warrant issued by the United States commissioner at El Paso, Tex., for being unlawfully within the United States. Upon the hearing the commissioner held that he was a merchant, and lawfully entitled to remain in the country, and entered an order discharging him from custody.

<p>1. Wharves—Liability of Owner for Injury to Vessel—Unsafe Condition of Bottom.</p> <p>Tlie owner of a wharf, used for its own purposes, which negligently allowed the bottom around it to become filled with obstructions, so that a vessel could not safely lie there unless special care was taken to prevent it from grounding at low tide, and which had a loaded lighter brought there and moored on Sunday, during the temporary abseuce of the master, assumed the duty of seeing that the vessel was so placed as to be safe, and is liable for its injury, resulting from the failure to breast it out into sufficiently deep water.</p> <p>A Towage—Tug Taking Vessel without a Master—Liability for Injury.</p> <p>A tug which took the lighter from a safe anchorage without the knowledge of the master, and with no one on board, undertook 'to see that the duties of a master were properly discharged, and did not relieve herself from liability by delegating such duty to the wharf owner.</p> <p>3. Same—Injury of Tow—Contributory Fault.</p> <p>The master of a lighter which had been loaded on Saturday left her at the wharf that night, with no one on board, returning Sunday morning. He had no notice of any intention to move her on Sunday, which was not usual, but before his return she had been taken away by a tug at the instance of the cargo owner, and she was injured at the latter’s wharf, through the negligent condition of the bottom, and the failure to give her proper care and attention. Eelcl, that the owner was not chargeable with fault because of the absence of the master when the boat was moved.</p>

<p>In Bankruptcy. On review of action of referee on claim of Josephine Lee.</p>

In Bankruptcy. On rule against the bankrupt to show cause why she should not be required to surrender property to the trustee.

<p>In Admiralty. Suit in rem against cargo to recover demurrage.</p>

<p>1. Collision—Tow and Vessel at Anchor—Defective Steering Gear.</p> <p>A collision between tbe first of two tows on a long liawser and an anchored scow held to have been due to the fault of the tow whose steering gear had been out of order for some days to the knowledge of the owners, by reason of which she failed to follow the tug when the latter changed her course to pass the anchored vessel, but sheered and brought about the collision, although both the tug and the rear tow passed at a safe distance. The tug held, not in fault, having no knowledge that the tow was unmanageable and unable to follow, as she should have done.</p>

<p>In Bankruptcy. On certificate of referee concerning claim of E. O. Thompson’s executors.</p>

<p>In Admiralty. Actions to recover for injury to cargo after discharge.</p>

<p>1. Collision—Tow and Anchored Barge—Failure to Sound Fog Signals and to Keep Lookout.</p> <p>Evidence held to establish that at the time of a collision between the tow of a steam lighter and an anchored barge there was fog, and the barge was therefore in fault for not sounding fog signals, and that the lighter was also in fault for having no lookout.</p>

<p>1. Bankruptcy—Jurisdiction op Court—Summary Proceedings against Assignee.</p> <p>A court of bankruptcy is without jurisdiction to bring before it a general assignee of a bankrupt by a rule to show cause why he should not be attached for contempt, and to adjudicate thereon his liability to account for money of the estate which came into his hands while in the execution of his trust, and before he was ousted therefrom by the proceedings in bankruptcy.</p>

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

<p>In Bankruptcy. On petition of trustee to set aside a mortgage as a preference.</p>

<p>In Bankruptcy. On certificate of referee concerning claim of George K. Hubbard’s administrator.</p>

<p>1. Bankruptcy—Partnership or Individual Debt.</p> <p>An indebtedness contracted by a member of a partnership individually cannot be converted into a firm obligation by its entry on the books as such without the creditor’s knowledge, or by the making of payments thereon by firm checks, so as to preclude the creditor from proving it against the estate of the individual partner in bankruptcy.</p>

<p>1. Bankruptcy—Waiver of Lien—Acquiescence in Sale of Property. 0</p> <p>A landlord who had the right to distrain for rent, hut who had notice that the stock and fixtures of the saloon owned by the bankrupt tenant had been sold by the receiver, together with the license, for a lump sum, and although present in court permitted the sale to be confirmed without objection, cannot assert a claim against the proceeds for rent, where the license was a valuable asset, and it would he impossible to determine-what part of the proceeds was produced by the stock and fixtures.</p>

<p>1. Admiralty Jurisdiction—Torts—Personal Injury on Wharf.</p> <p>An action to recover damages for a personal injury received by libelant by falling from a dock when attempting to go on board a vessel after dark, charged to have been due to the negligence of those in charge of the vessel in removing the gang plank, is not maritime, and therefore not within the jurisdiction of a court of admiralty, where the right of recovery is based on the tort.</p> <p>8. Seamen—Action for Personal Injury—Sufficiency of Libel.</p> <p>A general allegation in a libel against a vessel to recover for a personal injury that libelant when injured was going on board pursuant to a contract of employment to serve on the vessel is insufficient to show a contract relation affording a basis for recovery, where the libel does not allege the terms of the contract nor that shipping articles had been signed.</p> <p>¶ 1. See Admiralty, vol. 1, Cent Dig. § 225.</p>

<p>1. Bankruptcy—Petition to Expunge Claim:—Practice.</p> <p>Under the provisions of general orders in bankruptcy No. 37 (91 Fed. xxxvi, 32 C. C. A. xxxvi), which extend the equity rules to proceedings in equity instituted for the purpose of carrying into effect the provisions of the act, the failure to file an answer to a petition seeking to expunge a claim justifies a decree pro confesso under rule 18, carrying the ordinary incidents and consequences of such a decree.</p> <p>2. Same—Effect of Amending Act.</p> <p>The amendatory act of February 5, 1903, c. 487, 32 J3tat. 801, by its express terms does not apply to nor affect any proceeding instituted before it took effect, and in such proceedings all of the provisions of the original act are to be enforced the same as though not amended.</p> <p>8. Same—Evidence of Insolvency.</p> <p>The books of a bankrupt are competent evidence on the question of his insolvency within four months of the date of the filing of the petition, and while not conclusive are ordinarily important evidence entitled to much weight; the schedules and inventory and appraisement are also evidence on the same question.</p>

Appeal by the importer from a decision of the board of United States general appraisers (G. A. 4568) which affirmed the decision of the collector of customs at the port of New York. In the opinion of the board, by Fischer, general appraiser, the goods under appeal are described as follows: “The protest under consideration relates to cotton portieres and cotton table covers.

<p>1. Customs Duties—Dress Patterns.</p> <p>Women’s dress goods in single patterns, comprising the material for the body of a dress and for trimming the same, in separate lengths or pieces, wool being the foundation of both material and trimming, embroidered in silk, was taxable for duty as “women’s and children’s dress goods,” under Tariff Act 1897, par. 369 (Act July 24, 1897, 30 Stat. 151, c. 11 [U. S. Comp. St. 1901, p. 1667]), and not as embroideries and articles embroidered by hand or machine, made of wool, or of which wool is a component material, under paragraph 371.</p>

<p>On Motion to Commit Defendants Dwyer and Fallon for Contempt of Court. '</p>

Appeal by the importers from a decision of the board of United States general appraisers (G. A. 525) which affirmed a decision of the surveyor of customs at the port of St. Louis.

<p>Appeal by the United States from a Decision of the Board of United States General Appraisers (G. A. 4,073), which Reversed a Decision of the Collector of Customs at the Port of New York.</p>

<p>1. Equity Jurisdiction—Enjoining Interference with Contract Rights— Parties.</p> <p>An exclusive licensee for the sale of patented articles within certain territory may maintain a suit in equity for an injunction against a third person, who with knowledge of the license is conspiring with the licensor to violate complainant’s contract rights by selling the patented articles within such territory; and such suit being based on the tortious acts of defendant, and not upon any contract relation, neither the licensor nor any co-conspirator is a necessary party.</p>

<p>Action to Recover Duties Paid. On demurrer to amended answer.</p>

<p>1. Insolvent National Bank—Recovery of Trust Funds from Receiver.</p> <p>Plaintiff furnished securities to the cashier of a bank, the insolvency of which was concealed from her, to be pledged as security for a note of the cashier, the proceeds of which were placed to the credit of such bank with its reserve bank. A portion of such proceeds was applied to the payment of an overdraft due the reserve bank, and the remainder stood to the credit of the insolvent bank at the time a receiver was appointed therefor, and came into his hands. Eeld, that plaintiff, having* paid the note to release her securities, was entitled to recover from the receiver the portion of the proceeds which came into his hands, and, as-to the remainder, was entitled to be subrogated to the right to dividends of the reserve bank, whose indebtedness it paid.</p> <p>2. Same—Interest.</p> <p>One recovering money which came intp the hands of the receiver of an insolvent national bank as a trust fund, of which she was owner, is-not entitled to interest thereon. '</p>

<p>1. Pabties—Capacity to Sue—Action fob Bbeach of Contbact.</p> <p>In an action for breach of a contract made wholly between plaintiff and defendant, an allegation in the complaint that, “as between themselves,” plaintiff and a third person had each a half interest in the contract, does not render such third person a necessary party plaintiff.</p>

<p>In Equity. On complainant’s motion for an order dismissing the-bill, with costs to, defendant to be taxed.</p>

<p>1. Unfair Competition—Imitation of Label.</p> <p>To warrant restraining the imitation of the label on complainant’s goods, it is sufficient if the imitation be close enough to deceive the unwary, incautious, or ignorant purchaser.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Complainant was the manufacturer of a bottled beverage known to the trade as “CaufCman’s Ginger Brandy.” Defendant sold a similar article; his label being of the same size, shape, and color as that of complainant. The color, size, and position of the printed matter were alike. The description setting forth the nature and quality of the article, as well as the division of the label into lines, and its decoration with scrolls, and the location of the manufacturer’s title, were similar. Defendant used a “caution” label of the same size, color, and arrangement of printing as complainant, and possessing a subscription of the maker’s title. The word “Imperial” was substituted for “Cauffman’s,” and the word “Celebrated” was omitted, and the wording of the “caution” and the name subscribed thereto were dissimilar. Held, that defendant’s use of his label would be enjoined.</p> <p>¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.</p>

<p>J. Parties—Suit by Trustee to Enforce Trust.</p> <p>A trustee to wiiom an interest in a legacy was assigned to secure the payment of certain judgments against the legatee may maintain a suit to set aside conflicting assignments, and to establish the priority of his own, without joining his cestui que trust</p> <p>& Same—Suit to Establish Assignment of Legacy.</p> <p>To a suit by the assignee of a legacy against the executor and the holders of conflicting assignments to set aside the latter and establish the priority of complainant’s assignment, the legal representatives of the testator are not necessary parties defendant.</p>

Appeals from the Circuit Court of the United States for the District of Kansas. This action was brought by the Keene Five Cent Savings Bank, a New Hampshire corporation, the appellant in case.No. 1,795, and one of the appellees in case No. 1,796, to foreclose a mortgage on lands situated in Marshall county, Kan. The bill alleged, in substance, that Gavin Reid and Elmira Reid on October 14, 1886, executed a note in favor of Fanny TJ.

<p>1. Water Companies—Duties—Construction of Idaho Statutes.</p> <p>Rev. St. Idaho 1887, § 2711, relating to corporations formed to supply water to cities or towns and authorized to do so by ordinance, and providing, inter alia, that such companies “must furnish water to the extent of their means in case of fire or other great necessities free of charge,” having been taken from the statutes of California, where it had been so construed by the Supreme Court of the state, requires such companies to furnish water free of charge for street-sprinkling purposes, the flushing of sewers, etc.</p> <p>2. ' Same—Duration of Franchise—Construction of Ordinance.</p> <p>A city ordinance giving a person or company the right to lay and repair water pipes in the streets and alleys of the city, but without fixing any term for the privilege, is a grant of a license only, revocable at the will of the city, since it had no power to grant a perpetual franchise in its streets in the absence of express statutory authority; and the subsequent passage of an ordinance granting the same privilege to a succeeding corporation organized under the laws of the state, but imposing upon the grantee the duty of furnishing water for city purposes free of charge, in accordance with the statutes of the state, operated as such revocation, and, whether accepted by the grantee or not, it could only exercise the privilege thereafter subject to the obligation imposed.</p> <p>8. Same—Subjection to State and Municipal Control.</p> <p>The fact that corporations formed for the purpose of furnishing water to cities or towns are denominated “private corporations” in the statutes of a state does not affect the nature of their rights and duties, nor exempt them from legislative oh municipal control.</p> <p>4. Same—Contracts bt City for Water.</p> <p>The fact that a city, from year to year, entered into contracts with a water company to supply water for city purposes, and paid for the same, or that by reason of such contracts the company expended money for additional equipment, gives it no right to a continuation of such payments after the contracts have expired.</p> <p>5, Same—Statutes Regulating—Soubce of Supply.</p> <p>A statute imposing obligations on companies furnishing water to the inhabitants of cities or towns is applicable alike to all companies which so furnish water and use the streets for the purpose, and it is immaterial whether they obtain the water from public streams or from a private source of supply.</p>

<p>1. Logs and Logging—Implied Contract—Merger in Subsequent Express Contract.</p> <p>Where defendant, operating a boom in a river, into which logs of various owners were driven, made an express contract with plaintiff to sort and saw his .logs delivered in the jam above the boom with reasonable dispatch, a previous implied contract to sort and deliver such logs with reasonable dispatch as they came down the river, by reason of defendant’s operation of the boom, was merged in the express contract.</p> <p>2. Same—Judgments—Res Judicata.</p> <p>Where the entire loss to plaintiff from the depreciation in value of certain logs resulted from a postponement of manufacture of the logs in consequence of defendant’s breach of contract, and in a former action, in which plaintiff recovered judgment, the damages were charged to the delay in sawing the logs, such judgment was a bar to a subsequent action based on the theory of a breach of an implied contract by defendant, as the owner of a boom, to sort and deliver the logs below the boom with reasonable dispatch; such delay being included in the postponed manufacture of logs.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Wisconsin. In Bankruptcy. On petition of the Langlade County Bank. The Antigo Screen Door Company, a corporation of the state of Wisconsin, had its principal office and place of business in the city of Antigo, Wis., and its sawmill in the town of Ackley, in Langlade county.

<p>In Error to the Circuit Court of the United States for the Western District of Michigan.</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 District of Massachusetts.</p> <p>On motion to recall mandate.</p>

In Admiralty. This is a libel in personam by the appellant to recover damages sustained by the steamer F. H. Prince in consequence of her collision with the railway bridge of the appellee, respondent below, which spans the South Branch of the Chicago river. This bridge is known as a “Schurzer Roller Lift Bridge,” connecting the tracks of the elevated railway of the appellee on the east and west sides of the river, and is used exclusively for the passage of elevated trains.

<p>1 Accident to Employe—Assumption op Rise—Instruction.</p> <p>Plaintiff’s intestate was employed by defendant to remove such of the sheets of iron constituting the roof of a building as were sound enough to be used on another building, the roof being convex in shape, except for a space in the center, he knowing the size of the sheets, and that if one gave way he would fall through, unless he resorted to some expedient for safety, and also knowing that some of the sheets were not in good condition, so that he could not fail to understand that snow might be an element of danger. Eel&, in an action for his death, a sheet having broken, and he having fallen through, that an instruction that, if no time was fixed as to when he should commence or finish the work, and snow was on the roof when he was employed, or fell after his employment, and he thereafter commenced the work without any direction, he assumed the risk from the presence of the snow, was proper, it not being-necessary to qualify it by the condition, if he knew the presence of the-snow was likely .to increase the risk, as it was indisputable that he didi know it.</p> <p>2. Same.</p> <p>An instruction, in an action for death of one from falling through a sheet-iron roof, the sound sheets of which he was employed to remove, that the jury had a right to find, from the location of a rope hanging down through the place where he fell, and from the marks on his hands, that he went over the snow with a rope in his hands for the purpose of protecting himself from falling through the roof; and, if they so found, it was their duty to find he realized and appreciated the danger, and defendant was not chargeable with the consequence of his failure to maintain himself by means of the rope he thus relied on—is proper, it not being to the effect that the' mere fact that an employé is aware he is entering on a dangerous undertaking implies his consent to assume the risks incident to it, but that when an employé appreciates the particular nature of the risk, and choses to encounter it with a certain appliance only, he assumes the risk of the insufficiency of the appliance.</p> <p>8. Same—Duty op Master—Furnishing Means por Work—Instructions.</p> <p>The court having instructed in regard to the general duty of an employer towards an employé, an instruction, given with reference to the defense that the employé was aware of the risk and had himself selected the instrumentalities for doing it, that it was the duty of the employer to furnish the employé with such instrumentalities as he called for, and that if he did not call for such means to the extent that would make his doing the work safe the fault was his, is proper.</p> <p>¶ 1. Assumption of risks incident to employment, see note to Deere & Co. v. Rock Island Plow Co., 28 C. C. A. 314.</p> <p>4. Same—Implied Assumption of Risk.</p> <p>Where an employé is an adult of ordinary intelligence, he impliedly assumes all the ordinary risks incident to the employment—hot only those known to him, hut also those readily discernible; but not nonobvious or latent risks, in the absence of instruction or information in respect to them.</p>

This is an action in assumpsit upon an alleged verbal agreement made December 26, 1897, between two members of a corporation, by which the plaintiff In error, the secretary of the company, undertook to place on the market $100,000 of the second mortgage bonds of the company, and the defendant agreed, in case he should so do, to assign him $110,000 of the par value of the capital stock of the company.

