Volume 124 — Federal Reporter

Appeals from the District Court of the United States for the Southern District of New York. On appeal from a decree of the District Court of the Southern District of New York finding the Germanic in fault and awarding damages to libelants for loss of cargo due to the stranding of the steamer while lying at pier 45 North river, during the night of Monday, February 13, 1899.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon a writ of error to review a judgment rendered in favor of defendant by the United States Circuit Court for the Southern District of New York on a verdict of the jury in an action brought by plaintiff for damages caused by the explosion of a bomb at an exhibition of fireworks given on defendant’s grounds.</p>

<p>1. Appeal — Jurisdiction—Circuit Court of Appeals.</p> <p>An order of the Circuit Court, made on an application for leave to file a hill of review for the purpose of setting aside a decree in favor of a hank, which quashed the service of notice of the application on the ground that the bank had become defunct as a corporation, but which also denied leave to file the bill on the merits, although for the same reason, did not relate wholly to matters of jurisdiction, and an appeal therefrom lies to the Circuit Court of Appeals.</p> <p>2. Same — Matters Review able.</p> <p>Where, after an application for leave to file a bill of review had been denied, the court considered and denied on the merits a second application to file an amended bill which was tendered, such action was in effect an opening of the first order, and an appeal from the later order brings up the entire question of the right to file the bill on the merits.</p> <p>8. Corporations — Effect of Repeal of Charter — Rights Preserved by Kentucky Statutes.</p> <p>Ky. St. 1894, § 1987, relating to the chartering of corporations by the Legislature, and which provides that, “whilst privileges and franchises so granted may be changed or repealed, no amendment shall impair other rights previously vested,” is broad and general in its language, and preserves against impairment the vested rights of all persons, whether of the corporation and its members or of other persons against it; and a corporation whose charter has been repealed still exists for the purpose of being sued on obligations previously incurred, or of being brought into court hy notice in proceedings previously instituted.</p> <p>4. Bill of Review — Application for Leave to Pile — Review on Appeal.</p> <p>Leave given by the Supreme Court, after its affirmance of a decree of the Circuit Court, to apply to the latter court for leave to file a bill of review, merely lifts the bar of its own decree, and leaves the application to be determined by the Circuit Court on its merits, subject to the right of either party to have its decision reviewed on appeal by the court having jurisdiction.</p> <p>5. Same — Grounds in Federal Court — Overruling op Former Decisions by State Courts.</p> <p>A decree of the Circuit Court of the United States, based on an estoppel created by a judgment of a state court between the parties, and which has been affirmed by the Supreme Court, will not be reversed on a bill of review because the judgment creating the estoppel is subsequently reversed by the highest court of the state on appeal, where, when rendered, it was in accordance with the law of the state as declared by such court, which afterwards overruled its former decisions.</p>

<p>L Insurance — Place of Contract.</p> <p>Where an application for insurance was made, the policy was accepted, and the premium paid in Kentucky, no place of payment in case of loss being named therein, the contract was a Kentucky contract, and gov. erned by the laws of that state.</p> <p>3. Same — Avoidance of Policy — Misrepresentations.</p> <p>Subsequent to the issuance of a policy insuring plaintiff against losses generally on sales of merchandise in its business to a certain class of customers, a rider was attached by wbieb it was insured against losses on sales to a particular firm to a limited amount; the rider containing a clause, “all other terms and conditions of the said policy to remain in full force and effect.” Eeld^ that representations made in the original application as to plaintiff’s previous gross sales and losses were immaterial to the particular risk assumed by the rider, and were not incorporated into such contract by the clause quoted, which must be construed as referring only to terms and conditions which were pertinent.</p> <p>3. Same — Materiality of Representations — When Question of Law.</p> <p>Representations made in writing in an application for insurance in response to written questions, and warranted by the applicant to be true, as the basis of the contract, are thus made material by the action of the parties in so treating them; and their materiality is a matter of law, arising from the contract, to be declared by the court, and not a question for the jury.</p> <p>4. Same — Avoidance of Policy — Truthfulness of Representations.</p> <p>A warranty in an application for insurance must be literally and exactly fulfilled, but a representation is satisfied if it is substantially true; and a slight variance, which would not have influenced the action of the insurer in making the contract, will not defeat the policy.</p> <p>5. Same — Question for Jury.</p> <p>Whether a representation of fact made in an application for insurance is substantially true or substantially false is a question for the jury.</p> <p>6. Same — Estoppel.</p> <p>Defendant issued a policy insuring plaintiff against losses on sales of merchandise to customers having a commercial rating in the last published book of Dun & Co. The application called for a statement by plaintiff of its gross sales and losses each year for the five last preceding years. In an action on the policy, it was shown that the losses during that time largely exceeded the amounts stated in answer to the question; hut there was also evidence tending to show that defendant’s agent stated to plaintiff that the question called for a statement of the losses only on sales to customers having the commercial rating, which was the class to be insured, and that such agent himself ascertained the amounts from plaintiff’s books, and wrote the answers, which were substantially correct as to such losses. Under the state statute, the answers were representations, and not warranties. Eeld, that if plaintiff, in signing the application, acted upon the construction placed by the agent on the question, which was a question for the jury, defendant was estopped to claim that the policy was avoided by the misrepresentation.</p>

. Petition for Leave to File Bill of Review in the Circuit Court of the United States for the Eastern District of Tennessee. This is a petition for leave to file a bill of review in the Circuit Court for the Eastern District of Tennessee in the case of Alger v. Keith, which was before this court some time ago, and is reported in 44 C. C. A. 371, 105 Fed. 105.

<p>1. Aliens — Contract Labor Law — Advertisement Promising Employment.</p> <p>An advertisement, in an English newspaper: “Wanted — First-class weavers, on fine combed work. * * * First-class weavers can earn per week 35s. to £2. * * * Baltic Mills Company, * * * Baltic, Conn., U. S. A.” — is within Act March 3, 1891, c. 551, § 3, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1295], amending the Alien Contract Labor Law (Act Feb. 26, 1885, c. 164) § 1, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290], and making it penal to “assist-or encourage” migration of aliens “by promise of employment through advertisements” published in a foreign country, provided this shall not apply to states advertising the inducements they offer for immigration to such states.</p> <p>Coxe, Circuit Judge, dissenting.</p>

<p>1. Jurors — Bias.</p> <p>Where, in an action for loss of cotton destroyed by fire, it was claimed at the opening of the trial that it might appear that the real party in interest was an insurance company, it was not error for the court to excuse a juror for bias on his statement that he could not act impartially as against an insurance company.</p> <p>2. Same — Prejudice.</p> <p>Error, if any, in excusing a juror for bias, was not prejudicial to plaintiffs, where it was not contended that the jury impaneled was not fair and impartial.</p> <p>3. Same — Evidence—Statements of Servants — Hearsay.</p> <p>In an action for the value of cotton destroyed by fire alleged to have resulted from defendant’s negligence while the cotton was in its possession, statements made by defendant’s servants, employed to guard the premises, as to the cause of the fire, after it had occurred and their duties had been terminated, were not admissible as res gestee.</p> <p>4. Witnesses — Cross-Examination.</p> <p>Where a railroad engineer, in an action for loss of property alleged to have been fired by defendant’s switch engine, on his direct examination testified that the engine alleged to have set the fire was in good condition, and provided with an arrester which made the emission of sparks impossible, questions on cross-examination as to how many times he had been to New York to testify what, in his judgment, was the standard among engineers for the best construction of locomotives, what route he took in traveling from New Orleans to New York, and whether he had noticed at night any sparks from the locomotive that was pulling his train, were irrelevant and immaterial.</p> <p>5. Trial — Reception of Evidence — Rebuttal.</p> <p>In an action to recover the value of property destroyed by fire alleged to have been set by defendant’s engineer, evidence that on the night of the fire the water hydrants were blocked, and the hose would not operate, was a part of plaintiff’s main case, and inadmissible in rebuttal.</p> <p>6. Same — Failure to Call Witnesses — Unfavorable' Inference — Instructions.</p> <p>At the time of the trial of an action for loss of property alleged to have been destroyed by fire set by defendant’s engine, one of several watchmen employed by defendant through a detective agency to guard the premises was dead, but his testimony had been previously taken, and. was accessible to both parties. Two other watchmen were present in court, but the whereabouts of the fourth was not accounted for. HeldI, that an instruction, under such circumstances, that to withhold testimony which it was in the power of a party to produce in order to rebut a charge against it, where it was not supported by other equivalent testimony, may be as fatal as positive testimony in support of the charge, was sufficiently favorable to plaintiff, and it was not error to refuse to charge that defendant’s failure to call the watchmen as witnesses raised a presumption that their testimony would have been unfavorable to defendant.</p> <p>7. Same — Instructions after Submission of Cause.</p> <p>Where, in an action for negligence, the jury, after submission of the cause, asked whether the judge charged that, even if they found there was negligence on the part of the defendant, they must find for the defendant, unless that negligence caused the loss of the property sued for, it was not error for the court to answer, “Yes, the court so charged,” and to refuse a request by plaintiff’s counsel that, if the jury found there was negligence, they must find a verdict for plaintiff, unless they found that the negligence did not cause the loss.</p>

<p>Appeal from the District Court" of the United States for the Southern District of New York.</p> <p>In Admiralty. Appeal from a decree (119 Fed. 226) dismissing a libel against the charterer for loss of libelant’s yacht.</p>