<p>L Surety—Defenses to Action on Bond—Estoppel.</p> <p>In an action by the United States on the bond of a contractor for public work, which also secured the claims of subcontractors and materialmen, the surety set up as special defenses a prior recovery on the bond, as a partial discharge of its obligation, and also the pendency of a suit in equity, brought by it to marshal all claims under the bond in which a decree had been entered requiring it to pay claims, the amount of which had not at that time bfeen ascertained. A demurrer to such defenses was overruled, and plaintiff filed no further pleading, taking issue thereon. The cause was tried, and a. verdict returned, fixing the amount of plaintiff’s damages at a sum which, together with the judgment previously paid, was still less than the obligation of the bond; but before judgment had been entered thereon defendant paid the amount required to satisfy the decree in the equity suit, and filed a motion asking that judgment be entered only for the amount of the penal obligation of its bond, after deducting the sums paid in satisfaction of the prior judgment and decree, which left a balance smaller than, the verdict. Jlekl, that it was not precluded from setting up such matters by the fact that it did not make proof of the same in the action, since, even if they were not admitted by plaintiff’s course of pleadings, they were at that time insufficient in law to show that defendant’s existing liability was less than the amount of the verdict, and would not, therefore, if proved, have affected the amount of the recovery.</p>

<p>1. Forgery of National Bank Notes—Signing Fictitious Names.</p> <p>The unauthorized signing of names to notes of a national bank, purporting to he those of the president and cashier, constitutes the crime of forging such notes, under Rev. St. § 5415 [U. S. Comp. St. 1901, p. 3662], whether the names so signed are in fact those of the president and cashier or of fictitious persons.</p> <p>2. Same—Effect of Statute Making Forged Notes Redeemable.</p> <p>The fact that national bank notes to which the signatures have been forged, and which have been put in circulation, are made redeemable by Act July 28, 1892, 27 Stat. 322, c. 317 [U. S. Comp. St. 1901, p. 3491], does not relieve one who forges the names of the president and cashier of a national bank to genuine but unsigned notes from the crime of forging such notes, as defined in Rev. St. § 5415 [U. S. Comp. St. 1901, p. 3662],</p> <p>8. Same—Duplication of Offense.</p> <p>Two offenses cannot be created out of the same criminal act by charging the defendant in one count with having forged a national bank note, and in another count with having forged the signatures to the same note.</p> <p>4. Same—Keeping in Possession with Intent to» Pass—Separate Offenses.</p> <p>Under Rev. St. § 5431 [U. S. Comp. Sit. 1901, p. 3671], which makes it a crime for any person to keep in possession, with intent to pass, any forged obligation of the United States, a defendant may be convicted of a separate offense for each one of such obligations he keeps in possession with intent to pass.</p> <p>¶ 1. See Forgery, vol. 23, Cent. Dig. § 26.</p>

<p>1. United States—Post Office—Mail Routes—Bonds—Enforcement.</p> <p>Where defendant executed a bond as surety for the performance of a certain mail route contract, it was no defense to an action thereon that the government had taken a proposal bond covering the same liability prior to the execution of the bond in suit, and that an action brought to enforce the same had been voluntarily dismissed.</p> <p>2. Same.</p> <p>Where the United States took a proposal bond securing performance of a mail route contract, and after letting the contract required another bond from the contractor, each obligation was an independent undertaking, and the second obligation did not stand as a guaranty for the performance of the first.</p> <p>3. Same—-Evidence—Post Office Department—Letter of Auditor.</p> <p>In an action on a bond securing performance of a mail route contract, a single letter of the auditor of the post office department that on a similar contract, in which defendant was surety for another, it would only be liable after the sureties on the proposal bond failed to pay the damage, was irrelevant.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon an appeal from a decision (G. A. 4707) of the Circuit Court, Southern District of New York, affirming a decision of the board of general appraisers, which sustained a ruling of the collector of the port of New York touching the classification for duty of certain imported merchandise.</p>

<p>1. Municipal Corporations—Bonds—Actions—Mandamos—Parties.</p> <p>Where a judgment had been recovered in an action on certain municipal bonds in favor of the holders, taxpayers were not entitled to be-made parties to a subsequent suit to enforce the judgment by mandamus, for the purpose of having the judgment opened and relitigating the-validity of the bonds.</p> <p>2. Same—Nature—Proceedings.</p> <p>A mandamus proceeding to enforce a judgment on municipal bonds-against a corporation is not a new suit against the taxpayers of the municipality, but is purely ancillary to the original action, and a substitute for the ordinary process of execution.</p> <p>¶ 1. Enforcement of judgment against municipality by mandamus, see note Holt Co. v. National Life Ins. Co., 25 C. C. A. 475.</p> <p>8. Same—Judgments—Conclusiveness—Parties.</p> <p>Holders of municipal bonds, not parties to a suit in a state court in which bonds of the same issue were declared void, were not bound by the decree.</p>

In Equity. Suit for infringement of letters patent No. 293,545, granted February 12, 1884, and No. 307,735, granted November 4, 1884, to Lewis E. Waterman, for fountain pens. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 604,690, for a fountain pen, granted to Lewis E. Waterman, May 24,1898. On final hearing.</p>

<p>In Equity. Suit for infringement of letters patent No. 481,134 for a valve for automatic air brakes, issued to George Albert Boyden, August 16, 1892. On final hearing.</p>

<p>1. Patents—Suit for Infringement—Equity Jurisdiction.</p> <p>Equity is without jurisdiction of a suit for infringement of a patent where it is shown, by allegations in pleas filed by defendant, the truth of which is admitted by complainant by setting the pleas down for argument, that on learning of the infringement, and before the commencement of the suit, defendant finally and in good faith abandoned the manufacture and sale of the infringing articles, and does not threaten or intend to further infringe.</p>

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

<p>1. Equity Jurisdiction—Adequate Remedy at Law—Cancellation of Instruments.</p> <p>A federal court of equity has jurisdiction of a suit to cancel a life insurance policy for fraud in its procurement, though instituted after the death of the insured, where there is the requisite diversity of citizenship between the parties; the fact that the fraud might be set up in defense to an action on the policy in the state court, if defendants should bring such action, not giving an adequate remedy at law to exclude the jurisdiction of equity.</p> <p>2. Same—Federal Courts—State Statute.</p> <p>The provision of Rev. St. Mo. 1899, § 7890, that whether a misrepresentation made in procuring a life insurance policy is material shall be a question for the jury, merely declares a rule of state practice, and cannot affect the jurisdiction of a federal court of equity to entertain a suit for the cancellation of a policy for fraud and misrepresentation in its procurement.</p> <p>8. Federal Courts—Following State Decision.</p> <p>A ruling of the supreme court of a state that a suit for the cancellation of a life insurance policy cannot be maintained after the death of the insured is upon a matter of general law, and is not binding on a federal court sitting within the state.</p> <p>¶ 2. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>¶ 3. See Courts, vol. 13, Cent. Dig. § 979.</p> <p>4. Cancellation of Life Insurance Policy—Right of Action—Effect of Death of Insured.</p> <p>A life insurance company from which a policy was procured by fraud is not deprived of the right to maintain a suit for its cancellation by the death of the insured, where the fraud was not discovered during his lifetime.</p> <p>5. Same—Parties—Joinder of Co-Conspirators.</p> <p>In a suit for the cancellation of a life insurance policy on the ground that it was obtained through a fraudulent conspiracy between the insured and others, brought after the death of the insured, whose estate is insolvent, complainant may join his co-conspirators with his executors or beneficiaries for the purpose of having their liability for the costs adjudicated.</p> <p>6. Federal and State Courts—Priority of Jurisdiction—Enjoining Other Suits.</p> <p>Y/here a federal court has first obtained jurisdiction of a matter in controversy by the ifistitution of a suit therein, it may by a preliminary injunction restrain defendants from bringing an action in any other court involving the same subject-matter.</p>

<p>In Bankruptcy. On application for an order for the examination of certain witnesses before a referee.</p>

<p>Appeals by the Importers from a Decision (G. A. 4386) of the Board of General Appraisers Which Affirmed the Classification by the Collector of the Importations in Question.</p>

<p>t, Shipping—Action for Demurrage—Defenses.</p> <p>Under a contract for the carriage of a number of cargoes of coke between certain ports by two vessels, which provided that the vessels should be kept a regular period apart as much as possible, where the vessels were accepted and loaded when tendered, and the freight was paid, without any protest or objection, although they were not kept a regular period apart, and no damage is shown to have resulted, the shipper cannot set up such breach of the contract in defense to an action for demurrage.</p> <p>2. Same.</p> <p>Under a provision of a contract of affreightment requiring the shipper to load the cargo as fast as the vessels can receive the same, adverse weather conditions are not a defense to an action to recover demurrage for a failure to comply with such stipulation.</p> <p>¶ 1. Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.</p>

<p>1. Admiralty—Requiring Security from Respondent in Cross-Libel—Fifty-Third Rple.</p> <p>Admiralty rule 53, providing that when a cross-libel is filed on a counterclaim the respondents in the cross-libel shall give security to respond in damages, “unless the court on cause shown shall otherwise direct,” and that proceedings on the original libel shall be stayed until such security shall be given, is broad enough to cover cases where the original libel is in personam, but such security will not be required where it would be manifestly unjust, as where it appears from the pleadings and proofs that the claim of the cross-libelant is not one upon which he can recover an affirmative judgment.</p>

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

<p>1. Bankruptcy—Time for Proving Claims—Composition with Creditors— Effect.</p> <p>Bankr. Act 1898, § 57, Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], provides that claims against a bankrupt estate shall not be proved subsequent to one year after the adjudication. Section 12a, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426] provides that the bankrupt may offer terms of composition “after but not before he has been examined in open court, or at a meeting of his creditors.” Clause “b” provides for a confirmation of the composition after it has been accepted by a majority of creditors “whose claims have been allowed.” Clause “e” provides that, if the composition shall fail, “the estate shall be administered in bankruptcy as herein provided.” Held, that the fact that a composition was effected did not extend the time given a creditor to prove his claim.</p>

<p>1. United States Circuit Court—Jurisdiction—Amount Involved—Action to Set Aside Judgments of Separate Defendants—Right to Aggregate Judgments.</p> <p>A suit by heirs to set aside, as fraudulent, a number of judgments rendered by a probate court in favor of different defendants against the estate, cannot be brought within the jurisdiction of the circuit court by adding together the amounts of the judgments, so as to produce an aggregate in excess of $2,000; no one judgment exceeding that amount, and there being no allegation making the defendants liable jointly, but the case requiring,' in the event of a determination favorable to complainants, separate decrees against each defendant.</p> <p>9. Same—Value of Real Estate.</p> <p>An action by heirs to set aside, as fraudulent, judgments rendered by a probate court against the estate, none of which exceeds $2,000, cannot be brought within the jurisdiction of the circuit court by reason of the fact that the real estate on which the judgments are liens exceeds in value that amount.</p> <p>¶ 1. Jurisdiction of circuit courts, as determined by tbe amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Greene v. Iron Co., 36 C. C. A. 459.</p>

<p>2. Bankruptcy—Fraudulent Conveyance By Bankrupt—Consideration— Sufficiency of Evidence.</p> <p>In a suit by a bankruptcy trustee to avoid as fraudulent the bankrupt’s deed, operating as a mortgage, to his father-in-law, both the grantor and the grantee answered under oath, and testified that the conveyance was to secure a bona fide indebtedness representing advances to the bankrupt from time to time. A canceled note representing the indebtedness at its date was introduced. The grantee was in receipt of a salary varying from $2,500 to $4,000, and was engaged in outside ventures. His bank account showed that during 12 years his deposits had amounted to $47,000. Held, that the conveyance was not fraudulent.</p> <p>2. Same—Preference—Bankrupt’s Intent—Creditor’s Belief.</p> <p>The highest court of New Jersey, where a bankrupt’s grantee resided, decided that one employed as an agent on a percentage of profits is not a partner. The bankruptcy court for the Southern District of New York held that such an agent was a partner, and he was included, despite his contest, in an adjudication of bankruptcy of the firm. Within four months of this adjudication he had made the conveyance in suit. Held), that the conveyance could not be avoided under Bankr. Act 1898, § 60, Act July 1, 1898, 30 Stat. 562, c. 541 [U. S. Comp. St. 1901, p. 3445], providing that if a bankrupt shall have given a preference within four months, and the creditor shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee; the grantee being assumed to know that, even if the bankrupt were a partner, his individual estate would be primarily liable for his individual debts.</p>

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

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

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

<p>1. Customs Duties—Borate of Manganese.</p> <p>Tariff Act July 24, 1897, c. 11, | 1, Schedule A, par. 11 [U. S. Comp. St. 1901, p. 1627], fixes a rate of 3 cents per pound, ad valorem, on importations of “borates of lime or soda, or other borate material not otherwise provided for, containing not more than 36 per cent, of anhydrous boric acid.” Held, that the words “borate material,” as used in such section, were not limited to material from which borates may be produced, but included, as well, borates of any other substance, and hence borate of manganese, a manufactured product containing from 4 to 20 per cent, of manganese, and from 10 to 30 per cent, anhydrous boric acid, was taxable under such section, and not under section 1, Schedule A, par. 3 [U. S. Comp. St. 1901, p. 1627], imposing a rate of 25 per cent ad valorem on all chemical compounds and salts not specially provided for.</p>

<p>At Law. On motion by plaintiff to set aside the verdict and for a new trial.</p>

<p>1. Immigration—Exclusion for Disease—Conclusiveness of Decision of Board of Special Inquiry.</p> <p>Under the immigration act of March 3, 1903, c. 1012, 32 Stat. 1214, which provides by section 10 that the decision of the board of special inquiry, based on the certificate of the examining medical officer, shall be final as to the rejection of aliens afflicted with a loathsome or with a dangerous contagious disease, as under the prior act of August 18, 1894, c. 301, 28 Stat. 390 [U. S. Comp. St. 1901, p. 1303], the only jurisdictional fact necessary to the conclusiveness of such decision is the alienage of the immigrant, and when that is shown the decision cannot be reviewed by the courts on the question of the existence or character of the disease.</p>

<p>1, Abatement and Revival—Federal Courts—State Statute of Limita- - TIONS.</p> <p>The right of a plaintiff, in an action at law for infringement of a patent, to a scire facias to revive the action against the executor of a deceased defendant, as provided for hy Rev. St. § 955 [Comp. St. 1901, p. 697], is subject to the limitation imposed by the state statute upon suits against executors, for the purpose of facilitating the settlement of estates.</p>

<p>1. Corporations—Stockholders’ Suit for Cancellation of Conveyances— Parties.</p> <p>To a suit by stockholders to have conveyances and instruments executed by the corporation canceled and set aside as fraudulent, the corporation is an indispensable party, and in its absence the court will not consider a motion for a preliminary injunction.</p> <p>¶ 1. See Corporations, vol. 12, Cent. Dig. § 810,</p>

<p>1. Courts—Injunction in State Court—Counter Injunction in Federal Court—Refusal.</p> <p>Where a party obtained from a state court an injunction forbidding the plaintiff in a patent infringement suit in a federal court to assign or release his claim, a counter injunction sought by plaintiff in the federal court will be refused, on account of the comity existing between federal and state courts, and the confusion which would result from conflicting decrees.</p> <p>2. Same.</p> <p>It seems that federal courts would not allow state courts to restrain the prosecution of suits relative to the infringements of patents, over which federal courts have exclusive jurisdiction; but no practical difficulty of that nature now arises.</p>

The Duluth Brewing & Malting Company is a corporation of the state of Minnesota engaged in the business of brewing beer, having its only brewery in the city of Duluth, in that state.

The Ohio Coal Company, plaintiff in error, a corporation existing under the laws of the State of Minnesota, was at the time of the transactions in suit, a wholesale dealer in coal, having certain docks at Ashland, Wisconsin.

<p>1. Trial—Motion to Direct Yerdtct—Question for Jury—Waiver.</p> <p>That the claimant, in an action to recover property seized for failure to declare the same for duty, moved the court to direct a verdict in her favor, did not constitute a waiver of her right to reserve exceptions to the refusal of her request to send the case to the jury after the denial of her motion to direct.</p> <p>2. Customs Duties—Nondeclared Merchandise—Forfeiture—Information.</p> <p>Rev. St § 3082 [U. S. Comp. St. 1901, p. 2014], declares that if any person shall fraudulently or knowingly import or bring into the United States any merchandise contrary to law, or shall receive, conceal, buy, or sell merchandise knowing the same to • have been imported, etc., the merchandise- shall be forfeited and the offender fined. Held, that the words “contrary to law” related to legal provisions not found in the section itself, and hence an information alleging that an importation was made contrary to law, without declaring the same for duty, but failing to allege violation of any other regulation than tliose prescribed in the statute, limited the prosecution to proof of a violation of such provisions.</p> <p>8. Same—Baggage—Merchandise.</p> <p>Where a passenger on a steamer purchased a pearl necklace before her departure from Paris, and by reason of its value wore the same about her neck when she made her declaration for duty, instead of having the same among her baggage, and the necklace was visible on her person, it was subject to declaration under the statutes and rules regulating passengers’ baggage, and not under the regulations providing for the importation of merchandise.</p> <p>4. Same—Failure to Declare—Fraudulent Intent.</p> <p>When custom house officers boarded a steamship on which claimant was a passenger, a blank for the declaration of articles liable to duty was presented to her for execution. She declined to execute it, but appeared before the officer for examination, and informed him that she had bought wearing apparel abroad, but was unable to state the amount. No further specific questions were asked her, and the collector filled up the blanks with the words, “wearing apparel, value not known,” which she signed. In the blank, under the head of “Wearing Apparel,” “jewelry” was included, and plaintiff testified that she understood that wearing apparel covered her jewelry. At the time of landing, and before examination of her baggage, she wore a pearl necklace, purchased abroad, which was visible to the officers, and which was subsequently seized before claimant’s baggage had been passed. Held, that such facts were insufficient to warrant a finding as a matter of law that claimant had done nothing to advise the government of her possession of such article before landing to justify a forfeiture thereof under Rev. St. § 3082 [U. S. Comp. St. 1901, p. 2014], authorizing forfeiture of articles fraudulently imported.</p>

<p>Appeal from the District Court of the United States for the Northern District of California, in Admiralty.</p> <p>This is an action in personam for the recovery of damages for an alleged breach of a contract evidenced by a charter party entered into between the parties to the action on September 22, 1896, at Liverpool, England. The libelants were the owners of the French bark Pierre Corneille, and chartered that vessel to the respondent, to proceed at once from Newcastle, N. S. W., where it then was, in ballast, to San Francisco, there to be loaded by the respondent with a cargo of wheat or flour, and proceed thence to a safe port in the United Kingdom or on the Continent, as might be ordered by the charterer’s agent. The freight on the cargo was agreed to be at the rate of 30 shillings per ton. The vessel arrived at San Francisco on November 11, 1896, in a somewhat damaged condition, in consequence of having been in collision with the British ship Larnaca on the night prior to her arrival. She was duly inspected by a marine surveyor, proposals for making the necessary repairs were solicited on November 19th, a bid accepted on the 23d, and the repairs commenced on the 24th, being finished on the 30th of the same month. The vessel was tendered to the charterer on December 2d, but not accepted by him, he notifying the master of the vessel of his election to cancel the charter, owing to the length of time used in repairing the vessel. The master thefi placed the vessel on the market for recharter, and, the respondent making the highest freight offer, the vessel was rechartered to him on December 18th on substantially the same terms and conditions as contained in the original charter party, but at a freight rate of 8 shillings and 9 pence per ton lower. The vessel was then loaded by the respondent, and proceeded on her outward voyage. The owners of the bark then brought the present action to recover the difference in the rate of freight under the original charter and that under the second charter, and for the loss of the vessel’s time consequent upon the respondent’s refusal to load under the first charter. Judgment was rendered in favor of the libelants for the sum of $6,082.75, from which judgment an appeal was taken to this court.</p>

<p>L Appeal—Appealable Orders—Final or Interlocutory Decree.</p> <p>A decree on an intervening petition against a receiver, directing him to deliver certain property to the petitioner, or, in default, to account for its value, and also to pay the value of its use or rental while used by him, and which refers the matter to a master to determine and report the value of the property and its rental, and to state an account between the parties, expressly stating that it is interlocutory, is not a final decree, from which an appeal lies.</p> <p>¶ 1. What decrees are final, see note to Brush Electric Co. v. Electric Imp. Co., 2 C. C. A. 379.</p>

The Chicago, Peoria & St. Louis Railway Company executed three several mortgages upon its railway, one to the Mercantile Trust Company, one to the Central Trust Company, and one to the Metropolitan Trust Company, dated, respectively, March 1, 1888, July 15, 1889, and June 1, 1891, which were immediately thereafter duly recorded, to secure certain bonds issued by that company. Three separate suits were brought in the court below to foreclose these mortgages.