<p>1. Insurance — Cancellation of Policy.</p> <p>Where, by the terms of a policy, the insurer was given the right to cancel the same by giving five days’ notice, a telegram from its agent to the authorized agent of the insured positively directing a cancellation, followed by a letter confirming the same in unequivocal language, operated as a cancellation at the end of five days thereafter, during which no further communication was sent; and subsequent correspondence, by which the agent of the insured attempted to secure a reconsideration of such action, did not have the effect of renewing the policy.</p> <p>2. Same — Effectiveness of Notice — Return of Premium.</p> <p>Under a provision in an insurance policy giving the insurer the right to cancel the same by giving five days’ notice, and requiring it to return the unearned premium in case of cancellation “on surrender of the policy,” it is not essential to the effectiveness of a notice of cancellation by the insurer that the unearned premium be returned or tendered in advance of the surrender of the policy by the insured.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Appeal by libélants from a decree of the District Court for the Southern District of New York dismissing libel for damages to cargo of wheat while being carried by the steamship Hyades from Galveston to New York, in September, 1900. The negligence charged against the vessel is her .failure to provide suitable hatch coverings >for the voyage. Decision below is reported in 118 Fed. 85.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from decision of the Circuit Court affirming a decision of the board of general appraisers which affirmed a classification of certain imported merchandise as made by the collector.</p>

<p>1. Corporations — Insolvency—Receivers—Action by Stockholder — Marshaling Assets — Parties.</p> <p>Where a hank to which an insolvent corporation was indebted was not a party to an action by a stockholder for the administration of the corporation’s assets, it was error for the court to direct the bank to pay over to the receiver of the corporation the amount of the corporation’s deposits with the bank pending a determination of the bank’s rights to set off such deposit against the corporation’s debt.</p> <p>2. Same — Right op Set-Opp.</p> <p>Where, at the time of the appointment of a receiver for a corporation, it was indebted to a bank in a sum largely exceeding the amount of the corporation’s deposit, the bank was entitled to set off such deposit against the corporation’s indebtedness to it.</p>

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

<p>Appeal from the District Court of the United States for the WesU ern District of Arkansas.</p> <p>This is an appeal from the decree of the District Court sitting in bankruptcy, which dismissed a petition of the appellants, George Webber, trustee of the Mammoth Pine Lumber Company, the bankrupt, and the South Texas National Bank, a creditor of the bankrupt, to review the allowance of the .claim of the trustee and executors of the estate of M. T. Jones for the payment to them of a share of the proceeds of the sale of certain lands of the bankrupt upon which they held vendor’s and mortgage liens. The trustee and the executors of the estate of Jones did not present or. prove their claim against the estate of the bankrupt, but they filed an intervening petition setting up their claim to the proceeds of the sale of the lands upon which they held the vendor’s and mortgage liens. This intervening petition was filed in the proceeding in bankruptcy against the Mammoth Pine Lumber Company on July 20, 1001. The claim which it presented was duly allowed after notice to the creditors and the trustee, and it was paid by the trustee on October 29, 1901. On August 21, 1902, the appellants appeared and filed a petition to review the allowance of this claim. The court denied and dismissed their petition on November 19, 1902, and on that day they prayed and were allowed an appeal to this court. On November 26, 1902, they filed the only assignment of errors which appears in the case.</p>

<p>1. Patents — Invention—Paper Tubes.</p> <p>The Hurlbut patent, No. 441,846, for tubes especially intended to cover paper tubes, is void, for lack of patentable invention, in view of the prior art</p>

<p>1. Patents — Infringement—Equivalents.</p> <p>A patentee is not to be denied tbe benefit of the doctrine of equivalents, to the extent necessary to protect his actual invention, although it may be a narrow one.</p> <p>2. Same — Claim for Combination.</p> <p>In a claim of a patent for a combination, all the elements which the patentee has specified must be regarded as material, and infringement cannot be found in a device in which one of such elements is omitted, unless an equivalent part is employed.</p> <p>8. Same — Omission of Parts — Quill-Grinding Machine.</p> <p>The Levy patent, No. 664,564, for a quill-grinding machine, claim 1, held valid, but not infringed by a machine which, while substantially the same in all other respects, omits the “means for adjusting the tension of the said spring,” which is made an element of the claim, and employs no equivalent therefor.</p>

<p>In Equity. Suit for infringement of letters patent No. 462,065, for a numbering machine, granted to Willard W. Sawyer, October 27, 1891. On final hearing.</p>

<p>1. Patents — Suit for Infringement — Measure of Proof.</p> <p>In a suit against the vendor of an article for infringement, the evidence should be convincing.</p> <p>3. Same — Infringement—Stair Pad.</p> <p>The Marcus & Collins patent, No. 541,244, for a stair pad, held valid, but the evidence held insufficient to show that articles sold, but not manufactured, by defendant were infringements.</p>

<p>In Bankruptcy. On demurrers to petitions in involuntary bankruptcy and motions to dismiss the same.</p>

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

<p>1. Shipping — Liability op Vessel to Cargo — Breach op Contract Made by Charterer under Authority prom Owner.</p> <p>When the owner of a vessel authorizes another, whether he be called a charterer or agent, to engage her cargoes to be carried for hire, what the owner promises the ship shall do in carrying such cargoes that it becomes the ship’s duty to do, and it is immaterial, so far as relates to the ship’s liability to the cargo for a breach of such duty, that it was imposed by contract rather than by the law.</p> <p>& Same — Kule Applied — Lien of Subcharterer.</p> <p>The owners in a charter party warranted that the vessel would steam 12 knots, average speed, per hour, under given conditions. The charterer in an authorized subcharter, made with the. owners’ knowledge and acquiescence, repeated the warranty. Oargoes of fruit shipped by the subeharterer were injured by decay .and depreciation of market value through the failure of the vessel to make the warranted speed. The owners at all times operated the vessel. Held, that the subeharterer had a lien on the vessel for the damage sustained.</p>

<p>1. Customs Duties — Rule of Classification — Chief Use.</p> <p>Where a tariff enumeration is descriptive of the use of imported merchandise, the chief or predominant use of an article should control in determining whether or not it comes within that enumeration.</p> <p>2. Same — Classification—Coal-Tar Preparations — Lysol.</p> <p>Lysol, a liquid substance in which coal tar is the origin of the elements that give it its determining characteristic, the chief use of the article being otherwise than as a medicine, though used as such to a limited and comparatively insignificant extent, is dutiable under the provision in paragraph 15, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1627), for “preparations of coal tar, * * * not medicinal,” and not under paragraph 3, Schedule A, § 1, c. 11, of said act, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1627), covering “chemical compounds.”</p>

<p>1. Customs Duties — Classification—Soluble Creosote — Coal-Tab Preparations.</p> <p>Soluble creosote, an article prepared from coal-tar dead oil, is less specifically provided for as a “chemical compound” than under a provision for “products or preparations of coal tar,” and is properly classified for duty under the latter head, in paragraph 443, Free List, § 2, c. 349, Tariff Act Aug. 27, 1894, 28 Stat. 539, or paragraph 15, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1627).</p>

<p>1. Death of Servant — Negligence—Bill of Particulars — Examination before Trial.</p> <p>Where, in an action for the death of plaintiff’s intestate, the complaint contained only general and indefinite charges of acts and omissions alleged to be negligent, and on a demand for bill of particulars plaintiff answered that she had no actual information as to the several allegations in her complaint, but averred the same from the fact that there was a collision between defendant’s trains, and that it was inferable from such collision that the causes alleged contributed thereto, and that the information desired was within the personal knowledge of defendant, which plaintiff had no means of obtaining, held, that the plaintiff, upon defendant’s consent, should obtain the information pursuant to sections 870, 871 et seq., of the Code of Civil Procedure, and thereupon make her complaint more definite and certain or serve a proper bill of particulars.</p>

<p>1. Marine Insurance — Expenses Arising prom Stranding — Law Governing Apportionment.</p> <p>A valued English insurance policy on a ship contained a provision that “general average, salvage and special charges, as per foreign custom, payable according to foreign statements, or * * * per rules of port of discharge, * * * at the option of assured.” Held\ that under such provision the law of New York, the port of discharge, governed as to the amount payable by the insurer on account of salvage and other expenses arising from stranding; and statements of the adjusters there fixing the amount of the loss and distributing the same to the several policies, in accordance with the law of the port, which requires the insurer to pay in the ratio of the loss to the stipulated or policy value of the vessel, instead of in the ratio of the loss to the actual value, as by the English law, were conclusive on the insurer.</p>

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

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

<p>1. Shipping — Liability of Ship for Injury of Seaman — Negligence.</p> <p>Libelant, a seaman, after being asbore on Ms own business in the evening when the ship was in port, returning about 11 o’clock, while passing in the dark over some coal which had been stowed in a passageway on deck of which he had knowledge, was injured by the slipping of the coal under his feet, which caused him to fall. EeM, that the ship was not liable for the injury, being under no duty to keep the deck lighted at that hour of the night for the benefit of members of the crew who were not on duty.</p>

<p>1. Shipping — Limitation op Liability — Waiver op Right by Litigation in State Courts.</p> <p>A shipowner, by defending an action brought against him in a state court to recover damages for injury to a passenger, and by appealing from the judgment rendered against him therein, does not waive his right to petition a court of admiralty for á limitation of liability; nor is he debarred of the right to invoke such remedy because there is but a single claimant.</p> <p>2. Same — Extent op Limitation — Judgment por Injury to Passenger.</p> <p>Where a passenger injured through the negligence of those engaged in the navigation of a tug and barge, without the privity of the owner, recovered judgment therefor and for costs against such owner in the state courts, the owner is entitled to a limitation of his liability to the value of the two vessels and pending freight, with interest thereon from the time of the injury to the time of payment, as against the judgment for damages, but he cannot limit his liability for the costs taxed against him in the litigation in the state courts.</p>

<p>1. Shipping — Negligent Navigation — Damage Caused by Swell pbom Passing Vessel.</p> <p>The St. Paul, a large ocean steamship, with a displacement of some 13,000 tons, when approaching New York Harbor, met and passed a tug having two scows in tow on a hawser, and her swell caused the rear scow to dump her deck load of building stone. She passed the tows at a distance of 150 to 200 feet, and her half speed of 12 knots was slowed; and, according to the testimony of the captain and pilot, her engines were stopped when about opposite the tug, but such testimony was contradicted, and the fact was not established. Held, that as such testimony showed that, in the judgment of her officers, it was practicable and proper for her to stop her engines, the fact that she did not do so rendered her in fault, and liable for the damage caused; no fault being shown on the part of the tug.</p>

Appeal by the importer, Joseph Sibbel, from the decision (G. A. 4520) of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York. The question at issue is whether a certain sculptured marble figure is “statuary,” within the meaning of that term as defined in paragraph 454, Schedule N, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 194 (U. S. Comp.