<p>Appeal from the Circuit Court of the United States for the District of Idaho.</p> <p>This action was commenced in the district court of the state of Idaho, in and for Elmore county, but upon the petition of the defendants was removed' to the United States Circuit Court for the District of Idaho; the jurisdiction of that court attaching by reason of the diverse citizenship of the parties. The plaintiff (appellee herein) alleged that he was employed by the defendant corporation on August 1, 1887, as foreman of certain mines owned and operated by it in Elmore county, Idaho, at an agreed sum of $150 per month, wages; that he continuously performed work and labor in such capacity in and upon the mining premises of the defendant corporation down to the time of filing the bill, namely, nine years and eight months, for which services there was due him $17,400, of which he had been paid $9,200, leaving a balance alleged to be due and owing of $8,200. The plaintiff further alleged that he had filed his claim of lien within the time required by the statutes of Idaho; also that the defendant Frank P. Ray had or claimed to have some interest in said mining premises, but plaintiff alleged that such interest was subsequent to his own; and he prayed that his lien be foreclosed, and the property therein mentioned be sold, and the proceeds be paid to him, with judgment in his favor for any deficiency. The answer of the defendants admitted the original employment of the plaintiff by the defendant corporation at the sum of $150 per month, but alleged that in August, 1889, it closed its mine and mill, and did not thereafter employ any one at said premises but the plaintiff, who from that time on worked merely as watchman, at the agreed salary of $75 per month. It is alleged that the plaintiff has been paid in full the amount due him for all said services. The defendant Ray, answering specially, denies that he has any interest in the property in question other than as stockholder. The court found that the plaintiff was entitled to the sum of $150 per month from August, 1887, to January 1, 1890, and to $75 per month from that time to May 1, 1897, making a total amount earned by the plaintiff of $10,900, of which $9,200 had been paid, leaving a balance due of $1,700, for which judgment was given, with interest. The lien was found to be valid, and the property ordered sold in accordance with the prayer of the complaint. From this judgment the case is appealed to this court.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The bill in this cause was filed originally in the Circuit Court of Whiteside County, Illinois, and on petition of appellees was removed to the Circuit Court of the United States, for the Northern District of Illinois, upon the ground that it was a suit arising under the Constitution and laws of the United States.</p> <p>A motion to remand having been overruled, and a general and special demurrer to the bill filed, the Circuit Court ordered that the bill be dismissed for want of equity. From this order, and from the order refusing to remand the case, this appeal is prosecuted.</p> <p>The further facts are stated in the opinion of the Court.</p>

<p>Cross Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio.</p>

<p>Robinson, Biddle & Ward, for the motion.</p>

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

<p>Appeal by the importer, P. Chaufour, from a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs on merchandise imported at the port of New York.</p>

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

<p>L Contributory Negligence—Question for Jury.</p> <p>The question of the contributory negligence of the plaintiff in an action for a personal injury held, under conflicting evidence as to the facts, and his knowledge of the danger, to have been properly submitted , to the jury.</p> <p>¶ 1. See Negligence, vol. 37, Cent. Dig. § 299.</p>

<p>1. Appeal from Interlocutory Order—Dismissal—Entry oe Pinal Decree.</p> <p>An appeal from an interlocutory order granting an injunction will not be considered after a final decree has been entered in the cause, and the question of costs is the only one involved.</p> <p>2. Exchanges—Market Quotations—Bight to Impose Conditions on Persons Beceiving.</p> <p>A board of trade and telegraph companies transmitting and selling the quotations from its exchange have the right to make reasonable regulatíons for tlie conduct of the business, and a regulation requiring all customers, as a condition to being furnished with quotations, to sign an agreement that they will not use the same in conducting a bucket shop, is reasonable, and may be enforced.</p>

<p>1. Warehouseman—Loss of Goods by Fire—Liability for Insurance Money Collected.</p> <p>The owner of goods, destroyed by fire while in storage with other goods owned by the warehouseman, is not entitled to recover a portion of the insurance collected by the warehouseman on general policies covering all goods for which he was liable, without showing that he has not been indemnified for the loss by other insurance.</p>

This is an appeal from a decision of the District Court, Southern District of New York, adjudging that the appellees are not involuntary bankrupts, and dismissing the involuntary petition in bankruptcy herein. Three alleged acts of bankruptcy are set forth in the petition. As to two of them the facts averred are not made out by the proofs.

Motion by trustee in bankruptcy of the Illinois Insulated Wire Company, the appellee, to dismiss the appeal, and motion by the Equitable Trust Company, trustee of the Alden Electric Company, bankrupt, for enlargement of time in which to file transcript of record.

Appeals from the Circuit Court of the United States for the North-ern Division of the Northern District of Illinois. The first suit was begun against the proprietors of a store in which was being used a cash and package carrier that was alleged to infringe letters patent No. 465,967, December 29, 1891, to appellant, assignee of the applicant, McCarty; the second, against the builders of the apparatus. By order of court the causes were tried together.

Appellants’ bill alleges that they own all legal and equitable rights under letters patent No. 534,543, issued February 19, 1895, on the application of Emile Berlinger, and that appellee without license sold, and after notice to desist threatens to continue to sell, devices that embody the invention described and claimed in the patent.

In the suit below the appellant alleged infringement of three patents, owned' by appellant, and relating to improvements in dry press brick machines. The patents in question are No. 429,296 granted B. C. White and James A. Boyd, June 3, 1890; No. 455,374 issued July. 7, 1891 to B. C. White; and; No. 488,622 issued December 27, 1892 granted to B. C. White.

The suit in the Circuit Court was to restrain infringement of letters patent, No. 492,927, issued to Robert B. McEwan and others, for a new and useful improvement in paper board. The bill was dismissed for want of equity, and from this order this appeal is prosecuted. The material portion of the patent, together with the claim is as follows: “Our invention relates to the manufacture of paper-board, box-board and the like from newspapers or other similar printed white paper.

<p>1. Patents—Invention—Metal Wheels.</p> <p>The Bettendorf patent, No. 550,815, for a method of securing metal spokes to metal hubs, is void for lack of patentable invention, in view of the prior art, and especially the Gendron patent, No. 419,009, for a process for fastening eastings to whiffietrees, axles, and other similar bodies, which was identical with that of the Bettendorf patent, and its application to the fastening of spokes in hubs an obvious extension of the same principle.</p> <p>2. Same—Priority op Invention—Sufficiency of Evidence.</p> <p>The testimony of a witness that, according to his recollection, a serious fire occurred in his plant on a certain date, 12 years back, and that he made the invention covered by the patent in suit “about a month” before the fire, is not sufficient to carry the date of invention back of an application for an anticipating patent, which was filed 25 days before the time fixed for the fire.</p>

<p>1. Patents—Suit for Infringement—Preliminary Injunction.</p> <p>Prior adjudications sustaining a patent, but which were entered by consent as the result of settlements between the parties, and in which the questions of the validity and scope of the patent were not considered by the court, are not sufficient as the basis for the granting of a preliminary injunction in a subsequent suit against another alleged infringer.</p> <p>2. Same—Enameled Ware.</p> <p>The construction and scope of the Claus patent, No. 527,361, for enameled metal ware, held subject to so much uncertainty, in view of the limitations imposed by the file wrapper, that they could not be properly determined on a motion for a preliminary injunction, and such motion therefore denied, on condition that defendant give a bond to account for subsequent infringements.</p> <p>¶ 1. See Patents, vol. 38, Cent Dig. §§ 482, 484.</p>

<p>In Equity. In the matter of the intervening petition of the Central Trust Company of New York.</p> <p>In 1889 the Terre Haute & Indianapolis Railroad Company, hereinafter called the Terre Haute Company, owned and operated its own line of railroad between Indianapolis, Ind., and the state line west of Terre Haute. It also was in possession of and operating the line of the St. Louis, Vandalia & Terre Haute Railroad Company extending from the western state line of Indiana to St. Louis. This Vandalia road was held under a so-called lease, which was afterwards adjudicated to be invalid and ultra vires by the Supreme Court of the United States. 145 U. S. 393, 12 Sup. Ct. 962, 36 L. Ed. 741. The Terre Haute & Indianapolis Railroad Company was also at that time in possession of and operating, under a somewhat similar lease, a line from Terre Haute to South Bend, Ind. This lease has since been held ultra vires. 88 Fed. 913, 32 O. C. A. 130.</p> <p>In the same year the Indiana & Lake Michigan Railroad Company, a consolidated corporation of Indiana and Michigan, was organized to construct and operate a railroad connecting with the Logansport line of the Terre Haute Company at South Bend, and extending to St. Joseph, Mich., a lake port. The Indiana & Lake Michigan Railway Company, hereinafter called the Lake Michigan Company, being merely a paper corporation, the Terre Haute Company entered into a contract with it called a “lease,” which is Exhibit B of the intervening petition. At the same time the Terre Haute Company, as a part of the same transaction, acquired all of the stock of the Lake Michigan Company, and the officers and directors of the Lake Michigan Company were all officers and directors of the Terre Haute Company.</p> <p>The so-called Lake Michigan lease, dated June 4, 1889, provided that the Lake Michigan Company should make a mortgage to secure $480,000 of 5 per cent, bonds, and apply the proceeds of said bonds to the construction of its proposed line of railroad. When completed the road was to be turned over to the Terre Haute & Indianapolis Company for a period of 99 years, during which time the Terre Haute Company was to operate the road, retaining 75 per cent, of the gross receipts for its own use, and appropriating the remaining 25 per cent, of the gross receipts of said Lake Michigan road to the payment of taxes on the Lake Michigan property and of the interest coupons on said $480,000 bond issue. In case the 25 per cent, was insufficient to pay the interest, the deficiency was to be advanced by the Terre Haute Company by way of loan to the Lake Michigan Company. The 'Terre Haute Company also agreed to guaranty the payment, principal and interest, of said Lake Michigan bonds.</p> <p>Pursuant to this agreement of June 4, 1889, a mortgage was executed by-said Lake Michigan Company to the Central Trust Company of New York, trustee, and to a co-trustee, who has since died, to secure $480,000 of bonds. A copy of the mortgage is attached to the petition as Exhibit A. The mortgage covered all of the property, real and personal, then owned or thereafter acquired by the Lake Michigan Company. On each of said bonds the following guaranty was executed by the Terre Haute Company:</p> <p>“The Terre Haute and Indianapolis Railroad Company, a corporation created under the laws of the state of Indiana, in consideration of a ninety-nine years lease of the railroad mentioned in the within bond, does hereby guaranty the payments of the principal and interest of said bond according to the terms and conditions thereof.”</p> <p>The entire bond issue was then sold, and the Lake Michigan road built with the proceeds. The road, having been constructed, was accepted by the Terre Haute Company pursuant to the provisions of said contract of June 4, 1889. The Terre Haute Company took possession in 1890, and thereafter retained possession and operated said road continuously until the appointment of a receiver in this cause, November 13, 1896. During that time the Terre Haute Company complied with the terms of its contract, paid the taxes and maturing interest on said Lake Michigan bonds, up to and including the coupon which fell due March 1, 1896, which represented the interest for the preceding six months. On September 1, 1896, the Lake Michigan coupon maturing on that day was defaulted. From March 1, 1896, until November 13, 1896, the Terre Haute Company had possession of and collected the earnings of said Lake Michigan Railroad, but did not appropriate 25 per cent, of the gross earnings for said period, nor any part thereof, to pay interest on said Lake Michigan bonds, and has never done so, and has paid nothing for the use of said Lake Michigan road during said period.</p> <p>The gross income from March 1, 1896, to November 13, 1896, of the Lake Michigan road received by the Terre Haute Company was $48,596.72. Twenty-five per cent, of said gross income amounted to $12,149.18. The interest accruing on the Lake Michigan bonds during this same period amounted to $16,866.67. The total operating expenses paid by the Terre Haute Company on account of said Lake. Michigan road during the same period were $52,875.62, exceeding the gross income by $4,278.90. In October, 1896, the original bill was filed in this case by Mark T. Cox et al., in behalf of the bondholders of the Terre Haute & Peoria Railroad. The Terre Haute & Indianapolis Railroad Company had, since the execution of the Lake Michigan contract of June 4, 1889, entered into possession of another line of road from Terre Haute to Peoria, under a somewhat similar lease. In 1S93 the Peoria lease had been validated by an act of the Indiana Legislature. The Peoria lease was exhibited with the bill marked “Exhibit B.” The bill recited that under this Peoria lease 30 per cent, of the earnings of the Peoria road were to be received by the Terre Haute Company as a trust fund for the payment of taxes and bonded interest of said Peoria road, the Terre Haute Company retaining the other 70 per cent, for its own use. The bill recited the history of the Terre Haute Company and its possession of the various lines above mentioned, under leases. It stated that a default had; taken place on the part of the Terre Haute Company under this lease, and that for more than a year the Terre Haute Company had received and retained the 30 per cent, belonging to the Peoria road, and had mixed the same with its own funds. The bill further stated that the Terre Haute Company was in an embarrassed condition, and asked that the Terre Haute Company be enjoined from further misappropriating the lease percentage of the Peoria earnings, and that it be required to specifically perform the contract, and that if necessary a receiver be appointed of the funds received by the Terre Haute Company from the operation of the various leased lines operated by it, or that if the Terre Haute Company be insolvent a receiver be appointed to operate its railroad and leased lines “and to preserve said lease.”</p> <p>At the time of filing the bill an order was entered requiring the Terre Haute Company to show cause why it should not be required to pay over the 30 per cent, of the Peoria income to the bondholders of the Peoria road. On November 13, 1896, this order to show cause was returnable. The Terre Haute Company thereupon brought in an answer to the bill admitting its insolvency, and asking for a receiver of its own road and its leased lines.</p> <p>On that day the complainant amended its bill by inserting the following:</p> <p>“And now come the complainants, and move to amend their bill of complaint filed herein by adding at the end of paragraph 12, on page 28, the following paragraph, viz.:</p> <p>“ ‘And your orators further aver that at the time of preparing the bill herein it was apprehended that the defendant might become insolvent, but now, in point of fact, your oratórs are informed and believe, and therefore aver, that insolvency has in fact occurred, and that said defendant is wholly unable to pay its current debts and obligations; that some of its funds have been attached by certain of its creditors, and other suits or attachments are threatened, and that unless a receiver be appointed to take possession of its-property and operate the same its assets will be liable to be seized or levied upon at the suit of divers creditors, its assets wasted and sacrificed, its current operations embarrassed or arrested, its system disintegrated, and great 'and irreparable loss ensue to its creditors and the public by reason of its consequent inability to discharge its duties as a common carrier, and the funds specifically appropriated for the payment of interest on your orator’s-bonds diverted and lost; and a receiver is therefore necessary to take possession and custody of all the railroads of the defendant owned, leased, and operated by it, and all other property belonging to the defendant, and to-maintain and operate its said railroads under the order of the court for the benefit of the various parties in interest.’ ”</p> <p>At the same time the prayer to the bill was amended so that as amended the prayer of the bill read as follows:</p> <p>“To the end, therefore, that your orators may have that relief which they can only obtain in a court of equity, they pray that an account may be taken, by and under the direction and decree of this honorable court, for the purpose of ascertaining what the gross earnings of said Terre Haute & Peoria Railroad property have been since the 31st day of October, 1895, and what sum defendant has received and misappropriated that should have been applied by defendant to the payment of interest on said Terre Haute & Peoria Railroad bonds due and payable at the office of the Union Trust Company-of New York, in New York City, on the 1st day of September, 1896, and that a decree be entered against defendant for the principal sum of said interest, together with interest thereon from and after said 1st day of September, 1896, and defendant be required to pay the same, and be also required to-specifically perform said contract of October 1, 1892, and be enjoined during the pendency of this action from using or appropriating any of the thirty per cent, of the gross earnings of said Terre Haute & Peoria Railroad’s property, except in the manner and at the times specified in said contract of' October 1, 1892, and also that upon the finál hearing of this action said defendant be perpetually enjoined from using or appropriating said thirty percent. of gross earnings, except as in said contract specified; and that a receiver be appointed for said Terre Haute & Indianapolis Railroad Company to operate its railroad and its leased lines, and to preserve said leases in. so far as may be possible in the interests of all the creditors of the said Terre Haute & Indianapolis Railroad Company, according to their respective and lawful priorities, and without undue preference of one creditor or set of creditors over the other; and that your orators may have all such other and further relief in the premises as to the circumstances of this ease may require and to your honors seem meet; and may it please your honors to grant unto your orators a writ of subpoena, to be directed to the said the Terre Haute & Indianapolis Railroad Company, commanding it, at a certain time and under certain penalty to be therein limited, to appear before this honorable court, and then and there full, true, direct, and perfect answer make under oath to all and singular the premises, and further to perform and abide such further order, direction, and decree herein as to this honorable court shall seem agreeable to equity and good conscience.”</p> <p>The Terre Haute Company at once filed its answer, substantially admitting the allegations of the bill, and concluding with the following paragraph and prayer:</p> <p>“And, further answering the amended bill of complaint, defendant admits the truth of the averments in the twelfth paragraph of the bill of complaint as amended, that the insolvency of the defendant company has in fact occurred, and that the defendant company is wholly unable to pay its current debts and obligations; and defendant avers the truth to be that owing to the well-known financial embarrassments of the defendant, by reason of such insolvency, some of the funds of defendants have already been attached by certain of its creditors, and suits and attachments by other creditors are threatened, and that, unless a receiver be appointed to take possession of its property and operate the same, defendant’s assets will be liable to be seized and levied upon at the suit of divers creditors, its assets lost, wasted, and sacrificed, its current operations embarrassed or arrested, and its system disintegrated, and great and irreparable loss ensue to its creditors and to the public by reason of its constant inability to discharge its duties as a common carrier, and the funds for the payment of interest on its various obligations diverted and lost; and defendant believes a receiver is necessary to take possession and custody of the defendant’s railroad, and the roads leased and operated by it, and all other property belonging to the defendant, and to maintain and operate the same under the order of the court for the benefit of the various parties in interest.</p> <p>“Wherefore the defendant joins in the prayer of the complainants for a receiver and for all other proper relief.”</p> <p>On the same day, November 13, 1896, Judge Woods appointed a receiver in this court, and in a similar proceeding made a similar appointment in Illinois for the Illinois property. No bill was filed in the state of Michigan, and no receiver was appointed in that state, although 25.05 miles of the Lake Michigan road are in the state of Michigan.</p> <p>The order appointing the receiver directed him to take possession of and operate all of the railroads and property of the Terre Haute & Indianapolis Railroad Company, “including such railroads and property as the said Terre Haute & Indianapolis Railroad Company holds, controls, or operates, under lease or otherwise, in his discretion, and in such manner as will in his judgment produce 'the most satisfactory results.” It was further provided “that said receiver is hereby authorized in his discretion, from time to time, out of the funds coming into his hands, to pay the expenses of operating said property.” The receiver was also ordered to pay the unpaid loss and damage and supply claims, traffic ear mileage, balances, current and unpaid pay rolls, and vouchers accruing during the six months prior to the appointment of a receiver. The order of appointment further provided that:</p> <p>“And it is further ordered, adjudged, and decreed that the said receiver keep true and accurate books of account showing the receipts derived from the operation of the said railroads, and the manner and purpose of the expenditures thereof, and that in said books of account he keep separate and distinct accounts showing the amount of the gross earnings derived from the operation of the Terre Haute & Peoria Railroad Company, and in like manner separate accounts showing the amount of the gross earnings derived from the operation of each of the other railroad's leased by the said defendant company, and separate accounts showing the gross earnings derived from the operation of the railroad of the defendant company itself; that thirty per cent, of the gross earnings derived from the operation of the said' Terre Haute & Peoria Railroad Company, and twenty-five per cent, of the gross earnings derived from the operation of Terre Haute & Logansport Railroad Company, and of the Indiana & Lake Michigan Railway Company, respectively, and thirty per cent, of the gross earnings derived from the operation of the St. Louis, Vandalia & Terre Haute Railroad Company, be respectively set apart and held by the said receiver as a separate and distinct fund in each case, be deposited by him in separate bank accounts, specially designated so as to indicate the property from which such deposits are derived in each case, and that no part of such percentages so set apart and deposited be paid out or applied except on the special order of this court, made upon notice to the complainants herein or their solicitors and such other parties as may hereafter appear in this cause.</p> <p>“And said receiver shall make monthly reports to this court showing the receipts aforesaid, and the cost of operation of each of the said leased lines of the main line of railroad, and also showing the method by which the incomes and expenses of said lines are respectively ascertained, and, in case the balance of the gross earnings derived from the operation of any of the said leased lines shall be insufficient to meet the expenses of the same, then the said receiver shall advance and meet any such deficiency out of the gross earnings of the main line of railroad of the defendant company if the same Shall be sufficient therefor, and if not sufficient he shall report the matter to this court, and apply for instructions in the premises, having first given notice to all parties to this suit of the time and place of such application.”</p> <p>In compliance with this order the Terre Haute Company surrendered possession of all of its property and leased lines, including that part of the Lake Michigan road in the state of Michigan as well as the part in Indiana. The receiver retained possession of and operated the Lake Michigan road as a part of the Terre Haute system continuously until February 28, 1899. During the receiver’s operation he did not offer to surrender possession thereof, nor did the Terre Haute Company offer to procure or make such surrender, nor did said Terre Haute Company make any motion in this cause asking that the court direct such surrender. In January, 1898, a petition of Cox et al. was pending in this cause asking for an order of court directing the receiver to pay the interest on the Peoria mortgage which had accrued prior to the receivership. Answering this petition, of Cox et al., the Terre Haute Company embodied in its answer the following:</p> <p>“This defendant is advised that the order made herein appointing a receiver, and directing special funds to be kept by him, does not and was not intended to bind the receiver to pay the rentals stipulated in the leases of the Terre Haute & Peoria Railroad Company, the Indiana & Lake Michigan Railway Company, or the Terre Haute & Logansport Railroad Company to this defendant, or to affect in any manner the rights of this defendant or any of its creditors in said funds, or against the ■ claims of the plaintiff or any of said lessors, as they might thereafter be determined. This defendant is informed that the plaintiffs give out that the effect of said order is to require the receiver to pay the rentals stipulated in said lease of the Terre Haute & Peoria Railroad Company to this defendant. This defendant, therefore, asks the direction of the court, and prays that, if such be the effect of the order, that it be modified so as to relieve the receiver from any obligation beyond his net earnings from said Terre Haute & Peoria Railroad, said Indiana & Lake Michigan Railway, and said Terre Haute & Logansport Railroad, or otherwise, in the interest of the general and unsecured creditors of this defendant, that the receiver be directed, to surrender possession of each of said railroads.”</p> <p>No action was taken by the court upon the above suggestion. •</p> <p>Neither the Lake Michigan Company nor the Central Trust Company of New York, its mortgagee, were parties to this suit during the receiver’s operation of said Lake Michigan Railroad.</p> <p>On November 27, 1896, petitioner commenced an independent proceeding in this court for the foreclosure of said Lake Michigan mortgage, seeking also by its bill to recover on said guaranty of said bonds made by said Terre-Haute Company. A similar proceeding was at the same time commenced in the United States Circuit Court for the Western District of Michigan,. Southern Division. These bills contained a general prayer for a receiver, but no application for appointment of a receiver was ever made and no receiver was appointed in these proceedings.</p> <p>It was alleged in said bills filed by petitioner that the receiver had been-appointed in this suit, and that he had possession and control of said Indiana & Lake Michigan Railway, and was operating the same as such receiver;, that said Indiana & Lake Michigan Railway Company was insolvent and wholly unable to pay its debts, and that its property was less in value than-the amount of its mortgage bonds, and that the mortgage security was inadequate; that the payment of its bonds was guarantied by the Terre Haute Company.</p> <p>On February 1, 1897, the Terre Haute Company filed its demurrer to. so-much of said bill of complaint as sought to charge it with any liability on account of its guaranty of said Indiana & Lake Michigan bonds, on the ground’ that said guaranty was ultra vires and void. On July 22, 1897, this demurrer was overruled. In the meantime, on April 26, 1897, the original bill was amended by adding thereto, as Exhibit B, a copy of the contract between the Indiana & Lake Michigan and the Terre Haute & Indianapolis companies-for the operation by the latter of the Indiana & Lake Michigan Railway. The execution of'this contract and some of its terms had been alleged in the-original bill, and it is the same contract a copy of which is attached to the amended intervening petition herein as Exhibit B. On August 25, 1897, theTerre Haute & Indianapolis Railroad Company filed its answer to said amended bill, and denied any and all liability upon its guaranty of the Indiana & Lake Michigan bonds, and by reason of said contract, upon the ground that both said guaranty and said contract were ultra vires, and therefore void. On September 16, 1877, a general replication was filed to this answer. On. November 22, 1897, a supplemental bill was filed, showing continued default for six months in the payment of interest on said Indiana & Lake Michigan mortgage bonds, and that by reason thereof, pursuant to the terms of the mortgage, the principal of the bonds had become due and payable. On December 6, 1897, the Terre Haute & Indianapolis Railroad Company filed its answer to this supplemental bill, and renewed its defense of ultra vires. On the same day a general replication was filed to this answer. On June 16, 1898, a final decree was entered foreclosing said mortgage, and ordering the sale of the Indiana & Lake Michigan Railway property. In this final decree it was ordered, adjudged, and decreed that the guaranty made by the Terre Haute & Indianapolis Railroad Company, as set forth in the bill of complaint, of the Indiana & Lake Michigan bonds, was invalid, and that there was nothing due or owing from the Terre Haute & Indianapolis Railroad Company by reason of such guaranty. Leave was given the purchasers-of the property at foreclosure sale to apply to the receiver for a surrender of the mortgaged premises and the additions thereto, and the decree directed that such surrender should accordingly be made.</p> <p>A similar decree of foreclosure was entered a few days later in the United States Circuit Court for the Western District of Michigan, Southern Division, but so much of the bill as sought to recover against the Terre Haute & Indianapolis Railroad Company on the guaranty was dismissed, that question having already been adjudicated in this court. In and by said decrees of foreclosure it was found, adjudged, and decreed that the Indiana & Lake Michigan Railway Company was indebted to the Central Trust Company of New York, trustee, on account of said mortgage bonds, in the sum of $538,000, with interest thereon from June 15, 1898, at the rate of 5 per cent, per annum. It was further ordered in said decrees that the proceeds of sale of said mortgaged property should be applied, first, to the payment of interest and compensation of the master, the complainant, and counsel; second, to the payment of said amount found to be due, without preference of interest over-principal or principal over interest. It was further provided 'that the complainant should be entitled to a judgment and execution for the deficiency,, if any, left unpaid after application of the proceeds of sale.</p> <p>Thereafter, on December 8, 1898, a sale of said mortgaged property was had, and the same day sold for the sum of $100,000, leaving a deficiency of ■over $450,000.</p> <p>On the 13th day of January, 1899, said sale was confirmed. On the same ■day the following entry was made in this case:</p> <p>“Comes now the receiver, Yolney T. Malott, by John G. Williams, his solicitor, comes also the Central Trust Company of New York, by Augustus L. Mason, its solicitor, and it appearing to the court that the mortgage of four hundred and eighty thousand dollars executed by the Indiana & Lake Michigan Railway Company to the Central Trust Company of New York, on or about September 2, 1889, has been,foreclosed by decree of this court in the case of Central Trust Company of New York v. The Indiana & Lake Michigan Railway Company et al., No. 9,413, and by the decree of the United States Circuit Court for the Western District of Michigan, Southern Division, in the ■case of Central Trust Company of New York v. The Indiana & Lake Michigan Railway Company et al., No. 1,240, and it further appearing to the court that on December 8, 1898, a sale of the said Indiana & Lake Michigan Railway under said decree of foreclosure was made by William P. Kappes, special master in chancery, in said causes, which sale has been reported to each of said courts:</p> <p>“Now, therefore, it is hereby ordered that upon the confirmation of said sale to the purchasers, Morgan G. Bulkeley and Moses L. Scudder, or their assigns, and the delivery of a deed for said property by the special master, the receiver shall, upon request of said purchasers, surrender to them or their assigns the possession, of said Indiana & Lake Michigan Railway, and all property, rights, and franchises thereunto appertaining, as fully described and set forth in said decrees of foreclosure above referred to.</p> <p>“It is hereby expressly provided that neither this order, nor the surrender of possession by said receiver to said purchasers or their assigns, shall be construed to affect in any manner the fund now in the hands of the receiver, known as the Lake Michigan fund, and consisting of twenty-five per cent, of the gross earnings of said Indiana & Lake Michigan Railway while in the receiver’s hands, but the court expressly reserves to itself the right to make further orders concerning said fund, and the said Central Trust Company of New York is now granted leave to file an intervening petition in this cause touching the disposition of said Lake Michigan fund now in the receiver’s hands.”</p> <p>Pursuant to the above leave granted, this intervening petition was filed January 31, 1899, and amended and refiled June 29, 1900.</p> <p>The receiver was not a party to said foreclosure proceedings. On February 28, 1899, pursuant to the above order, the receiver surrendered possession of the said Lake Michigan Railway to the St. Joseph, South Bend & Southern Railroad Company, a corporation organized by the bondholders of the said Lake Michigan road, who had become the purchasers of the same at foreclosure sale through the bondholders’ committee.</p> <p>An appeal was taken by the petitioner from so much of said decree in said foreclosure proceedings as exonerated the Terre. Haute & Indianapolis Railroad Company from all liability by reason of its said guaranty. Said decree was in all things affirmed by the United States Circuit Court of Appeals on January 2, 1900. 98 Fed. 666, 39 C. C. A. 220. Thereafter an application for writ of certiorari to the Supreme Court of the United States for a review of said decision was made and refused.</p> <p>In operating the Indiana & Lake Michigan Railway Company’s property the receiver herein kept separate accounts of its income and of the operating expenses thereof, and deposited 25 per cent, of its gross earnings, known and designated as the “Lake Michigan Fund,” all as required by the order appointing him receiver herein. During the whole period he so operated said property he received as the gross earnings thereof the sum of $153,753.43, and he expended in operating said property the sum of $160,101.10. The 25 per cent, of the gross earnings of the property deposited by him as aforesaid to the credit of the Lake Michigan fund amounted in the aggregate to $38,438.37, and under the orders of this court he paid out of said Lake Michigan fund for taxes on said property the sum of $4,424.56, and the balance now remaining to the credit of said fund is $34,013.81. During all the time he was operating said property the receiver herein made monthly reports to this court of its income and operating expenses, and of the deposits made by' him to the credit of the Lake Michigan fund, and a tabulated statement of said reports is attached to the stipulation in this case, marked “Exhibit A.”</p> <p>The balance of the gross earnings derived from the operation by the receiver of the property of the Indiana & Lake Michigan Railway Company, after setting apart 25 per cent, thereof as a separate fund, was insufficient to meet the expenses of operating the property, and the receiver advanced and met such deficiency out of the gross earnings of the main line of railroad of said the Terre Haute & Indianapolis Railroad Company. The aggregate of all the amounts so advanced by him was $44,786.04, and neither this last-named sum nor any part thereof has been refunded in any way, but still remains wholly unpaid.</p> <p>The profit and loss account of the receiver during the period of his possession of the Lake Michigan Railway, as appearing in his February, 1899, report, is as follows:</p> <p>November 14, 1896, to February 28, 1899.</p> <p>To 2/7 loss operating St L„ V. & T. H. R. R., 27 mo. 17 da.. $ 55,151 71</p> <p>To- “ “ “ I. & L. M. Ry., 27mo. 17da.. 42,653 97</p> <p>To “ “ “ T. H. & P. R. R., 27 mo. 17 da.. 178,064 43</p> <p>To balance, general account................................ 386,410 75</p> <p>$662,280 86</p> <p>By profit operating T. H. & I. R. R., 27 mo. 17 da............$645,930 86</p> <p>By 1/5 profit from Indpls. Union Ry........................ 16,350 00</p> <p>$662,280 86</p> <p>The property of the Terre Haute Company has been operated by the receiver at a large profit, and he now has in his hands as assets of that company a large sum, more than sufficient to pay the claim of the petitioner for the use of the Indiana & Lake Michigan Railroad by the Terre Haute Company from March 1, 1896, until November 13, 1896. The profit and loss account of the receiver from November 14, 1896, to September 30, 1902, as shown by his September, 1902, report, is as follows:</p> <p>November 14, 1896, to September 30, 1902.</p> <p>To 2/7 loss operating St. L., Y. & T. H. R. R., 70 mo. 17 da.. $ 11,726 79</p> <p>To “ “ “ I. &L. M. Ry., 27 mo. 17 da.. 44,786 04</p> <p>To “ “ “ T. H. & P. R. R., 70 mo. 17 da.. 538,947 93</p> <p>To balance per general account.......................... 2,049,554 99</p> <p>$2,635,015 75</p> <p>By profit operating T. H. & I. R. R., 70 mo. 17 da.......... $2,395,705 75</p> <p>By 1/5 profit Indpls. Union Ry........................... 56,750 00</p> <p>By dividends Nos. 11 to 18, inclusive, on St. L., Y. & T. H.</p> <p>R. R. Co. preferred stock..........,..................... 182,560 00</p> <p>$2,635,015 75</p> <p>No compensation has ever been made to said Indiana & Lake Michigan Railroad Company or its bondholders for the use of its road by said Terre-Haute Company from March 1, 1896, until November 13, 1896, nor for its use by the receiver from November 13, 1896, until February 28, 1899.</p> <p>In respect to the percentage of gross earnings reserved by the receiver under his order of appointment from each of the leased lines except the Lake Michigan line, the following proceedings were had:</p> <p>The Peoria bondholders obtained an order directing the receiver out of the funds in his hands to pay the interest coupons on the Peoria road which fell due September 1,1896. That portion of the Peoria fund not necessary for the above purpose, except disbursements for current taxes, is still in the receiver’s hands.</p> <p>From the foregoing order in behalf of the Peoria bondholders an appeal was taken to the United States Circuit Court of Appeals, and the decision was affirmed. Terre Haute, etc., R. Co. v. Cox, 42 C. C. A. 654, 102 Fed. 825. In this decision the Peoria lease was held to have been validated by an act of the Indiana Legislature passed in 1893. Out of the Vandalia lease percentage fund the receiver from time to time paid the taxes on the Vandalia road, and the interest on the mortgage bonds outstanding on said Vandalia road. The balance remaining after said payments being very considerable, it has been, under order of court, paid over to said St. Louis, Vandalia & Terre Haute Railroad Company, notwithstanding the fact that the Vandalia lease, like the one at bar, was ultra vires and void.</p> <p>Out of the Logansport fund was paid the taxes and the interest maturing on the first mortgage of the Terre Haute & Logansport Railroad. The interest maturing on the second mortgage of said company was left unpaid.</p> <p>The trustee of the second mortgage of the Terre Haute & Logansport Railroad Company began an independent suit in this court on the 30th day of‘ December, 1896, for the foreclosure of said Logansport second mortgage. In this proceeding a cross-bill was filed by the Terre Haute & Indianapolis Railroad Company, setting up that its total expenditures in operating the Logansport road and in procuring betterments and equipments largely exceeded its receipts from said road. This excess was claimed as a lien prior to the second mortgage. The cross-bill was dismissed for want of equity, and on appeal to the Circuit Court of Appeals the so-called leases of the Logansport road were held to be ultra vires and the decree of the court below affirmed. 88 Fed. 913, 32 C. C. A. 130.</p> <p>The Logansport road thereupon was sold under said foreclosure decree on said second mortgage. The court reserved from the operation of the decree the Logansport fund for future consideration by the court. On December 5, 1898, Harrison, trustee, in the Logansport second mortgage, filed his petition for application of the Logansport fund in the hands of the receiver, amounting approximately to $137,000, upon the deficiency remaining on his foreclosure decree obtained in the Logansport second mortgage. The purchaser of the Logansport road at foreclosure sale, having become a party to the proceedings, resisted such application of the Logansport fund on the ground that a portion of said fund should be used to exonerate the property from existing tax liens and from current interest on the first mortgage. The court ordered the Logansport fund paid to Harrison, trustee, for application on his deficiency in the foreclosure case. On appeal to the United States Circuit Court of Appeals this order was affirmed. 96 Fed. 907, 37 C. C. A. 615.</p> <p>There was paid, however, to Harrison, trustee, only the balance of the Logansport fund remaining after all of the receiver’s expenses in operating the road had been fully paid and satisfied. He accounted for all of the earnings of the property, including the Logansport fund, and charged against the entire earnings all the operating expenses of the property. He made no profit in operating the property. In settling the receiver’s accounts for the operation of the Logansport road, it was necessary to apply a part of the Logansport fund to repay advances made by the receiver from the Terre Haute & Indianapolis fund, and on the petition of the receiver this court, under date of July 19, 1900, ordered that the receiver use the sum of $13,769.35, standing to the credit of the Logansport fund on May 31, 1900, in the payment and satisfaction of a like amount advanced by him out of the earnings of the Terre Haute & Indianapolis Railroad, to pay claims growing out of the receivership of the Terre Haute & Logansport property presented and allowed between the surrender, December 1, 1898, of the last-named property to the purchaser thereof, and May 31, 1900.</p> <p>No payments have been made out of the Lake Michigan fund except for current taxes.</p> <p>Counsel for petitioner states to the court that the interests of the petitioner and of the St. Joseph, South Bend & Southern Railroad Company, purchaser of the Lake Michigan road in said foreclosure decree, are identical, and that he is authorized by said St. Joseph, South Bend & Southern Railroad Company to consent to the granting of the prayer of this petition, and to waive its rights, if any, as purchaser, in favor of said Central Trust Company, trustee.</p> <p>During the receiver’s possession of the Lake Michigan road, monthly statements of the gross earnings, the operating expenses, and the amount of the Lake Michigan fund were furnished each month to M. L. Scudder, chairman •of the bondholders’ committee of the Lake Michigan road.</p> <p>During the entire period from March 1, 1896, to February 28, 1899, the Lake Michigan road was operated as part of the system of the Terre Haute •& Indianapolis Railroad Company in immediate connection with the Logansport division, operated by said company, continuous trains being run between Terre Haute, Ind., and St. Joseph, Mich. During this period the Lake Michigan road had no rolling stock of its own. The Lake Michigan road begins on the dock at St. Joseph, Mich., on the St. Joseph river. It has some 1,800 feet of dock frontage, and had a large warehouse at that point, some 200 feet in length. It had a connecting track through one of the streets of the -town of St. Joseph with what was at that time the Chicago & West Michigan Railroad. It had side tracks into several industries in St. Joseph, and had a single-track 60-pound steel rail from St. Joseph to South Bend, with side tracks at various points where there are stations. At South Bend it had a track reaching several industries, particularly the Studebaker Manufacturing Company, which was a large shipper of freight, and also a connection with a track into the Oliver Manufacturing Company, which was also a large ■shipper of freight. At South Bend it connected with the Terre Haute & Logansport Railroad, making the whole distance about 40 miles, with about ■6 miles of side tracks. The road was in fair condition when turned over to the receiver and fairly maintained by him. Outside of the 50-feet right of way, the Indiana & Lake Michigan Railway Company owned no property in South Bend, no depots, no freighthouses, nor passenger stations. There were tracks other than the main track on the 50-foot right of way in South Bend, which were used as yards. St. Joseph, Mich., had harbor facilities. The Lake Michigan road connected at South Bend with the Terre Haute & Logansport, and crossed the Indiana, Illinois & Iowa, the Grand Trunk, and the Lake Shore railroads. At Galion it had a connection with the Michigan •Central, and at St. Joseph with the Chicago & West Michigan. At St. Joseph it connected with the lake, as above described.</p> <p>George L. Bradbury, witness for the petitioner, testified that he had been ■engaged in the railroad business for 33 years in the states of Indiana, Illinois, and Ohio, in different positions—as agent, conductor, general agent, general freight agent, general manager, vice president, and president. During the past 13 years he had been general manager of the Lake Brie & Western Railroad, with a division extending from Indianapolis to Michigan City. He was pretty familiar with the railroad business of Indiana, Illinois, and Ohio, and, in a general way, with the immediate-locality of the Lake Michigan Railroad. Being asked what, in his judgment, would be a fair rent-for the Lake Michigan Railroad during the period it was operated by the receiver, taking into consideration or assuming that the tenant was the receiver of the Terre Haute & Indianapolis Railroad Company, and that during the receiver’s tenancy he made only ordinary repairs, keeping the property reasonably safe for the operation of trains, and that the Lake Michigan road had no rolling stock of its own, he says, over the objection of respondent:</p> <p>“In answering that question I should not take into consideration anything about the maintenance of the property, as I had no knowledge of its physical condition prior to the time that is alluded to nor during the time; simply taking the property in consideration as I know it now, I should fix a fair •rental of the property at a minimum of $22,000 and a maximum of $25,000 ■—something between those two amounts—per annum, and taxes and maintenance.”</p> <p>The stipulation between counsel contains the following statement:</p> <p>“(10) George L. Bradbury, whose deposition is on file herein, if re-examined would testify that in his opinion the use of the Indiana & Lake Michigan Railway by the. Terre Haute & Indianapolis Railroad Company from March 1, 1896, to November 13, 1896, was reasonably worth as much as the use of the same by the receiver for a similar period of time.”</p> <p>He further testified:</p> <p>“There are several elements on which I would form a judgment of the value. One is the distance, about 40 miles, the towns that it reaches, the terminals that it has, the value of its location, its railroad connections with the old Chicago & West Michigan, now I think the Pere Marquette. It reaches St. Joseph, with a good outlet for the lake, good dock privileges, with a town there of 7,500 people, with a number of industries, also good access to Benton Harbor, and a good bridge, giving it access to a number of industries; with the business it affords by the lake, and with the business at South Bend, with'its connection to and as a connecting link .between the roads at South Bend and the lake and the Pere Marquette road. Moreover, beyond all this, there is some local business along its line.”</p> <p>Moses L. Scudder, chairman of the bondholders’ committee of the Lake Michigan road, testified for petitioner that he had been engaged for 20 years in examining railroad properties—negotiating and making investments in railroad securities. He was acquainted with the Lake Michigan road, and became president of the St. Joseph, South Bend & Southern Railroad Company, organized by the purchasers of said road at the foreclosure sale.</p> <p>Being asked to express his opinion as to the value of the use of the Lake Michigan road by the receiver during the time he was in possession of it, he answered, over respondent’s objection:</p> <p>“From my experience with the property, my knowledge of it during the time of the receivership, I would say that the property, without rolling stock, had a fair rental value of from $15,000 to $20,000 a year. My estimate is based on my experience of the property, my knowledge of the fact that it had good terminals at St. Joseph, Mich., and also good terminals at South Bend, giving it a valuable entrance to the Studebaker and Oliver plants, from which large business was derived.”</p> <p>Mr. Scudder further testified that during the year immediately following the surrender of the property by the receiver the receipts, expenses, and net earnings were as follows:</p> <p>St. Joseph, South Bend & Southern Railroad.</p> <p>Statement of operations for one year from March 1, 1899, to February 28, 1900.</p> <p>Receipts.</p> <p>Freight .......................................$48,820 14</p> <p>Passengers .................................... 19,729 14</p> <p>Express ....................................... 1,253 53</p> <p>Mails ......................................... 2,754 58</p> <p>Switching ..................................... 4,873 58</p> <p>Track rental .................... 1,165 00</p> <p>Car mileage ................................... 2,875 26</p> <p>Miscellaneous ........................... 169 13</p> <p>$81,640 36 $81,640 36</p> <p>Expenses.</p> <p>Maint. of way and structure ...................$13,896 89</p> <p>“ “ equipment .......................... 4,139 99</p> <p>Cond. transportation ........................... 42,926 87</p> <p>Gen. expenses ................................. 13,378 27</p> <p>- $74,342 02</p> <p>Net earnings ............................................ 7,298 34</p> <p>Taxes for 1898 ......................................... 2,236 40</p> <p>Surplus ........................................... $ 5,061 94</p> <p>Mr. Scudder further testified that the item of $13,378.27 charged as general expense embraced the expenses in New York of the management of the property. About one-half of this item consisted of this expense. He further said:</p> <p>“There were extraordinary expenses attending the organization of a new company, purchasing of rolling stock, and getting the various departments in condition for operation, which could not come in anywhere else, and were put in as general expenses. It was a much larger item than the same would have been if the road could have been subsequently continued under the operation of a new company.”</p> <p>The St. Joseph, South Bend & Southern Railroad Company provided itself with about $100,000 worth of equipment, which it used during the year in question.</p> <p>Mr. Scudder further testified that at the end of the first year of operation of the road by the St. Joseph, South Bend & Southern Railroad Company the same was leased for a period of 50 years to the Indiana, Illinois & Iowa Railroad Company, for $20,000 per year, taxes and maintenance. The lease is exhibited with his deposition as Exhibit A. Mr. Scudder further testified that the said lessee took possession of the road in February, 1900, and that thereafter the stipulated rental had been paid by the lessee to the lessor.</p>