<p>1. Customs Duties — Invoice Value — Clerical Error.</p> <p>The importers of certain sugar in hogsheads made entry on an invoice which included by mistake the value of the hogsheads in that of the sugar, but before the entry was liquidated they produced a corrected invoice, showing the proper deduction for the hogsheads. Reid, that it was not, under the circumstances, necessary for the importers to make entry on a pro forma invoice, and give a bond for the production of a corrected invoice, in the method prescribed in section 4, customs administrative act of June 10, 1890, 26 Stat. 131 (U. S. Comp. St. 1901, p. 1888), and that the collector should have made allowance for the hogsheads.</p>

Appeal by the United States from a decision of the Board of General Appraisers reversing the decision of the collector of customs in the assessment of duty on certain merchandise imported into the port of: New York by R. F. Downing & Co. The merchandise consists of canned turtle meat, which the collector held' to be dutiable, and which the importers contend is free of duty under the-provision in Tariff Act Aug. 27,. 1894, c. 349, § 2, Free List, par. 568, 28 Stat. 542, for…

<p>In Admiralty. Libel to recover for personal injuries.</p>

<p>1. Shipping — Liability for Injury of Seaman — Unsafe Place to Wore.</p> <p>A ship cannot be held, liable for the injury of seamen who were sent into the fore peak to paint it with asphalt paint, using a lamp, caused by an explosion, where the evidence shows that the paint is not explosive and is commonly used to paint inclosed places, and that the men usually work with exposed candles or torches; there being no explanation of the accident unless it was caused by one of the men setting the paint on fire with the lamp.</p>

<p>1. Bankruptcy — Claims—Landlord and Tenant — Breach op Lease — Covenants.</p> <p>A lessor is not entitled to prove a claim for damages against the lessee’s estate in bankruptcy for breach of a covenant by the lessee that on the latter’s bankruptcy the lessor might terminate the lease and reenter, and that the lessee should be liable for all loss and damage sustained by .the lessor on account of the premises remaining unleased or being let for the remainder of the term for a less rent than that reserved in the lease.</p>

<p>1. Shipping — Injury of Stevedores — Liability of Ship.</p> <p>Stevedores held entitled to recover damages from the ship for personal injuries resulting from the disobedience of orders or negligence of the winchmen, who were furnished by the ship, in discharging a cargo of logs.</p>

The plaintiff, Viola Cole, sued the German Savings & Loan Society for damages which she alleged were the result of its negligence in the care and operation of its elevator, and at the close of the trial these facts were established: About 4 o’clock in the afternoon of a bright sunshiny day in May, the plaintiff, a lady 32 years of age, entered the hall of a building of the German Savings & Loan Society for the purpose of riding on an elevator to an upper story.

<p>1. Mandamus against Municipalities — Execution.</p> <p>The writ of mandamus to enforce the collection of judgments of the national courts against municipalities is the legal substitute for a writ of execution to enforce judgments against private parties, and the rights of their judgment creditors to their respective writs are equally inviolable.</p> <p>2, Officers — Duty to Exercise Powers Granted.</p> <p>The law imposes upon public officers the duty to do for the benefit of private citizens whatever it invests them with the power to perform on their behalf, whenever public interest or individual rights call for the performance of that duty.</p> <p>8. Mandamus — Levy of Tax — Previous Demand Unnecessary.</p> <p>No demand upon the officers of a municipality to levy a tax is necessary before instituting proceedings for mandamus, where the statute imposes upon them the duty to levy it, or where that duty, under the law, is plain, or where it is manifest that such a demand would be an idle ceremony.</p> <p>4. Same — Tax—Demand of Payment Sufficient Demand to Make Levy.</p> <p>A demand upon the officers of a municipality of payment of a judgment ■ or claim against it is a sufficient demand upon them to levy a tax to-pay it, where the statute or the general law authorizes them to make provision for its payment by such a levy.</p> <p>5. Municipal Corporations — Power to Levy Tax to Pay Bonds.</p> <p>The power of the officers of a municipality to levy sufficient general taxes to pay the bonds of their city is a legal inference from the authority to issue the bonds, in the absence of any constitutional or statutory limitation or inhibition of this power.</p> <p>6. Mandamus — Judgment against Municipality on Bonds.</p> <p>Statutes conferring powers and imposing duties upon municipal officers to levy taxes to pay judgments against their cities supersede statutes and their limitations conferring less extensive powers and duties upon such officers to levy taxes to pay bonds when the bonds have become' merged in final judgments. Thenceforth the statutes authorizing taxes to pay judgments become the measure of the authority of the officers.</p> <p>7. Municipal Bonds — Local Improvements in Nebraska — General Liability of Cities.</p> <p>District bonds of a city, issued to pay for internal improvements under subdivision 58, § 52, art. 2, c. 14, Comp. St. Neb. 1887 (section 1282c, subd. 55, Comp. St. 1901), which contain no stipulation limiting the recourse of their holders to the special taxes levied for such improvements,, create a general liability of the city issuing them; and their officers are authorized and required to levy and collect taxes upon all the taxable-property within the limits of the city, under subdivisions 1, 2, and 19-of section 1282c, Comp. St. Neb. 1901, to pay the bonded indebtedness which they evidence.</p> <p>8. Same — Judgments—Officers must Levy General Taxes to Pay.</p> <p>When a judgment has been rendered against a city on such bonds, the power is granted to its officers, and the duty is imposed upon them, by sections 4488-4491, Comp. St. Neb. 1901, to levy and collect taxes upon all the taxable property in the city to pay it</p> <p>8. Pleading — Declaration—Facts Limiting Liability.</p> <p>Facts which limit a general liability imposed by statute or by law constitute matter of defense. It is not incumbent on a plaintiff to negative their existence either by pleading or by proof.</p> <p>(Syllabus by the Court.)</p>

On October 18, 1902, Edwin F. Brown, the receiver of the First National Bank of Little Rock, Ark., under the national banking act, filed his petition in the Circuit Court for the Eastern District of Arkansas, in which he prayed for an order of that court directing him to accept a bid of $25 made by A. W. Files, the appellant, for a judgment of $9,230.09 against J. G. Kelso, which was one of the assets of the bank, and commanding him to make the sale of and to assign the…

On September 15, 1899, the plaintiff below, W. L. De Clow, was riding as a passenger in the caboose of a freight train of the Chicago & Northwestern Railway Company, which was transporting some horses for him. when the train was so suddenly stopped that he was thrown against the corner of the conductor’s desk, and his right kidney was so seriously injured that he continued to suffer.from the accident until the trial of the action, more than two years later.

<p>1. Appeal — Right to Allege Error — Estoppel.</p> <p>■Where, in an action for injuries to a servant in a mine, defendant permitted him to testify, without objection, on both direct and cross-examination, that defendant had promised to fix the stope in which he was injured by alleged insufficient timbering, it could not object on appeal to a statement on re-examination that on the day preceding the accident he had called the attention of the shift boss to the fact that certain timbers in the stope were “riding or taking weight,” and that the boss promised that he would have “the doubling up man come up and fix it.”</p> <p>2. Master and Servant — Injuries to Miner — Insufficient Timbering — Evidence.</p> <p>Some time prior to the accident the timbers in a mine stope in which plaintiff, a miner, was injured by caving, showed evidence that they were bearing an excessive weight and might give way. When that stope was combined with another the result had been to leave an extensive overhanging wall, which pitched at an angle of 45 deg., supported only by square sets and by a pillar of decomposed sulphide ore. Such supports were insufficient, and about a week prior to the accident the pressure on the pillar of ore was so great that it had bulged and pushed out of place a number of poles standing at its base, and the hanging wall in the other stopes of the same mine had previously caved in. Heidi, that whether defendant had exercised reasonable care in timbering the stope in which plaintiff was injured was a question for the jury.</p> <p>8. Same — Action—Instructions—Safe Place to Work.</p> <p>Where plaintiff, a miner, was injured by the falling of a wall in the mine in a completed chamber, alleged to have resulted from insufficient timbering, and it did not appear that at the time plaintiff was doing any work which would render the place insecure, an instruction that defendant was not bound to keep the stope where plaintiff was working continuously safe, on the theory that the master is not required to keep the place where a servant works at all times safe, where the doing of the work is of such a character as temporarily renders the place insecure, was properly refused as inapplicable.</p> <p>■i. Same — Res Ipsa Loquitor.</p> <p>Where the court charged that plaintiff could not complain or recover because of defendant’s negligence in failing to properly secure any other part of the mine than that in which plaintiff was injured as alleged, and that defendant was not an insurer of plaintiff’s safety, but was merely bound to exercise ordinary care for plaintiff’s safety under the circumstances, it was not error for the court to refuse to specifically charge that the happening of the accident, of itself, was not evidence of negligence.</p> <p>8. Same — Promise to Repair Defect — Reliance by Servant.</p> <p>Where evidence tended to show that the shift boss of a mine, on being notified that certain of the timbers in the stope in which plaintiff was injured were taking weight, not only promised to erect additional supports, but assured plaintiff that it was perfectly safe for him to remain there and continue his work, such evidence justified an instruction that if plaintiff called the attention of the shift boss to the fact that some of the posts were taking weight, and that the boss promised to remedy the defect, and plaintiff continued to work because of such promise, he did not assume the risk from such defect.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

The opinion of the Circuit Court, delivered orally by Hallett, District Judge, was as follows: In the pending suit of the government against the Denver & Rio Grande Railroad Company et al., I have reached the conclusion that the injunction ought to be allowed. I do not doubt that the respondent has in some measure and degree exceeded the authority conferred upon it by the acts of Congress under which it has acted.

the United States for the District of South Carolina, in Bankruptcy. This case comes up on appeal from the District Court of the United States for the district of South Carolina, sitting in bankruptcy. J. D. Jones and J. W. Duff were copartners in a general business of merchandising at Blacks-burg, S. C., under the firm name of Jones & Duff.

<p>1. Appeal — Practice—Party Not Aggrieved.</p> <p>One who secures by a judgment or decree all the relief he seeks cannot maintain a writ of error or an appeal to reverse or modify it or to review the proceedings on which it is founded.</p> <p>2. Cross-Errors Not Cognizable in Federal Appellate Courts.</p> <p>A defendant in error or appellee who does not sue out a writ of error or take an appeal cannot by assigning cross-errors confer jurisdiction upon a national appellate court to hear or determine any questions not otherwise presented. Cross-errors are not assignable in the federal courts.</p> <p>8. Same — After Reversal by Appellate Court Defeated Party may Review Issues Not Cognizable on First Appeal.</p> <p>After a reversal by an appellate court of a judgment or decree in his favor a defendant in error or appellee may maintain a writ of error or an appeal to review the questions of law arising at the trial in the court below, which were not, and could not have been, litigated upon the first writ or appeal, and to reverse, on account of the errors in the determination of those questions, the judgment or decree directed by the appellate court.</p> <p>4 Same — Facts.</p> <p>The Circuit Court rendered a judgment in favor of the defendant upon a general verdict and special findings of fact. The plaintiff brought a writ of error to reverse the judgment, on the ground that upon the verdict and findings the judgment should have been in its favor. The appellate court reversed the judgment, and on its mandate the Circuit Court rendered a judgment for the plaintiff. The defendant then sued out a writ of error to reverse this judgment on the ground that the rulings of the court upon the trial were erroneous. Held!, the writ was maintainable, because the defendant could not have maintained a writ to challenge the former judgment in its favor, and it could not have assigned the rulings of which it complained as cross-errors under the first writ.</p> <p>6. Same — Law of the Case.</p> <p>Legal propositions once considered and decided in a given ease by the appellate court cannot be again questioned in that court on a subsequent writ or appeal in the same case, whether they are right or wrong. They are res judicata between the parties to that suit and their privies, and constitute the law of the case.</p> <p>6. Evidence — Admissions of Principal — Conolusivenbss as to Surety.</p> <p>The admission of a servant, the principal in an employé’s bond, with respect to matters pertaining to the performance of his guarantied duties, made while he is engaged in their discharge, is competent evidence against the surety on his bond.</p> <p>7. Same — General Objections — Sufficiency.</p> <p>The general objections that offered testimony is incompetent and immaterial are sufficient where the ground of the objections is discernible. But they are futile to present a ground of objection that is not perceptible without a statement of it. In a case of the latter class they conceal rather than present the real objection, and hence form no basis for a reversal.</p> <p>8. Same — Review of Peremptory Instruction.</p> <p>A ruling granting or refusing a peremptory Instruction to the jury at the close of the evidence cannot be reviewed in an appellate court In the absence of a bill of exceptions which contains all the evidence which conditioned the ruling.</p> <p>{Syllabus by the Court)</p>

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

<p>1. Bankruptcy — Jurisdiction of District Courts and Circuit Courts — Controversies over Property Held by Adverse Claimants.</p> <p>The District Court sitting in bankruptcy has no jurisdiction over a controversy between trustees in bankruptcy and an adverse claimant relating to the title or possession of property in the custody of the latter, in the absence of his consent, but such an issue is a controversy at law or in equity, as distinguished from a proceeding in bankruptcy, within the meaning of section 23 of the bankrupt act of July 1, 1898, e. 541, 30 Stat. 552, 553 [U. S. Comp. St. 1901, p. 3431].</p> <p>2. Same — District Court —Jurisdiction —Controversy over Property Seized.</p> <p>The District Court has jurisdiction of such a controversy in a case in which it finds it absolutely necessary for the preservation of the estate to take the possession of the property from the adverse claimant by means of its receiver or the marshal, under clause 3 of section 2 (Act July 1, 1898, c. 541, 30 Stat. 545, 546 [U. S. Comp. St. 1901, p. 3421]), and such a seizure and the determination of the issue thus raised between the trustee and the adverse claimant is a proceeding in bankruptcy as distinguished from a controversy at law or in equity, within the true interpretation of section 23 of the act (30 Stat. 552, 553 [U. S. Comp. St. 1901, p. 3431]).</p> <p>3. Same — District Court — Jurisdiction—Controversies as to Property in .Its Custody.</p> <p>The District Court sitting in bankruptcy has jurisdiction to determine, after a reasonable notice to the claimants to present their claims to it, the claims of all parties to property and to the proceeds of property which its officers have lawfully reduced to their possession in the course of the administration of the estate of the bankrupt, and controversies between trustees in bankruptcy and adverse claimants to property which has in that way reached the custody of the District Court are not controversies at law or in equity, as distinguished from proceedings in bankruptcy, within the proper construction of section 23 of the bankrupt act of July 1,1898, c. 541, 30 Stat. 552, 553 [U. S. Comp. St 1901, p. 3431].</p> <p>i- Same — Jurisdiction of Referee.</p> <p>A referee in bankruptcy has jurisdiction to draw to himself by summary process or notice, and in the first instance to determine, the question of the validity of the claim of a third party to a lien upon, or an interest in, property or the proceeds of property lawfully in the custody of a trustee in bankruptcy.</p> <p>3. Bankruptcy — Equity Jurisprudence.</p> <p>The administration and distribution of the property of bankrupts is a proceeding in equity, and when authorized by act of Congress it becomes a branch of equity jurisprudence.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Admiralty. Libel in personam.</p> <p>Appeal from a decree of the District Court for the Southern District of New York, entered February 20, 1903, for $3,713.55, in favor of the libelant for damages to cargo of sugar laden on the respondent’s steamer Albion, in August, 1900. The libelant alleges that the damage was occasioned by the failure of the respondent to use due diligence to make the vessel seaworthy before sailing. The essential facts are fully stated in the opinion of the court below.</p> <p>The testimony of respondent was taken at Newcastle-on-Tyne, the parties-being represented by members of the English bar who seem to have been unfamiliar with the provisions of the Harter act. The consequence is that the record is vague and indeterminate. Much testimony which seemingly could have been adduced has been Ymitted, and other testimony has been returned which has little relevancy to the points in controversy.</p> <p>The damage was occasioned by seawater admitted through the manhole door of ballast tank No. 4, which was directly under hold No. 3, where the sugar was stowed. The ship’s carpenter, who made the manhole joint, which gave way and caused the damage, testified that he made a good, tight joint at Java three weeks before loading and sailing and within that time it was tested on several occasions by filling the tank. He says: “The condition of the manhole door before the cargo was loaded at Java was good and the joints were perfectly tight I made it myself. * * * It was after we reached Soerabaya that I made this manhole joint. Whilst we were lying there the ship was being painted and the after ballast tanks run in and pumped out and the fore tanks similarly vice versa for tipping the ship to paint. During the whole of that time there was no leakage from that manhole door. * * * At-the time when the cargo was loaded the vessel was a little by the head and had a list to port. I know that something was done to correct the trim by filling No. 3 and No. 4 tanks.”</p> <p>Tank No. 4 was filled with seawater after the voyage was begun. Through the negligence of the engineers the valve was left open from about 8 o’clock in the morning until about 3:30 in the afternoon. Two hours were sufficient to fill the tank. During several hours after the tank was filled the manhole joint was, therefore, subjected to the pressure of the sea. In speaking of this the carpenter says: “If the sea cocks were not closed when the tank was closed the result would be a great strain on the top of the tank, which would very likely cause the manhole packing to give out. By a great strain I mean hydraulic pressure from the sea bearing on the top of the tank.”</p> <p>In his opinion no other cause except this pressure can be assigned for the subsequent blowing out of the packing of the manhole joint.</p> <p>The manhole door “is held in position by dogs on the top side of the tank and bolts through the dog and through the door and nuts on the upper end of the bolts, and where the flange or edge of the manhole door bears upon the tank top, it is packed by white lead and spun yarn.” There is some testimony that this work belongs to the engineer’s department, and should have been undertaken by one of the engineers, but it is by no means satisfactory, the custom differing on different ships. The making of the joint was not a matter of much difficulty and was entirely within the capacity of the carpenter or any mechanic of ordinary intelligence.</p> <p>The chief engineer and third engineer of the Albion were also examined. They knew nothing regarding the joint made by the carpenter. They testified that after leaving Java the tank was run up and the sea cocks were open until 3:30 p. m.; that the manhole door must have had the full pressure of the sea for several hours, and that this pressure, “which must be enormous,” would account for the leaking of even a good joint. The third engineer says: “I agree with the carpenter that it must have been a tremendous pressure of the sea outside that burst the packing. The joint must have given way by the great pressure.” The chief engineer testifies that “the excessive pressure on the tank by leaving the sea cock open after the tank was full was bound to start the manhole. * * * I admit that the fault here was the sea cock not being closed, thus causing excessive pressure on the manhole of the tank. * * * I adopt the position that this water in the hold and damage to the cargo resulted from the want of attention of the officers of the ship.” He also testifies: “At Java we ran up the tanks several times, but not knowing when the manhole door was made, it is difficult for me to say when it would burst. It is perfectly clear that it did not burst in Java but in leaving. It is perfectly clear that it did not burst when the ship took in cargo or we would have seen it.”</p> <p>The only oral evidence offered by libelant was the testimony of two experts who say, in substance, that if the manhole joint had been properly packed no amount of pressure by leaving the sea cock open could have blown out the joint. Conceding that it is improper to leave the pressure of the sea Dn the top of a tank for several hours after a ballast tank is fiiled, it is their opinion that this would produce no effect upon a manhole joint if it were perfect, and the fact that the packing blows out warrants the inference that the joint is unsound.</p>