<p>On Plea to Jurisdiction.</p>

<p>1. Removal oe Causes—Fed eh at, Question—Action Based on State Statute.</p> <p>An action by a state to enforce collection of a tax imposed by a state statute is not one of wbieb a Circuit Court of tbe United States would have original jurisdiction under section 1 of tbe judiciary acts of 1887 and 1888 (Acts March 3, 1887, c. 373, 24 Stat. 552', and Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]) either as being between citizens of different states or as arising under tbe Constitution or laws of tbe United States, and is therefore not removable by defendant under section 2 (24 Stat. 552, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), although tbe petition may be demurrable for a reason found in tbe federal Constitution.</p>

<p>1. Shipping—Negligent Navigation—Damage Caused by Swell.</p> <p>The burden rests upon a vessel under way, in order to exonerate herself from liability for an injury to one which was stationary, to show that it was not in her power to prevent the injury by adopting any practicable precautions, and in shallow waters she is bound to know and guard , against the effect of the swell and suction caused by her movement.</p> <p>2. Same—Breaking Moored Raft.</p> <p>A log raft was lying next to the bank of a river, outside of the channel, and in a proper place, being most of its length inside of a boom, when it was broken up, and some of the logs were lost, by reason of the swell caused by the propeller of a large steamship, which in leaving her berth just above the raft and starting down stream struck an obstruction, and put on full steam in an endeavor to pass over it, the stern swinging around in close proximity to the raft. Not being successful in passing the obstruction she backed off, and passed around it at a safe distance from the raft. HeZ<?., that there was nothing to show that the steamer could not have avoided the injury to the raft by the exercise of reasonable care, and that she was liable for the loss.</p>

<p>1. Extradition—Construction op Treaty with Great Britain—Laws op Country.</p> <p>The treaty of 1889 (26 Stat. 29) between Great Britain and the United States, which provides for extradition for certain acts of fraud, “made criminal by the laws of both countries,” does not by such phrase limit the right of England to extradition by this country to persons charged with acts which are made criminal by the laws of the United States, but must be construed in the light of the well-understood fact that under our system of government the power of the federal government to legislate with respect to crimes is limited, while the power of the states to legislate with respect to other offenses is recognized; and when, by the law of England and by the law of the state in which a fugitive from English justice is found, the fraudulent acts with which he is charged are made criminal, he is fairly within the treaty.</p> <p>2. Same—Power op Circuit Courts—Admission to Bail.</p> <p>In the absence of legislation conferring it, Circuit Courts of the United States are without power to admit to bail persons arrested for extradition under a treaty with a foreign government.</p> <p>¶ 2. See Extradition, vol. 23, Cent. Dig. § 14.</p>

This action was brought by defendant in error against plaintiff in error in the common pleas court of Richland county, Ohio, from whence it was removed to the lower court, to recover damages for a personal injury sustained by him whilst in its employ as a fireman on one of its yard engines. The injury was quite serious, and he obtained a verdict and judgment for the sum of $15,000. His regular employment was not in the yard, but out on the road.

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

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

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

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

<p>In Equity. Suit to quiet -title. On demurrers to bill.</p>

<p>1. Corporations—Insolvency—Appointment of Receiver.</p> <p>The Delaware statute of March 25, 1891 (19 Laws Del. c. 181), authorizing the Chancellor on the application of creditors or stockholders of insolvent corporations to appoint receivers to take charge of the property, business and affairs of such corporations, with power to collect debts, claims and property due and belonging to them, and to administer their affairs, such receivership to be continued so long as the Chancellor shall think necessary, creates a purely equitable right and remedy which, other jurisdictional conditions existing, may be enforced by a bill filed on the equity side of a circuit court of the United States by unsecured creditors who have not reduced their claims to judgment, as well as by stockholders or judgment creditors.</p> <p>2. Courts—Jurisdictional Amount.</p> <p>The jurisdictional amount exists where the assets of an insolvent corporation proceeded against under the statute exceed, exclusive of interest and costs, the sum or value of $2,000, and the claims of the creditors joined in the bill in the aggregate exceed such jurisdictional amount, although no creditor has a claim or claims equal to that amount; and, further, the jurisdictional amount exists where the assets of such corporation exceed, exclusive of interest and costs, the sum or value of $2,000, although the claims of the creditors joined in the bill are not in the aggregate equal to that amount.</p> <p>8. Corporations—Insolvency—Receiver.</p> <p>In the absence of statutory authority, the complainants, as general unsecured creditors at law, who have not reduced their claims to judgment, could not, solely on the ground of insolvency, successfully maintain their bill against the defendant to deprive it of the possession of its assets and secure their administration and distribution.</p> <p>4. Same.</p> <p>The Delaware statute in conferring on the Chancellor authority, solely on the ground of insolvency, to appoint receivers for insolvent corporations and take possession of and fully and finally distribute their assets, provided a purely equitable procedure for the enforcement of equitable rights on the part of creditors and stockholders.</p> <p>5. Same—Rights of Unsecured Creditors,</p> <p>Under the settled construction of the statute its provisions apply as well to general unsecured creditors as to creditors whose claims have been reduced to judgment or otherwise judicially ascertained or are admitted; and in the absence of such a statute neither the court of chancery nor any other court in Delaware would at the instance of creditors have authority, solely on the ground of insolvency, to appoint a receiver to take charge of the affairs and collect and make final distribution of the assets of a Delaware corporation.</p> <p>6. Federal Courts—Jurisdiction.</p> <p>While a state law cannot confer jurisdiction on any federal court, it may create a substantial right which the proper federal court, otherwise possessing jurisdiction, may enforce by a proper remedy whether in equity, in admiralty, or at law.</p> <p>7. Same—Equity Practice.</p> <p>There is a fundamental distinction growing out of the federal constitution and legislation between legal and equitable procedure. The seventh amendment to the Constitution provides that “in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Section 16 of the Judiciary Act of September 24, 1789 [1 Stat. 82], reproduced in section 723 of the Revised Statutes [U. S. Comp. St. 1901, p. 583], enacts that “suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may he had at law.” These constitutional and statutory provisions control the procedure of the federal courts; and the propriety of resorting in any given case to the law side of the court, on the one hand, or, on the other, to the equity side, must be determined with reference to them.</p> <p>¶ 2. Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>¶ 3. See Corporations, vol. 12, Cent. Dig. § 2220.</p> <p>8. Same—Jurisdiction at Law and in Equity.</p> <p>So marked is- the distinction between the jurisdiction of the courts of the United States in equity and at law with respect to procedure, that the blending together in one suit in a federal court of essentially legal and equitable remedies cannot be authorized or justified by any state statute or practice on the subject; but, though no state legislation is competent to extend or restrict the jurisdiction of the federal courts, a state may create an enlargement of rights and remedies, whether equitable or legal, which may be enforced or pursued in a federal court, in the exercise of that branch of its jurisdiction which is appropriate to the case, and where a state statute creates a right and a remedy for its protection or enforcement, and such remedy substantially conforms to the procedure in chancery, it, in the absence of a plain, adequate and complete remedy at law, may be pursued on the equity side of a federal court. Where the direct object of a suit is the judicial ascertainment of the existence and amount of a pecuniary legal demand and the enforcement of its payment by the process of the court in which the suit is brought, the proceeding is essentially an action at law and in a federal court must be so treated, regardless of state legislation. Nor is the distinctively legal nature of such a remedy lost merely because, owing to the circumstances of a given case, the purpose of the action may fail of accomplishment. “The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct.”</p> <p>9. Equity—Jurisdiction.</p> <p>If a remedy is essentially legal and in its nature fitted or adapted, in the absence of obstacles, which may or may not exist, to attain the object in view, then, whatever equitable procedure may in particular cases be resorted to in aid of the legal remedy, it cannot wholly displace it. The jurisdiction of chancery to reach equitable or legal assets of a defendant, whether a corporation or a natural person, in aid of a legal remedy for a money demand is indisputable. But such an exercise of jurisdiction is not by way of substitution for, but only in aid of, the legal remedy, and it can be resorted to only after the plaintiff! has exhausted such remedy. This necessitates the obtaining of judgment for the demand, and, usually, the issuance of execution and its return unsatisfied.</p> <p>10. Same—Remedy at Law.</p> <p>The fact that equitable relief can be granted in aid of a legal remedy only after the plaintiff has exhausted such remedy precludes the possibility of any clash or conflict between legal jurisdiction and equitable jurisdiction or of any blending of legal and equitable remedies in the same suit.</p> <p>11. Same.</p> <p>There is a clear distinction between the exercise of equitable jurisdiction in aid of a legal remedy for the collection of a pecuniary legal demand, and the exercise of equitable jurisdiction in enforcing a purely equitable right by a purely equitable remedy, created by a valid state statute, not in aid of any legal remedy, but wholly independently thereof, though the existence of such equitable right and remedy may presuppose and be dependent on the existence of such pecuniary legal demand.</p> <p>12. Same.</p> <p>The fact that a right may he cognizable at law by no means determines that it may not be cognizable in equity and serve as the basis for a purely equitable remedy; for in many cases a given demand or interest may constitute the foundation of a suit either at law or in equity, and whether the procedure shall be at law, on the one hand, or, on the other, in equity, absolutely depends on the object of the suit and the nature of the relief sought. If the procedure and relief are essentially equitable the circumstance that they bear relation to a legal demand is immaterial.</p> <p>18. Same.</p> <p>Where the procedure and relief provided by a state statute are essentially equitable and such relief is impossible of attainment in any action at law, not owing to the existence of any accidental or abnormal obstacles or difficulties, but by reason of the essential nature of such action and legal process, a case for purely equitable cognizance under the statute is presented.</p> <p>14. Same—Aid of Legal Remedy.</p> <p>Where equitable rights and remedies under the statute, founded on or bearing relation to pecuniary legal demands, would be defeated by exhausting the remedy at law on such demands, such equitable remedies cannot be considered as in aid of the legal remedy. In such a case to enjoy the equitable rights and remedies provided by the statute it is necessary that the equity procedure therein authorized should be followed, without any exhaustion of the legal remedy, for being a purely equitable procedure the constitutional guaranty of jury trial would, of course, have no application.</p> <p>15. Same—Procedure.</p> <p>The fact that the equitable procedure provided by a state statute for the enforcement of a substantial equitable right created thereby does not in all respects correspond with the' mere forms and modes of procedure usually observed in federal courts on their equity side, or that the enforcement of such new equitable right requires a modification of the accustomed procedure, not violative of established rules and principles, offers no bar to the prosecution in equity of such right in the-federal courts.</p> <p>16. Same.</p> <p>No action at law by a non-judgment creditor, nor any legal process on behalf of a judgment creditor, can enforce the right conferred by the statute. An exhaustion of the legal remedy for the collection of the pecuniary demands of complainants, proceeding under the statute, would not only fail to secure to them the relief prayed for, but necessarily deprive them of it. An application of the assets of the insolvent corporation to final process at law would be destructive of the right conferred by the statute. This is not a case in which equitable jurisdiction can be exercised only in aid of a legal remedy for the removal of obstacles, but, on the contrary, one in which, by reason of its object, the complainants, though non-judgment creditors, are pursuing ab initio a purely equitable remedy for the enforcement of a purely equitable right</p> <p>17. Assumpsit—Money Had and Received.</p> <p>Where an executory contract is void by a state statute, moneys paid on account of it by an innocent party may be recovered in assumpsit on the count for money had and received.</p> <p>(Syllabus by the Court.)</p>

<p>Í. Corporation—Name—Similarity to One in Use—Ini unction.</p> <p>The corporate name of the complainant contained in its original charter April 15, 1869, was The Philadelphia Trust, Safe Deposit and Security Company of the City of Philadelphia. Subsequently by a supplement to its charter obtained March 10, 1871, its name was changed to The Philadelphia Trust, Safe Deposit and Insurance Company, and since that time, while using its legal corporate name in judicial proceedings and transactions of business, it has by usage become generally known and is commonly spoken of as “The Philadelphia Trust Company” or “Philadelphia Trust Company.” It is engaged in a general trust business in Philadelphia, other parts of Pennsylvania, in New Jersey, Delaware, and other states or territories of the Union. The defendant became incorporated under the general incorporation law of Delaware (21 Del. Laws, p. 445, e. 273), July IQ, 1902, having authority, among other things, to carry on a general trust business, not only in Delaware, but in any part of the world. Letters intended for the complainant have frequently been addressed to it as “The Philadelphia Trust Company” or “Philadelphia Trust Company.” On these facts and the other circumstances disclosed in the case, held, that a preliminary injunction should issue restraining the defendant from the use of the name adopted by it.</p> <p>2. Same—Certificate of Incorporation.</p> <p>Under the general incorporation law of Delaware a certificate of incorporation must set forth “the name of the corporation, which shall be such as to distinguish it from any other corporation engaged in the same business, or promoting or carrying on the same objects or purposes in this state.” This statutory requirement, neither in terms nor by fair implication, is restricted only to cases in which the name of the corporation created under it is distinguished from the merely legal name of the other corporation. The complainant, although its legal name is The Philadelphia Trust, Safe Deposit and Insurance Company, is known in Delaware and elsewhere as “The Philadelphia Trust Company.” The incorporators of the defendant in adopting the latter name in the charter clothing the defendant with some of the powers exercised by the complainant in Delaware, acted in violation of the statute, and did not acquire the right to use the name of the defendant sought to be appropriated to the defendant.</p> <p>8. Same.</p> <p>The name adopted by the defendant is precisely the name by which here and elsewhere the complainant is generally known, and was presumably known to the incorporators of the defendant when they obtained its charter. Many of the powers contained in the charters of the two corporations are substantially alike, if not in all instances expressed in ipsissimis verbis, and can be exercised in the same territory.</p> <p>4. Same—Misleading Public.</p> <p>The use of the name, adopted by the defendant, in the exercise of powers common to the two corporations would be directly calculated to produce confusion in tlieir business, mislead the public as to the identity of the company with which it may be intended to deal in the matter of trusts and administration of estates, and in other respects create uncertainty and mistake as to identity leading to consequences of the gravest character; and also to produce unfair competition in business.</p> <p>¶ 1. Use of corporate and firm names as trade names, see notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner’s Malkaffee Fabriken Mit Beschraenkter Haftung v. Pastor Kneipp Medicine Co., 27 C. C. A. 357.</p> <p>See Corporations, vol. 12, Cent. Dig. § 137.</p> <p>¶ 4. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p> <p>5. Same—Selection oe Name.</p> <p>Original incorporators under the general incorporation law of Delaware have no right to select a name either intended or directly calculated to work a wrong. The statutory authority and requirement to insert a corporate name in the certificate of incorporation were not intended to enable such incorporators by a choice of name to invade the legitimate rights of others. While the purpose of the law is to enable persons to acquire and enjoy a corporate franchise, it does not contemplate that the incorporators shall take advantage of its provisions to pursue such an injurious course of action as a court of equity would enjoin in the case of individuals.</p> <p>6. Same—Similarity of Names.</p> <p>The difference between the corporate name of the complainant and that of the defendant consists in the omission from the latter of the words “Safe Deposit and Insurance.” There can be no doubt that should the two names be placed side by side no one able to read would mistake the one for the other. But this can be said with respect to many names where infringement or violation has been found by the courts.</p> <p>7. Same.</p> <p>The words “Philadelphia Trust” occur in both of the corporate names of corporations having to a large extent common powers. One of the most prominent of these powers is the right to carry on a general trust business. That such power is the most prominent is shown by the fact that the complainant has been generally known as “The Philadelphia Trust Company” or “Philadelphia Trust Company,” instead of “The Philadelphia Safe Deposit Company” or “Philadelphia Safe Deposit Company," or “The Philadelphia Insurance Company” or “Philadelphia Insurance Company.” This usage with respect to the name of the complainant is a fair indication that the words imitated by the defendant are so much of the complainant’s name “as will mislead dealers into the belief that the corporations are the same.”</p> <p>(Syllabus by the Court.)</p>

In Equity. On demurrer to bill. Complainants, Alfred Kessler and Gustave Kissel, surviving members of the firm of Kessler & Co., and executors of William Kessler, deceased, and Charles K. Beekman, executor of William K. Beekman, deceased, who are citizens bf New York, who were stockholders of the Ensley Land Company at the time of the grievances complained of, and are still such stockholders, filed their bill against the Ensley Land Company, the Ensley Company, G. B.…

<p>In Equity. Suit for infringement of trade-mark</p>

<p>1. Bankruptcy—Allowance to Attorneys—Fund Produced by Mortgaged Property.</p> <p>Where mortgaged property was by agreement sold by order of the bankruptcy court, neither the attorney for the petitioning creditors, who unsuccessfully contested the validity of the mortgage, nor the attorney • for the bankrupt, is entitled to an allowance of fees from the fund produced, which belongs to the mortgage creditors, since they were in no way benefited by the bankruptcy proceedings.</p> <p>2. Same—Reasonable Attorney’s Fees.</p> <p>While courts of bankruptcy are given discretion to allow reasonable attorney’s fees to the attorneys for the petitioning creditors and for the bankrupt in involuntary proceedings, such discretion must be controlled by the general policy of the law, which requires estates to be administered with severe economy; and what constitutes a reasonable allowance depends to a large extent upon the amount of the estate to be distributed.</p> <p>8. Same—Allowance to Bankrupt’s Attorney.</p> <p>The discretion to allow a reasonable attorney’s fee to a bankrupt in involuntary cases is limited to an allowance for such services as are rendered in the performance of the bankrupt’s duties, prescribed by the act, and which are in aid of the administration of the estate.</p> <p>¶ 3. See Bankruptcy, vol. 6, Cent. Dig. § 897.</p> <p>4. Same—Commissions of Referee—Proceeds of Mortgaged Property.</p> <p>Under Bankr. Act July 1, 1898, c. 541, §? 40, 30 Stat. 556 [U. S. Comp. St. 1901, p. 3436], prior to the amendmént of 1903 (Act Feb. 5, 1903, c. 487, 32 Stat. 797), a referee is not entitled to commissions on the proceeds of mortgaged property, sold by order of the court of bankruptcy, and which are paid to the mortgagee. •</p> <p>5. Same—Services of Referee as Special Master.</p> <p>A referee, to whom the contested claim of a mortgagee was referred as special master, and who took testimony thereon, the result being that the mortgage was sustained, may be given an allowance for his services from the proceeds of the mortgaged property.</p>

In Equity. Bill by the Seattle Gas & Electric Company, a corporation of the state of Washington, having a franchise for supplying gas to the inhabitants of the city of Seattle, for an injunction to restrain a rival company from interfering with the mains an,d service pipes by which the complainant distributes illuminating gas throughout the city.

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

<p>in Equity. On motions to strike demurrers and pleas in abatement from the files.</p>

<p>1. Shipping—Destruction of Rapt—Obstruction to Navigation.</p> <p>A log raft Is a vessel, and entitled to the same rights in navigable streams as other vessels. If such a raft accidentally becomes grounded, or otherwise obstructs navigation, other vessels are required to submit to a reasonable delay until the owner has had time to remove it, in the exercise of proper skill and reasonable diligence and dispatch, before they are entitled to destroy it as a nuisance.</p> <p>2. Same.</p> <p>A raft of logs became lodged against a bridge across a river, so as to entirely obstruct the passage of other vessels, and a steamer passing down the river ran over the center of it, breaking it up and scattering the logs, some of which were lost. Held, that the steamer was liable for the loss, whether or not those in charge of the raft were negligent in failing to exercise proper skill and diligence to remove the obstruction, because of her failure to use reasonable and ordinary care to prevent unnecessary injury, which she might have done by towing the raft out of the way, or, at least, by cutting it, so as to prevent the loss of the logs.</p> <p>8. Same—Evidence—Judicial Notice.</p> <p>A federal court in Alabama cannot take judicial notice of what constitutes a “sack raft,” and that a particular raft is such a raft and unlawful, where the testimony shows that there is no such thing as a sack raft commonly known within its jurisdiction, there being no law of the United States or of the state describing such a raft.</p>

<p>Action for libel by plaintiff, a citizen and resident of Minnesota, against defendant, a citizen and resident of New York.</p> <p>Service of summons was made by serving on one Little, a traveling solicitor of advertisements for defendant, while within the district of Minnesota. Defendant appeared by its attorneys specially, and moved upon affidavits to set aside the service of summons on the ground that, under the state and federal statutes, the service was not binding upon the deflmdant.</p> <p>The facts, which are not fully stated in the opinion, appear from all the affidavits as follows: Defendant corporation is in the business of publishing books and other publications, including periodicals, and including a magazine known as “McClure’s.” It has no agent or employe who resides in Minnesota or who has an office there. Defendant has no office in Minnesota. It circulates its magazine in Minnesota by mail from New York. The local dealers are supplied by the American News Company, and not by defendant. In its magazine business the advertising receipts are twice its circulation receipts. It does a large advertising business in Minnesota, which it obtains there through its traveling solicitors, and especially through Little, the man upon whom service in this case was made.</p> <p>Little is a salaried employs of defendant, and is paid $75 a week and his expenses, including his office expenses. Little resides and has his office, maintained by the defendant, in Chicago. His office is advertised by himself and the defendant as the “Western” office of McClure’s. Little designates himself on his letterheads, and in his correspondence, and on his business cards, and on the window of his office, as “Western Representative” of McClure’s Magazine. The scope of his employment is that he travels from the Chicago office through different Western states, including Minnesota, at stated intervals, working up advertising business for the magazine, and soliciting and taking orders for advertising. He can only quote rates as fixed by the home office, and his orders as to space and copy are subject to the approval of the home office. He cannot make definite contracts, but takes orders and submits them to defendant. Defendant, through’ its home office, makes all collections and fixes the terms of payment. Complaints from Minnesota customers are submitted to Little, and through him to the home office, for adjustment. On January 26, T903, Little was within the state of Minnesota visiting customers of the magazine, and was served with summons in the action.</p>

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

<p>In Bankruptcy. On motion to punish for contempt.</p>

<p>1. United States—Presenting Forged Papers in Support op Claim—Evidence to Sustain Indictment.</p> <p>Rev. St. § 5421 [U. S. Comp. St. 1901, p. 3667], covers three offenses: First, the making of any forged or counterfeit deed or other writing for the purpose of obtaining any sum of money from the United States or any of its officers; second, the uttering of any such forged or counterfeit paper with intent to defraud the United States, knowing it to have been so forged; third, the transmitting or presenting to any office or officer of the government any such writing, with knowledge that it is false or forged, with intent to defraud the United States. Belch, that such offenses are separate and distinct, and that proof that a defendant forged papers purporting to transfer the right to an additional homestead, which is a vendible right, and sold and delivered the same to another for a consideration paid to him, and without any agreement or understanding with the purchaser with respect to the use to be made of them, would not support an indictment under the third subdivision of the section, for transmitting such papers or procuring them to be transmitted to a land office with intent to defraud the United States.</p>

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

<p>On Motion for Suspension of an Order Imposing a Fine for Contempt.</p>

<p>L Jurisdiction of Federal Courts—Diversity of Citizenship—Rearrangement of Parties.</p> <p>A federal court is without jurisdiction on the ground of diversity of citizenship of a suit for an accounting under a written contract, where the defendants are all citizens of the same state, and one of them is a party to the contract on the same side as complainants, made a defendant only because he refused to join as a complainant.</p> <p>¶ 1. Diverse citizenship as a ground of federal jurisdiction, see notes te Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>See Courts, vol. 13, Cent. Dig. §§ 855, 862.</p>

<p>On Demurrer to Indictment for Violation of Postal Daws.</p>

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

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

This action was brought by the South Omaha National Bank, of South Omaha, Neb., the defendant in error, against the George Adams & Frederick Company, the plaintiff in error.

<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 Eastern District of Pennsylvania.</p>

<p>1. Corporations—Action to Charge Stockholder—Proof to Establish Relation.</p> <p>An entry of the name of a person in the stockbook of a bank as a shareholder, without proof of knowledge, assent, or confirmatory act on his part, is not sufficient to establish the relation to charge his estate after his death with a statutory liability as a stockholder.</p>

<p>A Appeal—Review—Assuming Finding of Jury.</p> <p>It is not within the province of an appellate court to inquire into the probable grounds of a verdict, and it cannot assume, from the fact that the jury in an action on an insurance policy returned a" verdict for plaintiff for a sum much smaller than the value of the property destroyed as testified to by him, that they found him to have sworn falsely, and on such assumption direct a judgment for defendant notwithstanding the verdict, especially where the court charged, in accordance with the terms of the policy, that, if they so found, plaintiff was not entitled to recover.</p>

In Equity. Suit for infringement of reissued letters patent No. II, 685 for a bottle stopper, issued July 26, 1898, to .William Painter on original patent No. 540,072. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 468,258, for a bottle-sealing device, granted to William Painter February 2, 1892. On final hearing.</p>