<p>1. Collision — Tug with Tows and Steamship Meeting — Change of Signal.</p> <p>Evidence considered, and held to sustain a finding of the trial court that a' tug which was passing up the Delaware river in the evening, with three tows abreast, was solely in fault for a collision with a steamship passing down, on the ground that after an exchange of proper signals for passing to the starboard she suddenly changed her signal and course, and attempted to pass on the starboard side of the steamship, when the vessels were so near together that the latter could not avoid the collision, although she did all that was possible to that end by at once giving alarm signals and reversing. .</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 Western District of New York.</p> <p>This cause comes here upon appeal from a final decree of the Circuit Court, Western District of New York, which adjudged that defendants pay to complainant $2,173.26, as gains, profits, and advantages fraudulently diverted from complainant to defendants, together with master’s fee and costs. The facts are set forth in the opinion.</p>

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

The bill in this case states-that on the 25th day of April, 1893, the complainant was the owner of the tug Sea Gull, and, as such owner, made application to the defendant for insurance against loss by fire for one year, and that the defendant wrote a Michigan standard policy on the tug for $4,000, a copy of which is annexed to the bill of complaint, but by mistake of defendant’s servants the policy was written in the name of Captain James Reid instead of complainant; that on…

<p>Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>On the 4th of February, 1897, the First National Bank of Franklin, Ohio, became insolvent, and was put in charge of the appellee, Joseph D. Miller, as receiver. At that time it was a creditor of the Franklin Paper Company, an Ohio corporation, in the sum of $53,602.87, and was also a stockholder in said company to the amount of $5,650, and had prior to that time held other stock it had disposed of, amounting to $5,650. On the 7th of July, 1896, the paper company having become insolvent, Walter B. Schaeffer, a creditor, brought suit in the court of common pleas of Warren county, Ohio, against the bank and all other stockholders of the paper company to enforce the statutory liability, under section 3260 of the Revised Statutes of Ohio of 1892, providing for the double liability of stockholders, in which suit judgment was rendered against all of the stockholders of the paper company. There was a judgment against the bank for $2,361.13 on a liability of $5,650 on the stock which it had sold, which judgment was for the benefit of only 11 creditors, not including the bank; and there was another judgment against the bank for $5,650 on the stock still held by the bank, which was for the benefit of all the creditors of the paper company, including the bank. Dividends aggregating 70 per cent, have been declared by the Comptroller of the Currency, to be paid by the receiver out of the assets of the bank. The estimated dividend from the fund in the hands of the complainant is 5 per cent. Because the receiver claims the right to set off the dividends due the creditors of the paper company on the judgment of $5,050, in which it is a beneficiary, against the dividends which will come to him on the claim of $53,602.87 out of the fund being collected by the receiver of the paper company, this suit has been brought to compel him to issue a certificate for the full amount of the dividends, without reference to the anticipated dividend he may receive. On final hearing the court below decreed that the defendant receiver issue to the complainant a certificate for the sum of $2,361.13, the amount of the judgment which was obtained for the benefit of only 11 creditors of the paper company, not including the bank, and pay the complainant on that certificate the dividends theretofore declared and thereafter to be declared, and paid to the creditors of the bank; that the defendant also issue to the complainant a certificate for the sum of $5,650, the amount of the judgment rendered against the bank, in which the bank was interested to the amount of the dividends it should receive on its claim against the paper company; that the defendant pay to the complainant on the last-named certificate dividends to an amount which, together with the dividend to be paid by the complainant to the defendant, shall equal the amount of the dividends theretofore declared and thereafter to be declared and paid to the creditors of the bank, including the complainant, on the judgment of $5,650; and that the cause be retained until the exact amount of dividend to be paid by the complainant has been determined, and for such further orders as may be necessary. From this decree the receiver for the paper company appealed.</p>

Appeal by libelants from a decree of the District Court for the Eastern District of New York dismissing the libel, entered April 23, 1902. The opinion of the District Court will be found reported in 115 Fed. 852.

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

In Equity. Suit for infringement of letters patent No. 418,678, for an electric switch for motors, granted to Harry H. Blades January 7, 1890. On final hearing.

<p>In Equity. This is a motion for an injunction pendente lite restraining the defendant, the Babcock Manufacturing Company, as prayed for in the bill of complaint, from the further infringement of claims i and 3 of letters patent No. 600,782, issued on the 15th day of March, 1898, to the complainants herein for an improvement in weeders.</p>

<p>In Equity. Suit for infringement of letters patent No. 448,072 for construction of canals, granted to Arthur Pickard March 10, 1891. On motion to vacate temporary injunction.</p>

<p>In Equity. Suit for infringement of letters patent No. 448,072 for construction of canals, granted to Arthur Pickard March 10, 1891.</p>

<p>1. Patents — Infringement—Jurisdiction—Objections—Waiver.</p> <p>Act Cong. March 3, 1897, c. 395, 29 Stat. 695 [U. S. Comp. St. 1901, pp. 588, 589], provides that in suits brought for the infringement of letters patent the circuit courts shall have jurisdiction in the district of which the defendant is an inhabitant, or in any district in which the defendant shall have committed acts of infringement and have a regular place of business. Held that, if defendant is not a resident of the district in which he is sued, he must both have a place of business and have infringed the patent in such district.</p> <p>2. Same — "Waiver.</p> <p>Such provision with reference to the district in which the action shall be brought affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which is waived by defendant’s appearance and failure to object to the jurisdiction before answer.</p>

<p>In Equity. This is a demurrer to the complaint, which complain! seeks to restrain the defendants from infringing letters patent No. 667,916, for a couch-bed, dated February 12, 1901, and issued to Eugene R. Leighton, and thereafter assigned to the complainant, a corporation of the state of Massachusetts.</p>

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

<p>1. Master and Servant — Right of Discharge.</p> <p>In the absence of a contract for employment for a definite time, an employer has the right to discharge his employé without notice at any time.</p> <p>2. Same — Conspiracy to Destroy Labor Union.</p> <p>As, in the absence of contract for employment for a definite period, the employer may discharge his employés at any time, for any reason, or for no reason, there can be no such thing as an unlawful conspiracy to destroy a labor union by discharging its members or refusing to employ them.</p> <p>8. Same — Bill for Injunction — Conclusions of Law.</p> <p>An allegation, in a bill by members of a labor union for an injunction, that defendant, its officers and agents, have unlawfully combined and confederated together to destroy the union, and by threats, intimidation, and coercion, and otherwise, are interfering with plaintiffs and with others of their employés for uniting with the union, and are seeking to prevent those discharged from obtaining employment, contains only conclusions of law.</p> <p>4. Same — Breach of Contract of Employment — Equitable Relief.</p> <p>The remedy for a discharge from employment is at law for breach of contract, and not in equity to enjoin the discharge.</p> <p>5. Same — Right to Blacklist.</p> <p>An employer, having discharged employés for belonging to a labor union, has the right to keep a book containing their names and showing the reason of their discharge, and to invite inspection thereof by other employers, even though the latter, therefore, refuse to hire the discharged employés.</p>

<p>In Equity. Motion to strike from the bill of complaint on exceptions thereto, as scandalous and impertinent, the following:</p> <p>“That the said sons of James A. Burden, respondents herein, are dependent entirely upon their father’s bounty; that James A. Burden, Jr., is married and has a family, and keeps up an expensive establishment, being a house in New York City, in the fashionable part of said city, and that the said Williams P. Burden and Arthur S. Burden also live expensively on their father’s bounty, not being, as your orator is informed and believes, in any business or having any occupation. And, as your orator is informed and believes, the said Burden is practically insolvent, and has no means of repaying this sum or any sums to the Burden Iron Company; that the dividends coming to him from his holdings in the Burden Iron Company are not more than sufficient for the support of himself and his family, including his son James A. Burden, Jr., and his family, and the other two sons of the said Burden, all of whom live in extravagant and expensive style at' James A. Burden’s expense, having and maintaining at least two expensive residences in the city of New York and one or more country residences; and that, furthermore, your orator fears that, by the mere transfer or sale of the said Burden’s shares of stock in the Burden Iron Company, the only dependence or reliance for the repayment of the said sums by the said Burden to the Burden Iron Company will be gone; and, in any event, the said shares of stock and the dividends derived therefrom are not more than sufficient, as your orator is informed, toward the maintenance of the said Burden and of the aforesaid persons dependent on him as aforesaid.”</p>