<p>L Peonage—Construction op Statute Prohibiting—Offenses.</p> <p>Under Rev. St. § 5526 [U. S. Comp. St. 1901, p. 3715], which makes it an offense to hold, arrest, or return, or to cause or aid in the arrest or return of, any person “to a condition of peonage,” it is immaterial to such offense whether or not the condition of peonage exists by virtue of a local law or custom creating a system of peonage, or whether it exists in violation, or without the sanction, of law.</p> <p>2. Penal Statutes—Rules op Construction—Penalty against Invasion on Personal Rights.</p> <p>Statutes imposing penalties for the invasion of the rights of the citizen in order to protect him in his liberty and happiness are not subjects of disfavor in the law, and are not construed with the same strictness or on the same footing as those which regulate or restrain the exercise-of a natural right or forbid the doing of things not intrinsically wrong.</p> <p>3. Peonage—What Constitutes “Condition op Peonage.”</p> <p>The “condition of peonage,” to hold or return a person to which is made a criminal offense by Rev. St. § 5526 [U. S. Comp. St. 1901, p. 3715], is a, condition of enforced servitude by which the servitor is restrained of his liberty and compelled to labor in liquidation of some debt or obligation, either real or pretended, against his will; and any agreement giving another the right to exact such servitude is invalid under the law, and treated as though made involuntarily, and affords the creditor or master no protection.</p> <p>L Same.</p> <p>What influence, force, or threats to compel a person to render service to another in liquidation of an obligation amounts to coercion, such as, if effective, will render the service involuntary and create a condition of peonage, must be determined by taking into consideration in each case the relative inferiority of the person contracting to perform the-service to the person exercising the force or influence to compel its performance.</p> <p>5. Same—Offense on Holding to Condition op Peonage.</p> <p>A person who hires another or induces him to sign a contract by which he agrees during the term to be imprisoned or kept under guard, and under cover of such agreement afterward holds the party to the performance of the contract by threats or punishment or undue influence, subduing his free will, when he desires to abandon the service, is guilty of holding such person to “a condition of peonage.”</p> <p>6. Same.</p> <p>A person who falsely pretends to another that he is accused of crime,, and offers his good offices to prevent his conviction if he will pay a sum of money, thereby to satisfy the prosecutor, and thus induces such party to sign a contract obligating himself to work to reimburse the-amount paid out or pretended to be paid out for this purpose, and to submit to restraint and deprivation of his liberty while he is performing the contract, is guilty of holding such person, or causing him to be held, to a condition of peonage, whenever such person, having so entered on. performance of the contract, desires to leave it, but is compelled to remain and. perform it by threats or punishment, .subduing his freedom of will; and any third person for whose benefit such a contract is made, who, knowing such facts, becomes the custodian of the person so held to servitude and enforces performance of the contract, is also guilty of the offense.</p> <p>7. Same.</p> <p>If one person carries another before a magistrate, informing him that he is accused of crime, and the magistrate induces the accused, who is of weak mind, or little intelligence, or confiding, to believe that he has been sentenced to hard labor for a fine, when in fact no offense was charged, no warrant issued, and no judgment entered, and such person is induced by such fraudulent means to submit to restraint of his liberty, the persons so concerned are guilty of causing the accused to be held to a condition of peonage.</p> <p>8. Kidnapping—False Accusations of Crime.</p> <p>Any person who falsely accuses another of crime, and carries him before a magistrate in order that he may be convicted and put to hard labor, having at the time the purpose or design to hire such person or to enable some other person to hire him, is guilty, under Rev. St. § 5525 [U. S. Comp. St. 1901, p. 3715], of “carrying away any other person with intent that such other person be sold into involuntary servitude.”</p> <p>9. Conspiracy against Exercise of Civil Rights.</p> <p>If two or more persons conspire to effect such purpose by false accusations, they are guilty, under Rev. St. § 5508 [IT. S. Comp. St. 1901, p. 3712], if such accused person is a citizen of the United States, of a conspiracy to deprive him of the free exercise or enjoyment of a right or privilege secured to him by the Constitution of the United States.</p> <p>10. Peonage—Restraining Convict after Expiration of Term.</p> <p>Under the statute of Alabama which permits a person convicted of crime to sign a contract in open court, with the written approval of the judge, by which he submits himself to servitude to his surety, on confession of judgment by the latter for the fine and costs, until such fine and costs have been reimbursed by his labor, the provisions of the statute must be strictly followed, and the contract cannot be extended beyond the payment of the fine and costs, nor can it be transferred without the consent of the convict. If he is held thereunder against his will and by force or threats after the fine and costs have been paid, or by another to whom the contract has been transferred without his consent, the person so retraining him is guilty of holding him to a condition of peonage.</p> <p>11. Same—Acts of Judicial Officer.</p> <p>A magistrate or other judicial officer is not criminally liable for an error of judgment or for any act honestly performed under an unconstitutional law, but where he corruptly exercises his functions in order that a citizen may be convicted unlawfully, and sentenced, so that a particular person with whom he has an understanding, express or implied, by becoming surety on a confession of judgment may get the custody of the convict or make a profit out of a contract to be made between the convict and his surety, in consequence of which the convict is restrained of his liberty and put to hard labor, such magistrate cannot escape criminal liability to the United States for the conspiracy, and its natural and designed results in the holding of a citizen to a condition of peonage, because of the official character of his acts.</p> <p>18. Statutes—Constitutionality—Imposing Imprisonment for Debt.</p> <p>Act Ala. March 1, 1901 (Acts 1900-01, p. 1208, § 1), makes it a penal offense where any person who has contracted in writing to labor for or serve another for any given time, or who has by written contract leased or rented land from another for any specified time, or who has contracted in writing with the party furnishing lands, or the lands and teams to cultivate it, either to furnish the labor or labor and teams to cultivate the lands, shall afterwards, without the consent of the other party and without sufficient, excuse, to be adjudged by the court, “leave such other party or abandon said contract or leave or abandon the leased premises or land and take employment of a similar nature from another person without first giving him notice of the prior contract.” Another statute subjects the new employer to heavy penalties if he employs such person, with knowledge of the prior contract, without the consent of the former employer. HeldI, that such statute, which imposes a criminal liability and subjects a person to imprisonment for the mere breach of a private contract if he exercises his legal right to enter into another contract, is invalid as in violation of the provision of the state Constitution prohibiting imprisonment for debt, its clear purpose and effect being to coerce the payment of a purely civil liability, arising from breach of contract, by means of criminal proceedings.</p> <p>13. Same—Class Legislation.</p> <p>Such statute is also unconstitutional as class legislation, subjecting laborers and renters to penalties, for breach of contract, which are not imposed on any other class of citizens.</p> <p>14. Constitutional Law—Denial of Equal Protection of Laws—Statute</p> <p>Establishing System of Peonage.</p> <p>Such act is also void, as in violation of the Constitution of the United States, in denying to the classes of citizens affected the equal protection of the laws, and of the thirteenth amendment, prohibiting involuntary servitude except as a punishment for crime, and its enforcement establishes a system of peonage within the meaning of Eev. St. § 1990 [U. S. Comp. St. 1901, p. 1266], enacted to carry such amendment into effect.</p>

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

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

<p>1. Master and Servant—Liability, op Owner op Licensed Cab por Negligence op Driver—Defense op Bailment.</p> <p>Under the ordinances of the city of New York regulating the use of cabs and hacks, which require licenses for both cabs and drivers, and that the cabs shall be numbered and have the name and place of business of the owner and licensee posted therein, and provide that every owner or driver of any hackney cab shall wear conspicuously a metal badge having engraved thereon the words “Licensed Hack” and the number of such licensed hackney cab, “said badge to be issued to and belong to said owner and to be issued by him to any driver representing him and for whom he shall be responsible,” the relation between the owner of a licensed cab, having a corresponding driver’s badge, and a driver whom he puts in charge of such cab and to whom he furnishes the badge, is that of master and servant, so far as relates to passengers or the public, whatever may be their relation as between themselves; and the owner of a licensed cab who lets the same, with a horse and harness, by the day, for a fixed price, to the driver, to whom he also furnishes his badge, cannot avoid liability to a person injured in the street through the negligence of the driver, on the ground that he was merely a bailor.</p> <p>2. Municipal Corporations—Powers op Legislation—Validity of Ordinance.</p> <p>The provisions of the state statute conferring upon the city of New York the power to establish ordinances “not inconsistent with the laws of the state,” by such exception merely inhibit legislation inconsistent with the statutory law applicable to the city, and do not preclude the city from enacting an ordinance, in the exercise of its police powers, because it may change a common-law rule of personal liability prevailing in the state.</p>

<p>In Admiralty. Suit to recover damages for breach of charter party.</p>

<p>In Equity. Suit to enforce lien against trustee in bankruptcy.</p>

<p>1. Federal and State Courts—Suit eor Specific Performance of Contract of Decedent—Pendency of Probate Proceedings.</p> <p>A federal court cannot entertain a suit for the specific enforcement of a contract by which an intestate decedent agreed to make complainant his sole heir, while his estate is in process of administration in a probate court of the state as an insolvent estate, since, should it decree the relief prayed for, there would be no property within its jurisdiction on which its decree could operate.</p> <p>¶ 1. Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575. Pendency of action in state or federal court as ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.</p>

<p>Criminal Prosecution. On motion of defendants for discharge.</p>

<p>1. Bankruptcy—Who may Become Bankrupt—Persons Engaged in Farming.</p> <p>The owner of a farm upon which he resides, but who has leased the same for a year for a money rental, is not engaged in farming, and may be adjudged an involuntary bankrupt, under Bankr. Act 1898, § 4b, Act July 1, 1898, 30 Stat. 547, c. 541 [U. S. Comp. St. 1901, p. 3423].</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank of Mattoon, Ill., v. First Nat Bank, 42 C. C. A. 4.</p>

<p>1. Jurisdiction of Federal Court—Ancillary Suit by Receiver—Nonresidence of Defendants.</p> <p>A Circuit Court of tbe United States, which has appointed a receiver for an insolvent building and loan association in a suit to wind up its affairs, has jurisdiction of a suit brought by him to collect from a borrowing stockholder and to foreclose a mortgage securing the loan, regardless of the citizenship or residence of the defendants, or the fact that the mortgaged property is situated in another district.</p> <p>2. Same—Waiver of Objection—Pleading to Merits.</p> <p>The filing of a demurrer to a bill for want of equity is a waiver of an objection to the jurisdiction of the court based on the nonresidence of the defendant in the district.</p> <p>¶ 1. Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.</p> <p>Suits by and against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. .49.</p>

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

<p>1. Bankruptcy—Corporations—Trading or Mercantile Pursuits.</p> <p>A corporation conducting a public warehouse in which it receives and stores grain and other merchandise for hire, issuing receipts therefor, is not engaged in “trading” or “mercantile pursuits,” and is not subject to be adjudged an involuntary bankrupt under Bankr. Act 1898, § 4b, Act July 1, 1848, c. 541, 30 Stat 547 [U. S. Comp. St. 1901, p. 3423].</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat Bank v. First Nat. Bank, 42 C. C. A. 4.</p>

<p>On Motion to Retax Costs.</p>

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

<p>1. Injunction — Grounds — Protection of Right of Possession of Real Property.</p> <p>The right of a plaintiff who was in possession of a switch track, and the land on which it was laid, under a prima facie title, to invoke the aid of a court by injunction to protect his possession, cannot be defeated by the action of defendant in moving an engine and cars onto the track without license or lawful authority; and plaintiff was justified in removing the obstruction and restoring the property to its rightful status, using ■such force as was necessary.</p> <p>2. Same—Title to Support Suit.</p> <p>One in possession of land under a claim of title which is not merely colorable may maintain a suit for an injunction to protect his possession, in a proper case, until a superior title shall have been established in an appropriate action.</p> <p>8. Same—Repeated or Continuing Trespasses.</p> <p>An owner of. land is entitled to an injunction to restrain trespasses thereon where it is shown that a trespass has been committed by defendant, and will be continued or repeated unless restrained.</p> <p>¶ 3. See Injunction, vol. 27, Cent. Dig. § 101.</p>

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

<p>1. Salvage—Raising Sunken Tug—Compensation.</p> <p>Libelant at his own expense and risk raised a tug which had sunk in 26 feet of water in a river, the service requiring two weeks’ work night and day, and an expenditure of over $1,000. When raised, the tug was not in condition for use, and he reealked and repaired her, putting her in as good condition as before she sunk. She was in imminent danger of becoming a total loss owing to tbe quicksands and rapid current of the river, and the salvage work was ingeniously and skillfully done. After being raised she was valued at from. $4,000 to $8,000. Held, that libelant should be awarded one-fourth the proceeds of her sale as salvage compensation, besides tbe expense incurred, and next after that tbe cost of tbe repairs made, which would he considered as in the nature of a continuation of the salvage service, and entitled to rank next as a lien.</p> <p>2. Same—Salvage Services—Furnishing Material por Use in Salvage Operations.</p> <p>The mortgagee of a tug which had been wrecked and sunk in a river let to the owner two lighters “under hire expressly stipulated,” although no price was fixed, the intention being to use them in salving the tug. They were taken to the wreck and remained in the vicinity four days, but nothing was done and no plans made for raising tbe vessel. After that another undertook to raise the vessel, and did so, using one of the lighters, the other being returned. The man in charge of the lighter performed no service ex'eept as watchman. Held, that the mortgagee was not a salvor, and that his claim for the hire of his lighter was not entitled to rank as a salvage claim.</p> <p>8. Maritime Liens—Priorities—Lien por Supplies.</p> <p>Liens acquired by virtue of a state statute for supplies furnished a vessel during the year prior to her sale in admiralty are entitled to equal rank and to be paid pro rata, in the absence of any special circumstances or equities. ,</p> <p>4. Same—Waiver op Lien—Taking Mortgage to Secure Advances.</p> <p>The taking of a mortgage on a vessel to secure future .advances for supplies is not inconsistent with the claiming of a maritime lien given by statute for supplies subsequently furnished.</p> <p>¶ 1. Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.</p> <p>¶ 3. Maritime liens for supplies and services, see note to The George Dumas, 15. C. C. A. 679. Maritime liens created by state laws, see note to The Electron, 21 C. C. A. 21.</p> <p>¶ 4. Waiver and extinguishment of maritime liens, see note to The Nebraska, 17 C. C. A. 102.</p> <p>See Maritime Liens, vol. 34, Cent. Dig. § 83.</p>

<p>x. Common Carriers—Duties—Discrimination.</p> <p>By the common law a common carrier was obliged to carry for all without unjust or unreasonable discrimination either in charges or in the facilities for actual transportation.</p> <p>- 2. Same—Interstate Commerce.</p> <p>The act to regulate interstate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St.'1901, p. 3154]), in so far as it inhibits carriers from the imposition of unjust or unreasonable' rates, is an express adoption by the national legislature of the principles of the common law on this topic.</p> <p>3. Same—Special Remedies.</p> <p>The special remedies afforded by this enactment were intended to supplement, ant not to supplant, the existing remedies.</p> <p>4. Same—Jttrisdiction.</p> <p>The jurisdiction to enjoin unreasonable rates is based upon the fact that the subject-matter of the suit is a right asserted under the act of Congress.</p> <p>6. Same—Injunction.</p> <p>It has long been the practice of courts of equity to grant injunction against extortionate charges and unjust discriminations in the business of common carriage.</p> <p>6. Same—Multiplicity of Suits.</p> <p>When it appears that a large number of complainants have identical claims of right relative to the same subject-matter against a large number of defendants, public corporations, who. are alleged to be in a combination to-inflict on each and every complainant a common and simultaneous wrong, equity jurisdiction to avoid a multiplicity of suits will be maintained.</p> <p>7. Same—Injunction.</p> <p>When a controversy between the parties relative to transportation rates is pending before the Interstate Commerce Commission, and no irreparable injury seems threatened, a court of equity, in advance of the action of the commission, will not ordinarily enjoin the enforcement of such rates.</p> <p>(Syllabus by the Court)</p> <p>¶ 5. See Carriers, vol. 27, Cent. Dig. §§ 24, 27; Injunction, vol. 27, Cent. Dig. § 141.</p>

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

<p>1. Collision—Steamer and Anchored Vessel—Obstructing Channel.</p> <p>A steamship 314 feet long, which was anchored in the center of the Brewerton Channel of the Patapsco river, where it was 600 feet wide, and left there through the night, during which she swung around nearly at right angles to the channel, and was struck by a steamer attempting to pass under her stern, held in fault for unnecessarily obstructing the channel, there being safe anchorage grounds within a few miles, for keeping a negligent and insufficient anchor watch, and for failing to move up and change her position when she swung across the channel. The ' passing steamer also held in fault for going at too high speed, and without sufficient care in navigation, in view of the manifest danger in passing, and the known tendency to sheer when going close to,the side of the channel, which in fact caused, or contributed to, the collision.</p>

<p>1. Bankruptcy—Validity op Trust in Favor op Daughter.</p> <p>A father advanced a sum of money for the purchase of a lot and the building thereon of a home for his daughter and her husband, under an agreement that the husband, who took title to the lot in his own name, should convey the same to his wife. Such conveyance was not made, however, during the lifetime of the wife, who died leaving an infant daughter. It was then agreed between the grandfather and father of the child that the father should sell the property, and from the proceeds reserve the amount of the advancement, and hold the same in trust for the child, to be paid to her, with interest, when she reached the age of 21, and this agreement was carried out, the father receiving the money and executing his note therefor, with interest payable to himself as guardian for his daughter, which note he held. There were no creditors whose interests were affected, and the trust was at all times recognized by the father, and by the grandfather in making his will, by which he treated his granddaughter as having received the advancement made to her mother, and made a further bequest for her benefit to her father as trustee. Held, that a valid trust was created in favor of the daughter, although her father was not her legal guardian, and that on his bankruptcy she was entitled to share with other creditors in his estate.</p>

<p>No. 11.</p> <p>In Equity. On motion to remand to state court, and motion for a preliminary injunction.</p>

<p>In Admiralty. Suit to recover for sinking of tow.</p>

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

<p>1. Marine Insurance—Seaworthiness of Vessel—Evidence of Custom.</p> <p>On an issue as to the seaworthiness of an insured vessel for a voyage from San Francisco to Nome, the contention of defendant being that as the vessel was not sheathed she was not reasonably fitted to encounter the ice which she might be expected to meet in Behring Sea at that season, it was not error to submit to the jury for their consideration evidence that vessels generally making such voyages were not sheathed, although in fact the navigation to Nome first commenced that season, and its conditions and requirements had not been established; such fact going to the weight, and not to the relevancy or materiality, of the evidence.</p> <p>Z. Instructions—Expression of Opinion by Judge.</p> <p>It is not reversible error for the judge in a federal court to express his own opinion of the facts, if the rules of law are correctly laid down, and the jury are given to understand that they are not bound by such opinion.</p> <p>3. Marine Insurance—Action on Policy—Defenses.</p> <p>An allegation in the answer of an insurance company sued to recover for the loss of an insured vessel wrecked by floating ice encountered in Behring Sea that plaintiff sailed the vessel “into said ice knowing full well that so to do endangered the safety of said vessel” is not an allegation that the loss of the vessel was “caused by the willful act of the insured,” within the terms of Oiv. Code Cal. § 2629, which exonerates the insurer from liability for such a loss, but an allegation of negligent navigation, which under said section, as well as under the general law, constitutes no defense to liability, where, as in such case, the loss arose from a peril of the sea, which was a peril insured against.</p> <p>4 Same—Unseaworthiness—Burden of Proof.</p> <p>The burden of proving unseaworthiness as a defense to an action on a marine policy of insurance to recover for the loss of a vessel rests on the defendant.</p>

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

<p>1. Master and Servant—Injury of Switchman—Questions for Jury.</p> <p>Where plaintiff, who was foreman of a switching crew in the yards of defendant’s railroad, was injured by having his foot caught in the space between a guard rail and main rail, which was not blocked, and it was shown to have been the practice of defendant in such yards to keep the guard rails blocked, but that the blocking in this particular place had been out for some days or weeks, and it was not shown that plaintiff knew such fact, the court is not justified in taking from the jury the question of defendant’s want of ordinary care, or the question whether plaintiff, in the exercise of ordinary care, should have known of the defect, and assumed the risk therefrom.</p> <p>2. Same—Contributory Negligence.</p> <p>Plaintiff was foreman of a switching crew in railroad yards, and was engaged in distributing cars on various tracks, the movements of the engine being directed by signals from him. In attempting to uncouple a car from another, both of which were equipped with automatic couplers, with a lever and crank, operated from the side, for raising the pin, while such cars were in motion, he tried the crank on the rear car; and, it failing to raise the pin, he went between the ears and raised it with his hand, but while there caught his foot between the rails, and was run over and injured. The crank on the forward car was on the other side, and he might have used it by going around, or could have stopped the engine by a signal. ' It did not appear that the appliance was defective, but the pin was probably held by pressure while the cars were moving. Held1 that, in choosing the more dangerous method in cutting off the car, plaintiff was guilty of contributory negligence, which precluded his recovery for the injury.</p>

<p>1. Equity—Hearing on Plea and Replication—Issues.</p> <p>On a hearing on a plea, replication, and proofs, nothing is in issue except the truth of the matters pleaded; and where the proofs sustain the averments of the plea, the sufficiency of which has been previously adjudged, the result must be a dismissal of the bill.</p>

<p>1. Shipping—Carriage of Passengers—Transfer from Shore to Vessel.</p> <p>The liability of a steamship for' the safe carriage of persons whom she undertakes to convey on board from the shore in her boats as passengers is the same whether such persons had previously engaged pasr sage or were going on board for that purpose.</p> <p>2. Wrongful Death—Defenses to Action for Damages—Alaska Statute.</p> <p>In an action brought under Code Civ. Proc. Alaska, § 353, Carter’s Ann. Alaska Codes, p. 222, which provides that the personal representative of one whose death was caused by the wrongful act of another may maintain an action therefor if the deceased might have maintained an •action, had he lived, for an injury done by the same act or omission, the contributory negligence of the deceased is a defense.</p> <p>8. Contributory Negligence—Overcrowding of Boat.</p> <p>Where the officer in charge of a boat sent ashore by a steamship to bring off passengers stated to those who came into the boat that she was overloaded, and asked that some of them get out and wait until the boat could return, which they refused to do, and the boat capsized, the passengers were guilty of contributory negligence.</p> <p>¶ 2. See Death, vol. 15, Cent. Dig. § 25.</p>

<p>1. Costs—Dismissal on Plea Puis Darrein Continuance—Pleading.</p> <p>A dismissal on pleading a defense in the nature of a plea puis darrein continuance, although set up by answer in accordance with the state Code of Procedure, carries with it the right to the plaintiff to recover the costs accruing up to the time the pleading was filed.</p>

In Admiralty. Suit on marine policy of insurance. This was an action to recover upon a policy of marine insurance. The case was submitted, to the court for decision upon an agreed statement of facts, from which it appeared: The libelant was the charterer of the steamship Tacoma, then about to sail from Seattle, in the state of Washington, for Nome, in the district of Alaska, and had received on board of the steamer a cargo of merchandise for transportation between said ports.

On Motion to Remand to State Court. The writ in this case issued from the superior court for the county of Suffolk, in the state of Massachusetts, and was returnable on the 5th day of November, 1900. The plaintiff is a corporation organized under the laws of Pennsylvania. The defendants are residents and citizens of New York. On a petition to transfer the suit to this court, made by the defendants, the ease was entered here by them on November 28, 1900.

<p>1. Bankruptcy—Discharge—Specifications of Objection.</p> <p>After submission of the case to the court on evidence which fully sustains certain of the specifications of objection to a bankrupt’s discharge, an objection to the specifications for lack of verification is too late, and cannot be considered as a sufficient ground for dismissing the specifications and granting the discharge.</p>

Appeal by the importer from the decision of- the board of general appraisers affirming the assessment of duty by the collector of customs on certain merchandise imported at the port of New York.

<p>1. Customs Duties—Classification—Vaccine Virus.</p> <p>A preparation known as “Anthrax Vaccine,” or “Blackleg,” which Is used for the prevention of anthrax or blackleg, a disease of cattle, is included within paragraph 692, Free List, § 2, c. 11, Act July 24, 1897, 30 Stat. 202 (U. S. Comp. St. 1901, p. 1689), relating to “vaccine virus,” and is thereby taken out of the provision in paragraph 68, Schedule A, § 1, c. 11, Act July 24, 1897, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1631), for “medicinal preparations not specially provided for.”</p>

<p>L Customs Duties—Classification—Ground Glass.</p> <p>The provision in paragraph 100, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 157 (U. S. Comp. St. 1901, p. 1633), for “glass bottles, decanters, or other vessels or articles of glass, cut, engraved, painted, colored, stained, silvered, gilded, etched, frosted, printed in any manner or otherwise ornamented, decorated, or ground (except such grinding as is necessary for fitting stoppers),” is not limited to such articles as are-ground for purposes of ornamentation or decoration.</p> <p>2. Same—Ground-Glass Bottles.</p> <p>Glass bottles having the words “Thos. McMullen & Co.’s White Label” ground thereon by means of the process of sand-blasting are dutiable under the provision in paragraph 100, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, SO Stat. 157 (U. S. Comp. St. 1901, p. 1633), for “glass bottles, * * * ground,” and not under paragraph 99 of said act, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1633), relating to “plain * * * glass bottles.”</p>

<p>1. Customs Duties—Classification—Boiled-Off Silk Fabrics.</p> <p>Certain silk fabrics were partly boiled, so that, out of 25 per cent, of gum, 7.6 per cent, was removed. Reich, that this slight boiling is not sufficient to bring the goods within the provision in paragraph 387, Schedule L, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 186 (U. S. Comp. St. 1901, p. 1669), for silk piece goods “boiled off,” or to remove them from the provision in the same paragraph for fabrics “in the gum.”</p>

This cause comes here upon writ of error to review a judgment of the District Court, Western District of New York. Four indictments were found against the plaintiffs in error, each in two counts, charging a violation of Rev. St. U. S.'§ 5480 [U. S. Comp. St. p. 3696].

<p>Appeal from the District Court of the United States for the South-, ern District of New York.</p> <p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel for a mariñe loss insured by appellee. The libelant had shipped a cargo of hay,, grain, and feed, in bags, on the canal boat A. J. Squires, for transportation on the Harlem river to Kingsbridge. The loss occurred October 23, 1900, in the Mott Haven Canal; the boat listing, filling, and sinking while tied to the dock.</p>

<p>Appeal from the District Court of the United States fot the Eastern District of New York. •</p> <p>This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding the brigantine Carib solely in fault for a collision with the S. S. Iberia off Point Caballos, outside the harbor of Puerto Cortez, Spanish Honduras, in the evening of October 24, 1900.</p>

The Dexter Folder Company, in December, 1901, agreed in writing yith the bankrupt to sell to it a Dfexter automatic feeding machine, to be attached to a No. 101 Dexter double sixteen folder, then owned and operated by the bankrupt, guarantying the machine to do in a satisfactory manner, when in the hands of competent operators, the work for which it was designed.

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

<p>1. Patents—Action fob Royalties—Defense of Adjudged Invalidity of Patent.</p> <p>A decree dismissing a bill for infringement of a patent, filed by a licensee thereunder, where the defenses pleaded were the invalidity of the patent and noninfringement, and the decree is not based specifically on either, will not be construed as an adjudication of the invalidity of the patent, which will be conclusive to relieve the complainant from liability for further royalties under the license contract.</p> <p>'2. Res Judicata—Matters Concluded by Judgment.</p> <p>Where, in an action to recover royalties from a licensee under a patent, defendant pleaded as a defense that the contract had terminated by reason of the invalidity of the patent relied on to continue it in force, a judgment for plaintiff is conclusive between the parties upon such issue, which cannot be raised by defendant, and again litigated in a second action to recover royalties subsequently accruing.</p> <p>¶ 2. See Judgment, vol. 30, Cent. Dig. § 1133.</p>

<p>1. Patents—Infringement—Collar Ironing Machine.</p> <p>The Shaw patent, No. 608,720, for a-collar turning and ironing machine, adapted to turn and iron turn-down collars in a single operation, was not anticipated, and the machine is novel and useful, and shows patentable invention. Claim 1 construed, and held infringed by the machine of the Asher patent, No. 627,889.</p>

No. 12. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. The following are the figures referred to in the opinion;

<p>1. Patents—Infringement—Knitting Machine.</p> <p>The MeMichael & Wildman patent, No. 500,151, for an automatic rib-knitting machine, is entitled only to a narrow construction in view of the state of the prior art, and a narrow range of equivalents. As so construed, claims 1 and 2 held not infringed.</p>

<p>1. Patents—Infringement.</p> <p>Where defendant’s alleged infringing article is constructed in accordance with a later patent, there is an equal presumption of patentability in favor of each patent.</p> <p>2. Same.</p> <p>Noninterchangeability of the parts of two machines tends strongly to negative infringement.</p> <p>8. Same—Pnuematic Drilling Tools.</p> <p>The Bates patent, No. 364,081, for a pneumatic drilling tool (claim 3), is not for a pioneer invention, and is entitled to only a narrow construction, in view of the prior art. As so construed, it is not infringed by the tool of the Keller patent, No. 647,415.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. § 35.</p>

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

<p>1. Patents—Suit for Infringement—Vacation of Preliminary Injunction.</p> <p>Where a patent has been several times adjudicated, and its validity sustained by the Circuit Court of Appeals, a motion to vacate a preliminary injunction against infringement, based upon portions of the evidence taken by defendant, will not be entertained before complainant’s time to take proofs in rebuttal has expired. '</p>

In Equity. Suit to set aside testamentary conveyances on the ground of the mental incapacity of the donor, and of undue influence exerted by defendants.

In Equity. This was an application on the part of the complainants to ratify, approve, and confirm within the District of Maine the appointment by the Circuit Court for the District of New Jersey of James Smith, Jr., of New Jersey, as receiver of all the assets of the United States Shipbuilding Company.

Action for Conversion, Tried to the Court without a Jury. The correspondence between the respective parties concerning the demand made by plaintiff for the delivery of the shares of stock, referred to in the opinion of the court, is here set forth: On March 12, 1902, counsel for plaintiff addressed a letter to the defendant which reads as follows: “On the 25th day of January, 1902, a judgment and decree was rendered and entered by the * * * district court of * * * Ormsby…

<p>Action of Ejectment Tried to the Court Without a Jury.</p>

In Equity. On demurrer to bill. The portions of the complaint in this suit to which the demurrer is directed are as follows; (1) The complaint avers that the defendants are citizens and residents within the state of Nevada, and nonresidents of the state of New Jersey, “where your orator resides.” (2) That on “the 19th day of December, 1901, your orator and its predecessors in interest was, ever since has been, and now is, the owner (subject only to the paramount title of the…

In Bankruptcy. This is an appeal from the order of the referee in bankruptcy reducing the claim of Isaac Hough against the estate, as allowed, from the sum of $1,768.64 to the sum of $569.36.

In Equity. Suit to enjoin enforcement of an order of the Railroad Commission of the State of Florida fixing passenger rates on complainant’s road. On motion for preliminary injunction.

<p>Appeal by the Importers from a Decision of the Board of United States General Appraisers.</p> <p>This is an appeal by F. W. Myers & Co. from the decision of the board of United States general appraisers, holding that certain importations by the petitioners were of sea moss, and taxable at the rate of io per cent, under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 81, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1631]. See G. A. 4561.</p>

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

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

Petition by the Interstate Commerce Commission for an order requiring witnesses before it to produce certain documents and to answer certain questions.

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

<p>In Bankruptcy. On question certified by referee as commissioner.</p>

<p>Suits to Recover Internal Revenue Taxes Paid.</p>

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

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

<p>1. Bankruptcy—Trustee—Appointment—Vote op Creditors—Adjournment op Meeting.</p> <p>Bankr. Act July 1, 1898, §§ 44a, 56a, c. 541, 30 Stat. 558, 560 [IX S. Comp. St. 1901, pp. 3438, 3442], provide that the creditors shall appoint a trustee at the first meeting by a majority vote in number and amount of all whose claims have been allowed and are present. Held1, that creditors present at the meeting did not exhaust their right to select a trustee by a single ineffectual vote, but that they were entitled to a reasonable adjournment of such meeting in order that an agreement might be reached.</p> <p>2. Same.</p> <p>A request that the referee adjourn the meeting for 24 hours for such purpose was reasonable, and it was, therefore, error for him to refuse such request, and appoint a trustee of his own selection.</p>

<p>1. Federal Court—<J urisdictional Amount—Joinder of Defendants.</p> <p>Eev. St. Wis. 1898, § 2609a, authorizes the joinder of several causes of action against several insurance companies liable for a single loss under several policies. Held, that since, notwithstanding such joinder, the liability of each was separate, and not joint, the federal court had no jurisdiction of such an action where the alleged liability of each insurance company did not exceed $2,000.</p> <p>¶ 1. Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Koper, 36 C. C. A. 459.</p> <p>See Courts, vol. 13, Cent. Dig. § 891,</p>

<p>Appeal by the importers from a decision of the board of general appraisers which affirmed the decision of the collector of customs with' regard to the merchandise in question when imported at the port of New York.</p>

<p>1. Bankruptcy—Claim to Property—Evidence Considered.</p> <p>Evidence considered, and held insufficient to sustain the claim of a third person to the ownership of property sold by a receiver in bankruptcy.</p>

<p>At Law. On demurrers to both petition and answer.</p>

<p>Appeal by Douglass'_& Berry, importers, from a decision of the board of general appraisers, which affirmed the decision of the collector of customs at the port of New York in the assessment of duty on the importation in question.</p> <p>The decision of the board (In re Douglass, G. A. 4312) is as follows (Somerville, General Appraiser):</p> <p>The goods consist of damask table covers or cloths and cotton damask doilies, sometimes called “turkey doilies.” The articles are in completed forms, ready for use as table coverings or as table doilies in each case. They were assessed for duty at 45 per cent, ad valorem, under Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 322, 30 Stat. 179 (U. S. Comp. St. 1901, p. 1661), as “manufactures of cotton not specially provided for” in said act, and are claimed to be dutiable at 40 per cent, ad valorem, as “cotton table damask,” under paragraph 321 of said act (page 1661), which specially provides for such merchandise, and reads as follows:</p> <p>“321. Cotton table damask, forty per centum ad valorem; cotton duck, thirty-five per centum ad valorem.”</p> <p>We find from the testimony that the term “cotton table damask” is the trade-name to cotton damask in the piece, or cotton damask cloth, from which table covers and doilies are made, and it does not include completed articles made out of such material, and advanced by manufacture beyond the condition of mere cloth.</p> <p>The corresponding provisions in previous tariff acts are as follows:</p> <p>Act March 3, 1883, c. 121, § 1, Schedule I, 22 Stat. 506: “325. Cotton</p> <p>laces, embroideries, insertings, trimmings, lace window curtains, cotton damask, hemmed handkerchiefs, and cotton velvet, forty per centum ad valorem.” Act Oct. 1, 1890, c. 1244, § 1, Schedule I, 26 Stat. 593: “355. Cotton damask, in the piece or otherwise, and all manufactures of cotton not specially provided for in this act, forty per centum ad valorem.”</p> <p>Act Aug. 27, 1894, c. 349, § 1, Schedule I, 28 Stat. 529: “264. All manufactures of cotton, including cotton duck and cotton damask, in the piece or otherwise, not specially provided for in this act, and including cloth having india rubber as a component material, thirty-five per centum ad valorem.” The phrase used in the tariff act of 1883—“cotton damask”—was construed by the Treasury Department to include only piece goods, and -not cotton damask table covers, or doilies of the kind under consideration, and such completed articles made out of cotton damask cloth were held to be dutiable as manufactures of cotton not specially provided for, and not as cotton damask. T. D. 8600,'Dec. 30, 1887; T. D. 8698, Feb. 28, 1888. These decisions probably suggested the insertion in the cotton schedules of the tariff acts of 1890 and 1894 of the words “cotton damask in the piece or otherwise,” where such merchandise was associated with and classified as manufactures of cotton not specially provided for in said acts. Customs practice in the classification of these goods has been in accordance with these decisions for the past ten years or more. The word “table” was, no doubt, inserted before the word “damask” in the tariff act of July 24, 1897, c. 11, § 1, Schedule I, par. 321, 30 Stat.-179 [IT. S. Comp. St. 1901, p. 1661], so as to distinguish this particular kind of damask from “furniture damask,” and other kinds of damascened cotton goods. In re Bartram, G. A. 1619. We hold, accordingly, that the articles in question, though made of cotton damask, are not dutiable, as claimed, under said paragraph 321.</p>

Appeals by the importers from a decision by the Board of United States General Appraisers, which affirmed the action of the collector of customs at the port of New York in assessing duty upon the importations in question. The decision of the board (In re Schlienger et al., G. A. 4446) related to the construction of paragraph 281, Schedule G, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), which reads as follows: “281.

<p>1. Customs Duties—Classification—Zinc Dust.</p> <p>Zinc dust, an article used in dyeing, which is crude as a metal, but not as a mineral, is not included in the provision in paragraph 183, Schedule C, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat 166 [U. S. Comp. St. 1901, p. 1645], for “metallic mineral substances in a crude state, * * * not specially provided for,” but is free of duty under paragraph 482, Free List, § 2, of said act, 30 Stat. 195 [U. S. Comp. St. 1901, p. 1680], covering "articles in a crude state used in dyeing or tanning not specially provided for.”</p>

Appeal by the importers from a decision of the board of general appraisers, which affirmed the decision of the collector of customs at the port of New York in the classification for duty of the importations in question.

Appeals by Hipp, Didisheim & Bro., and Adolph Schwob, importers, from a decision (G. A. 4280) of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on the merchandise in question.

<p>1. Customs Duties—Classification— Gelatin.</p> <p>So-called “finings,” an article consisting of gelatin containing a considerable proportion of sulphurous acid or sulphite as a preservative, is dutiable as “gelatin,” under paragraph 23, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1628), and not as a manufacture of gelatin, under paragraph 450, Schedule N, § 1, c. 11, of said act, 30 Stat. 193 (U. S. Comp. St. 1901, p. 1678), or as an nnenumerated manufactured article, under section 6, c. 11, of said act, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693).</p>

<p>1. Customs Duties — Classification — Coal-Tar Preparations—CabbolinEUM.</p> <p>The article known as “earbolineum,” or “carbolineum Avenarius,” which consists of dead, oil modified by the action of chlorine gas, is dutiable under the provision in paragraph 15, Schedule A, § 1, c. 11, tariff act of July 24, 1897 (30 Stat. 152, U. S. Comp. St. 1901, p. 1627), for “preparations of coal tar, not colors or dyes and not medicinal, not specially provided for,” and is not dutiable under the provision for “chemical compounds” in paragraph 3 of said act (30 Stat. 151, U. S. Comp. St. 1901, p. 1627), or free of duty as “dead or creosote oil,” under paragraph 524 of said act (Free List, § 2, c. 11, 30 Stat. 197, U. S. Comp. St 1901, p. 16S2).</p>

<p>In Bankruptcy.</p>

<p>Appeal by F. Schulemann, an importer, from a decision of the Board of General Appraisers, which sustained the action of the collector of customs at the port of New York in the classification for duty of the importations in question. See G. A. 4120.</p>

<p>L Customs Duties—Classification—Lilt Buds.</p> <p>Lily buds, imported in condition to open In full bloom immediately upon arrival at tbeir destination in tbis country, are dutiable as '“lilies,” under .tariff act of July 24, 1897, c. 11, § 1, Schedule G, par. 251 (30 Stat. 170, U. S. Comp. St. 1901, p. 1650), and are not free of duty under paragraph 617, § 2, c. 11, of said act (30 Stat. 199, U. S. Comp. St. 1901, p. 1685), as “vegetable substances, crude or unmanufactured, not otherwise specially provided for.”</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>In Error to 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 Eastern District of Missouri.</p>

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Kentucky. Ernst Cassatt & McDougall,</p>

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

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

<p>Original. Petition for Review.</p>

<p>In Error from the District Court of the United States for the Eastern District of Tennessee.</p>

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

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

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

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

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