<p>1. Foreign Corporations — Legality op Service — Subjection to Laws of State.</p> <p>Whether a corporation has subjected itself to the laws of a state other than that of its domicile, so as to be bound by service of process in such state in a personal action, made in accordance with its laws, is a question of general, and not of local, law.</p> <p>2. Same — Doing Business in State.</p> <p>To render service on a corporation, made in a state other than that by which it was created, binding upon it in a personal action, the corporation must have been actually and substantially engaged in doing business in the state, and the service must have been upon an agent so far representing the corporation in the state that he may properly be held, in law, an agent to receive such process in its behalf.</p> <p>8. Same.</p> <p>A Pennsylvania insurance company wrote four accident policies on risks in Wisconsin, all of which were negotiated by correspondence, with the company, and not through the medium of any agent located in the state, or going into it for the purpose, and were issued and the premiums thereon paid at the office in Pennsylvania. Eeld that, even if such transactions could be considered a doing of business within the state at the time by the company, such business did not continue after the policies had been issued merely by reason of the fact that they were held by persons in the state; nor did the collection of a renewal premium on one of such policies through the cashier of a local bank, at the suggestion and for the supposed accommodation of the policy holder, constitute the doing of business within the state, so as to render the company subject to the jurisdiction of its courts.</p> <p>4. Same — Agent on Whom Service may be Made.</p> <p>The'collection by a Pennsylvania insurance company of a single renewal premium through the cashier of a bank in Wisconsin, at the request and for the supposed accommodation of the policy holder, did not make such cashier an agent of the company, representing it in the state, in such sense that service of process on him could bring the company within the jurisdiction of a court of that state, notwithstanding a state statute (Rev. St. Wis. 1898, §§ 2637, 1977) by which such agency is attempted to be created.</p> <p>5. Judgment — Want of Jurisdiction — Service Obtained by Trick.</p> <p>Plaintiff, a resident of Wisconsin, who was a policy holder in a Pennsylvania insurance company, desiring to obtain service on the company in Wisconsin in an action not connected with his policy, requested the company to send a receipt for a renewal premium to the cashier of a local bank, so that he might obtain it at the time of making payment; and it was so sent, with instructions to the cashier to collect the premium and deliver the receipt. Plaintiff paid the premium, and on the same day caused a summons in an action against the company to be served on the cashier, as agent; relying on a state statute which makes any person “who collects any premium for insurance” an agent of the company. Held, that plaintiff having induced the company to send the collection to the cashier for the sole purpose of bringing it within the state jurisdiction, the service so obtained by a fraud or trick was invalid, and the company was not bound by a judgment rendered thereon.</p> <p>6. Same — Collateral Attack.</p> <p>A corporation against which an action was commenced in another state by the service of a summons which was invalid to give the court jurisdiction is not bound to appear and move to set aside the service, but may stand on its rights and attack the judgment rendered when it is sought to be enforced against it.</p>

<p>t. Witnesses — Exhibits to Testimony — Use op Records as Memoranda.</p> <p>Copies of the records in the office of the engineer in charge of a government work, giving the measurements of masonry and the quantities of materials used therein, whether or not admissible as evidence in themselves in an action between private parties, may be used by the engineer as exhibits to his testimony, and referred to therein as the basis for the measurements and quantities testified to by him, whether the measurements were made by him, or by different subordinates and reported to him; and tables compiled from such records by the engineer, for the purpose of computing the total quantity of a certain material used, may likewise be so used and referred to.</p> <p>2. Contracts to Furnish Building Material — Determination op Quantity —Stipulation to Accept Engineer’s Estimate.</p> <p>A contract for the furnishing of stone to the contractor for building government coast batteries provided that final settlement should be made “on final estimates rendered for said work by the engineer officer in charge.” Helé, that an estimate of the quantity of stone used, made by the engineer officer in charge from the measurements of the masonry in place and other records in his office, from which he computed the average quantity of stone used in a cubic yard of such masonry by what appeared to be a fair and practical method, was conclusive on the parties.</p>

<p>In Equity.</p> <p>Demurrer of Schenectady Railway Company and Central Trust Company to bill of complaint which seeks for relief the reviewing and revising of a decree of foreclosure heretofore made, so as to omit from the description of the property described therein Washington avenue, and decreeing that a certain agreement made by the receiver of the Schenectady Street Railway Company and the city of Schenectady and others be adjudged to have been assented and agreed to by all the property owners and bond owners of the Central Trust Company, by tbe Schenectady Street Railway Company, by certain purchasers under the foreclosure sale in said foreclosure action, and by the Schenectady Street Railway Company, and that it be decreed that such agreement be approved by the court and binding upon all the parties and every one; also that the Schenectady Railway Company, its president, etc., be restrained from entering on any part of the above-mentioned portions of Washington avenue, and doing any act in the construction or in the operation of any sort of railroad upon, and from running any electric current through, any, wire over any part of the said premises, etc.</p>

<p>1. Bankruptcy — Supplementary Proceedings — Contempt—Stay.</p> <p>Bankr. Act July 1, 1898, § 11a, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426], provides that a suit which is founded on a claim from which a discharge would be a release, and which is pending against the person at the time of the filing of a petition against him, shall be stayed until after an adjudication or dismissal of the petition, and, after the person is adjudged a bankrupt, the action may be further stayed until 12 months after the date of such adjudication, or until the question of discharge is determined, if within that time a discharge is applied for. Held:, that where supplementary. proceedings were begun to enforce a judgment not obtained within four months of the filing of the petition on a debt duly scheduled, and which would be barred by a discharge, and before hearing the debtor was adjudged a bankrupt, such adjudication did not affect the state court’s jurisdiction of the supplementary proceedings, nor authorize the debtor to refuse to comply with the state court’s order directing her examination, in the absence of an application to the federal district court for a stay of such proceedings.</p> <p>8. Same — Application for Injunction — Stay.</p> <p>An application to the federal district court to restrain the state court from punishing a bankrupt.for contempt in failing to appear before a referee for examination might be treated as an application .for a stay of such proceedings, no fine having been imposed, and it being evident that no actual contempt was intended.</p>

<p>1. Negligence — Places Attractive to Children — Canal—Railings.</p> <p>Maintenance of an unguarded canal, having precipitous hanks, through a thickly settled portion of a town, to conduct water to defendant’s mills, was not, on the allegations of the declaration in this case, such negligence as to sustain a recovery for the death of a child five years of age, who fell into the canal and was drowned.</p>

<p>1. Bankruptcy — Order on Bankrupt to Turn Over Property — Findings to Justify.</p> <p>To justify an order directing a bankrupt to turn over money or property to his trustee, it must be found that he has such money or property belonging to his estate in his possession or under his control, which he has concealed and withheld from his trustee.</p>

<p>1. Labels — Simulation—Injunction.</p> <p>Where defendants, for tbe purpose of marketing tbeir goods, used a label in sucb similitude to plaintiff’s well-known label that it was at once calculated and intended to defraud both plaintiff and purchasers of the particular class of goods, and tbe differences in the labels were not sucb as would be recognized by ordinary inspection, plaintiff was entitled to enjoin the further use thereof.</p> <p>2. Same — Differences.</p> <p>Conformity of one label to another sufficient to attract and deceive is not excused by ability to analyze tbe offending label, and point out differences which if known and recognized would avoid confusion, where the ensemble is sufficient to mislead the ordinary purchaser.</p>

<p>Appeal by James P. Smith & Co., importers, from a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs on certain merchandise imported at the port of New- York.</p> <p>The articles in controversy consist of glass bottles, filled with anchovies- and fluid extract of meat, which are enumerated, respectively, in paragraphs 258, 276, Schedule G, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 151, 172 (U. S. Comp. St. 1901, pp. 1650, 1652), under which paragraphs the-articles were classified by the collector. The bottles were separately assessed under paragraph 99, Schedule B, § 1, c. 11, of said act, 30 Stat. 156 (U. S. Comp, St. 1901, p. 1633), which relates to “glass bottles, * * * filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free.” The importers contend that because said paragraph 258 provides for anchovies “in bottles,” and said paragraph 276 provides that “the dutiable weight * * * of the fluid extract of meat shall not include the weight of the package in which the same is imported,” these references to the containers of the merchandise constitute special provisions for the bottles, whereby they are removed from the operation of paragraph 99. The board overruled this contention in a brief opinion. The reasons for this action appear more fully from the board’s opinion in another case on an analogous question (In re Acker, G. A. 4985), which reads as follows:</p> <p>“SOMERVILLE, General Appraiser. The merchandise in question consists of glass bottles containing olive oil. Duty'was assessed under the tariff act of 1897, as follows: (1) On the bottles at the rate of 40 per cent, ad valorem under paragraph 99, the pertinent part of which reads: ‘Bottles, * * * filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free: * * * provided, that none of the above articles shall pay a less rate of duty than forty per centum ad valorem.’ (2) On the oil in the bottles at the rate of 50 cents per gallon, under the provision in paragraph 40, Schedule A, § 1, c. 11, 30 Stat. 153 [U. S. Comp. St. 1901, p. 1629], for ‘olive oil * * * in bottles, jars, tins, or similar packages.’ The claim of the protestants is that no duty should have been paid on the bottles, on the theory that the assessment of 50 cents per gallon on the oil ‘in bottles’ covered all the duty intended to be imposed on the oil and the bottles; in other words, that said paragraph 40 constitutes a special provision for the bottles, thereby removing them from the application of paragraph 99, which, as will be noticed, is limited to bottles ‘not otherwise specially provided for.’ In the opinion of the board this contention is unsound. A similar question was decided adversely to the importers by the Supreme Court in the case of Schmidt v. Badger, 107 U. S. 85, 1 Sup. Ct. 530, 27 L. Ed. 328. The merchandise in that case consisted of ale and beer in bottles, assessed for duty under a provision for ‘ale, porter, and beer in bottles,’ a separate duty being collected on the bottles under a provision for ‘glass bottles or jars filled with articles not otherwise provided for.’ The provisions quoted appeared, respectively, in Schedules A, B, and G of section 2504 of the Revised Statutes. The court, in overruling the contention of the importers that the separate duty should not have been collected on the bottles, said (per Blatchford, J.): ‘By section 2, c. 36, of the act of February 8, 1875 (18 Stat. 307). it is expressly enacted that no separate or additional duty shall be collected on the bottles in which still wines are imported. The additional duty on bottles in which other articles than still wines are imported is left undisturbed. It is manifest, we think, in view of the course of legislation by Congress, that an enactment that the duty on ale, porter, and beer in bottles shall be so much per gallon cannot be regarded as an enactment that there shall be no additional duty on the bottles, when there is another provision of law which imposes an ad valorem duty on bottles, not otherwise provided for, filled with articles.’ The Circuit Court of Appeals for the Second Circuit, in the case of United States v. De Luze, 95 Fed. 971, 37 C. C. A. 344, held that bottles of a capacity of more than one pint, and containing champagne, which was assessed for duty under paragraph 243, Schedule H, § 1, c. 349, of the tariff act of August 27, 1894 (28 Stat. 525), which provided for ‘champagne * * * in bottles, containing each not more than one quart, and more than one pint,’ were subject to a separate duty under the provision in paragraph 88 of said act for ‘bottles, holding more than one pint, * * * whether filled or unfilled, and whether their contents be dutiable or free, * * * not specially provided for.’ A like conclusion was reached by the board, on precisely the same question, in the case of In re Pierce, G. A,. 2896. It appears by reference to the present act that among the provisions for merchandise ‘in bottles’ there are, besides said paragraph 40, paragraphs 241, 258, 264, 295, 296, 297, 300, and 301. In the five paragraphs last enumerated it is specifically stated that no additional or separate duty shall be assessed on the bottles. The absence of a like provision in the other paragraphs (including paragraph 40, now in question) indicates that where Congress intended that bottles should be excluded from the provision for filled bottles in paragraph 99 the intent has been plainly expressed, and the inference is that where no such exception Is made it was the legislative intention that the bottles should be dutiable under paragraph 99. Following the decisions cited, we hold that the bottles in question are not covered by paragraph 40, but are dutiable under paragraph 99, as assessed by the collector. The protest is accordingly overruled, the decision of the collector being affirmed.”</p>

<p>1. Customs Duties — Classification—Salted Fish in Wooden Packages— Repugnant Peovisions.</p> <p>HeldI, that the provision in paragraph 258, Schedule G, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), for “fish in packages containing less than one-half barrel,” and the provision in paragraph 261, Schedule G, § 1, e. 11, of said act, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1651), for “fish, * * ® salted or otherwise prepared for preservation,” are, as to salted fish (sardels) in wooden packages, equally specific, and that, under section 7 of said act, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), which provides that, “if two or more rates of duty shall be applicable to any imported article, it shall pay duty at the highest of such rates,” the merchandise in question is properly dutiable at whichever of the rates specified in the two provisions is the higher.</p>

<p>Appeal by the United States from a decision of the Board of General Appraisers which sustained the protest of the importer.</p> <p>This appeal was taken by virtue of instructions by the Secretary of the Treasury to the collector of customs at the port of New York. These instructions are published as T. D. 20,692, the pertinent portion of which reads as follows:</p> <p>The department is in receipt of the decision, dated the 12th ultimo, of the Board of General Appraisers (not published), sustaining the protest, 77,152a-14,595, of Messrs. C. A. Haynes & Co. It appears that the merchandise was returned by the appraiser as wool traveling rugs, and duty was assessed thereon at 44 cents per pound and 50 per cent, ad valorem, under paragraph 392, Schedule K, § 1, c. 1244, of the tariff act of October 1, 1890 (26 Stat. 596), as a manufacture of wool, and that the principal claim in the protest is under paragraphs 407 and 408 of said act (section 1, Schedule K, 26 Stat. 598), where rugs are provided for eo nomine. The board in its decision states: “The contention here raised seems to be settled in principle by the decision of the Circuit Court of Appeals in Ingersoll v. Magone, 4 C. C. A. 150, 53 Fed. 1008. Following that ruling, we sustain the protest, claiming the goods to be dutiable at 50 per cent., ad valorem, and reverse the collector’s decision accordingly.” The department does not concur in the conclusions reached by the Board of General Appraisers in this case. In following the ruling in Ingersoll v. Magone, the board held the goods dutiable at 50 per cent, ad valorem, on the ground, probably, that they were rugs provided for eo nomine. The court decision referred to was under the act of March 3, 1883, which, in paragraph 378, c. 121, Schedule K (22 Stat. 510), after enumerating rugs and other articles obviously in the line of carpets or carpeting, proceeds as follows: “And the duty on all other mats, * * * hassocks, and rugs shall be 40 per centum ad valorem.” Hence the court held the articles to come under the special provision for “all other rugs.” The distinguishing feature of paragraph 408 of the succeeding act of 1890, in the opinion of the department, differentiates the case now presented from the one relied upon by the board. The provision for “other rugs” is dropped in the later legislation, and the paragraph reads, “mats, rugs, screens, covers, hassocks, bed sides, art squares and other portions of carpets or carpeting made wholly or in part of wool and not specially provided for in this act shall be subjected to the rate of duty herein imposed on carpets or carpeting of like character and description.” In the preceding numerous specifications of carpets or carpeting, none is found to characterize or apply to the rugs in question. These are traveling rugs, and, although the Board of General Appraisers does not find any fact other than that they were returned by the appraiser as wool traveling rugs, the essential fact appears in the protest that they are similar to those covered by G. A. 2069; that is, that they are composed of mohair and cotton, and are not portions of carpets or carpeting. If it is true that the merchandise in question is not carpets or carpeting, or is not of like character or description as the carpets or carpeting upon which duties are specifically imposed by paragraphs 399-407, inclusive, Schedule K, § 1, c. 1244 (26 Stat. 597, 598), then we must look elsewhere in the traiff for the appropriate provision. It may be found in paragraph 392, for “all manufactures of every description made wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals.” These considerations seem to fully justify an appeal to the Circuit Court, and you are therefore hereby directed to file an application for review of the board’s decision.</p>

Appeal by the importer 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 of the importations in question.

Appeal by Amerman & Patterson, importers, from a decision of the Board of General Appraisers relating to an importation at the port of New York, where the assessment of duty by the collector of customs was affirmed by reason of the failure of the importers to make what the board considered would be the appropriate contention in their protest.

<p>Appeals by the importers from decisions of the board of general appraisers affirming the decisions of the collector of customs with regard to certain importations made at the port of New York.</p> <p>The merchandise covered by these appeals was described in the decisions of the board as consisting of tetrachlorphtalic anhydride and of an article invoiced as phtalic acid. The former was found to be “a chemical compound, a coal-tar preparation not a color or dye, and not an acid.” As to the latter it was observed (G. A. 3952): “Tbe so-called ‘pbtalic acid, distilled,’ is in-fact phtalic anhydride, a coal-tar preparation not a color or dye. It is used as one of the materials in the manufacture of certain coal-tar dyes. It is not an acid, but is produced from phtalic acid by distillation. It is known in the-arts and in trade and commerce by the name of ‘phtalic anhydride,’ and sometimes as ‘phtalic acid, anhydrous.’ It is not known in trade and commerce as an acid, but it is commercially distinguished from phtalic acid, which is-known in trade and commerce as an acid.”</p>

<p>Appeal by R. J. Waddell & Co., importers, from a decision of the Board of General Appraisers (G. A. 4145) which affirmed the assessment of duty by the collector of customs on certain merchandise imported at the port of New York.</p> <p>The merchandise is known as composition pumice stone, and is a manufactured article, complete and ready for use. It consists of ground or pulverized pumice stone and clay mixed and pressed or molded into bricks or cakes of different sizes, shapes, and grades or qualities of texture or grain, depending upon the use for which it is intended — whether by painters, varnishers, polishers, cabinetmakers, marble workers,» and others, in rubbing, smoothing or polishing the surfaces of wood, stone, marble, etc. Duty was assessed by the collector under the provision in paragraph 97, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1633), for “articles and wares composed wholly or in chief value of earthy or mineral substances, * * * not decorated.” The contention of the importers is that the articles are properly dutiable under the provision in paragraph 92, Schedule B, § 1, c. 11, of said act, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), for “pumice stone, wholly or partially manufactured,” either directly, or as being similar to such pumice stone, within the meaning of section 7 of said act, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), which provides that “each and every imported article, not enumerated, * * * which is similar, either in material, quality, texture, or the use to which it may be applied to any article enumerated * * * as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned.”</p>

<p>1. Partnership Associations — Statutory . Rioht to Sue in Association Name — Federal Courts.</p> <p>A limited partnership association organized under the statutes of a state, which expressly give it a legal entity, with the right to sue and be sued in its association name, may maintain a suit in such name in a federal court for infringement of a patent, or in any cáse where jurisdiction does not depend on diversity of citizenship.</p>

<p>Appeals from Decisions of Commissioner Ordering Deportation of Chinese Persons.</p>

Appeal by the United States from a Decision of the Board of General Appraisers. Affirmed on appeal, 105 Fed. 1005, 44 C. C. A. 686. Note in Re Switzer, G. A. 3983.

<p>1. Jurisdiction of Federal Courts — Diversity of Citizenship — Arrangement of Parties.</p> <p>The bill of plaintiff corporation alleged that it was engaged in the business of selling coal and coke; that it had contracts with defendant coal companies by which it was to take and pay for all their product at the mines, to furnish transportation, and to sell the same at prices fixed by the companies, receiving a stipulated sum per ton for its services; that by the terms of such contracts defendant companies were not liable for damages for failing to furnish coal or coke to plaintiff where such failure was caused by strikes; that in reliance on such contracts plaintiff had made contracts for the sale of large quantities of coal and coke, which could only be supplied from the mines of defendant companies; that the latter were prevented from furnishing the same by the wrongful and illegal acts of individual defendants, who were conducting a strike among the miners, and who, by intimidation and threats, prevented others from working in the mines. Helds, that the bill showed such an interest in plaintiff as entitled it to maintain the suit in its own right for its protection independently of the coal companies, which, while properly made defendants, could not be aligned with plaintiff to defeat the jurisdiction of a federal court, their interests, while perhaps not adverse, being based on different rights.</p> <p>2. Injunction — Right to Relief — Parties.</p> <p>In such suit, to enjoin the alleged illegal acts of the individual defendants, the plaintiff is the real party in interest, and not the defendant companies, who have no interest in plaintiff’s contract rights which it seeks to protect.</p> <p>8. Same — Sufficiency of Bill.</p> <p>While the allegations of such bill do not show that plaintiff has any interest in the coal or coke produced by the defendant companies until the same is delivered, they show rights in plaintiff, arising out of its contracts with such companies, interference with which by the individual defendants will result in irreparable injury to plaintiff, and which entitle it to equitable relief; it being further shown that such defendants are hot financially responsible.'</p> <p>4. Same — Misjoinder of Defendants.</p> <p>Such bill is not demurrable for misjoinder of parties defendant, plaintiff having the right to require the defendant companies to do all in their power to perform the duty imposed by their contracts to operate their mines, and to prevent interference with such operation by their co-defendants, as well as to ask the aid of the court to restrain such unlawful interference.</p>

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

In Equity. Suit for infringement of letters patent No. 473,563, for a shuttle-carrying block of a swivel-loom, granted April, 1892, to August Wagner. On final hearing.

In Equity. Suit for infringement of letters patent No. 721,117 for automatic stereotype printing plate casting and finishing apparatus, granted February 17, 1903, to Henry A. W. Wood, and the related patents to the same inventor, Nos. 721,118, 721,120 and 721,-121. On motion for preliminary injunction.

This is a motion for'a rule or order enjoining the defendants, and each of them, during the pendency of this suit, from taking any proceedings whatever under and pursuant to the execution referred to in the bill of complaint, and which was issued upon a judgment and proceedings in the District Court of the United States for the Eastern Division of the Southern District of Georgia, and from in any manner attempting to collect the amount of the execution or any part thereof.

<p>1. Corporations —Assets—Trust Fund.</p> <p>While the capital stock and property of a corporation are regarded as a trust fund for the payment of .its debts, they are not a trust fund for the payment of stockholders on dissolution.</p> <p>2. Same — Liquidation—Receivers.</p> <p>Under Gen. St. Ky. § 561, authorizing a corporation, on termination of its charter by lapse of time, to continue its business for the purpose of closing its affairs, the fact that a corporation, just prior to the termination of its corporate existence, for the purpose of liquidation, passed a resolution appointing a certain -trust company as a liquidator, and providing for the sale of the corporation's property and assets, in the absence of fraud, did not constitute a ground for the appointment of a receiver at the instance of a dissenting minority stockholder.</p> <p>8. Same — State and Federal Courts — Conflicting Jurisdiction — Distribution of Assets.</p> <p>Where, in an action by a stockholder in the state court against the corporation, the only relief which could have been granted on the case made by the complaint was an order requiring an inspection of the corporation’s books, and after the institution of such action another suit was instituted in the federal court by a creditor of the corporation, alleging its insolvency, and in such action a receiver of the 'corporation was appointed, who rightfully acquired possession of the corporation’s property before a receiver had been appointed by the state court in the stockholder’s action, the federal court, having first acquired jurisdiction of the res, would not surrender the property to the receiver appointed in the state court, for distribution.</p>

<p>1. Jurisdiction of Federal Courts — Diversity of Citizenship — Citizenship of Corporation Incorporated in Different States.</p> <p>A corporation, owning and maintaining a system of railroad in Massachusetts and Connecticut, and so incorporated in both states that the Circuit Court in Massachusetts has jurisdiction of a suit there brought against it by a citizen of Connecticut, and, conversely, the Circuit Court in Connecticut has jurisdiction of a suit there brought against it by a citizen of Massachusetts, cannot be sued in the Circuit Court in Massachusetts by a citizen of Massachusetts, who alleges that the defendant is a citizen of Connecticut.</p>

<p>In Bankruptcy. On exceptions to answer in involuntary proceedings.</p>

<p>1. Parties — Suit in Federal Court — Necessity of Joining Foreign Corporation.</p> <p>The fact that by an agreement between two corporations certain stocks were to be held by one as collateral security for bonds to be issued by a third corporation does not render the latter a necessary party to a suit to determine the ownership of the stocks as between the first and second corporations, so as to defeat the jurisdiction of a federal court where the third corporation is outside the jurisdiction and cannot be brought in, since the court has power to protect its interests under the pledge agreement, whichever party to such agreement may be decreed the owner of the security.</p> <p>2. Corporations — Suit by Stockholder — Conditions Precedent.</p> <p>It is not a condition precedent to the maintenance of an action by a stockholder against the corporation and another to set aside an alleged fraudulent agreement made between the defendants that complainant should offer to return property acquired by the corporation through such agreement, or show an effort to procure its return by the corporation, where he alleges a demand upon the corporation to institute the suit, and its refusal.</p> <p>■S. Same — Compliance with Equity Rule 94 — Sufficiency of Allegation.</p> <p>Allegations in a bill filed by a stockholder 'against the corporation and another to set aside an agreement between them, charged to be fraudulent, that complainant demanded of the corporation “that it institute the suit set forth in this your orator’s bill of complaint” against its co-defendant, but that tbe corporation has refused and neglected to bring such suit, is a sufficient compliance with equity rule 94.</p> <p>4. Same — Laches—Allegations in Excuse of Delay.</p> <p>In a bill by a stockholder against tbe corporation and another to set aside an alleged fraudulent agreement through which, as charged, the corporation was deprived of income and prevented from paying dividends, a general allegation that complainant was uninformed as to the matters set forth until a few weeks prior to the filing of the bill is insufficient to excuse a delay of eight years after the making of the agreement, and avoid the defense of laches, and especially where facts shown by the bill were of such a character as should have put him on inquiry.</p> <p>5. Same — Pleadings—Allegations of Fkaud.</p> <p>In a bill by a stockholder against the corporation and another to set aside an alleged fraudulent agreement, made pursuant to a state statute, and through which, as charged, the corporation was deprived of income and prevented from paying dividends, allegations that the statute was unconstitutional as defendants knew, and that it was the company’s duty to resist it, but that with this knowledge, and with full knowledge of the effect of proceeding under it, defendants took advantage of the unconstitutional statute, and perpetrated a fraud on the company and its stockholders, etc., followed by a particular statement of what was done, are sufficient allegations of fraud as against a demurrer.</p>

<p>1, Public Lands — Suits foe Cancellation of Patents foe Peaud — Measubb of Pjroof Required.</p> <p>The rule that one who alleges fraud must prove it by satisfactory evidence, which is more than a bare preponderance, and sufficient to overcome the presumption of fact in favor of the honesty of the transaction, applies as well to suits in equity as to actions at law, and with especial force to suits by the United States to cancel patents to lands which have been issued in conformity to the prescribed rules and regulations of the Land Department.</p> <p>3. Same — Validity of Entbies — Timbes and Stone Act.</p> <p>The fact that a lumber company lent money without security to persons to enable them to enter and pay for land under the timber and stone act. in the expectation that when the entrymen obtained title it would be enabled to buy the timber from such lands by reason of the fact that it had the only mill in the vicinity, does not render the entries invalid for fraud, where there was no agreement for the sale prior to the entries, but each man was free to keep the timber or to sell it to others; nor are such entries invalid as made on “speculation” because the persons making them did so with the intention of selling, the timber for their own benefit.</p>

<p>1. Bankruptcy — Power oe Courts — Appointment oe Receiver.</p> <p>A District Court of the United States will not appoint a receiver for the property of an alleged bankrupt on a summary application therefor, by parties to a petition in bankruptcy filed in another district, without such notice to the persons in possession and those otherwise interested as will answer the requirement of due process of law of the Constitution of the United States; such a proceeding is not authorized by the bankruptcy act, and if it were the provision would be of doubtful constitutionality.</p> <p>2. Same — Dispossessing Oeeicehs of State Court.</p> <p>A court of the United States will not dispossess the receiver or other officers of a state court by any summary order or process or otherwise than by formal proceedings taken by its own receiver or trustee for that purpose. Bankruptcy courts are governed by this rule, the same as others, in the exercise of their jurisdiction, and will not interfere with the possession of a state court until after the application, at least, to that court by the trustee or receiver of the bankruptcy court for a surrender of the possession to him, and the refusal of the state court, unwarrantably, to recognize the jurisdiction and authority in bankruptcy.</p> <p>8. Same — Ancillary Jurisdiction — Appointment of Receiver.</p> <p>The bankruptcy act does not vest courts of bankruptcy with ancillary jurisdiction to appoint receivers for the property of a debtor against whom a petition in involuntary bankruptcy has been filed in another district Upon an adjudication the title to all the bankrupt’s property, wherever situated, vests in his trustee, who must proceed to obtain possession like any other owner, and by regular proceedings in courts having jurisdiction, if the property is held adversely. The powers of a receiver pendente lite, appointed before adjudication in that respect, are not defined by the act, but it would seem that he can act only according to the rights and remedies given to ordinary receivers. In any case neither a receiver nor trustee can proceed in another district without making proper parties, obtaining and serving proper process, and filing proper pleadings.</p>

<p>In Equity. Suit to establish and enforce the right of complainant to use the Union Pacific Bridge and tracks across the Missouri river, and the approaches thereto, between Council Bluffs and South Omaha.</p>

<p>In Bankruptcy. On review of decision of referee disallowing exemption claimed by bankrupt.</p>

<p>1. Insurance — Fidelity Bonds — Signature by Employe — Estoppel.</p> <p>Where a fidelity insurance company received premiums for two renewals of a bond, with knowledge that the bond was not signed by the employs whose fidelity was insured, as required by the bond, it was estopped to set up the absence of such signature to prevent a recovery on the bond.</p> <p>2. Same — Bonds—Renewals—Construction.</p> <p>A fidelity bond bound the guarantor to make good and reimburse to the employer any pecuniary loss sustained, occurring during the continuance of the bond, or any renewal thereof, and discovered during such continuance or within six months thereafter. Another provision declared that on the issuance of a subsequent bond, or renewal, responsibility on any other bond should cease; it being the intention that only the last bond should be in force at any one time. The bond was subsequently renewed, the first renewal providing that, in consideration of the sum of $25, the guarantor guarantied the fidelity of the employs from December 1, 1899, to December 1, 1900, subject to the conditions of the previous bond; and the second renewal recited that, in consideration of a similar sum, the guarantor “continued in force” bond numbered, etc., in the sum of $5,000. 3 eld, that such renewals did not operate as a continuing contract, but that each renewal was a separate and distinct obligation, and that an action could only be maintained for losses sustained and discovered at any time after December 1, 1900, and during the continuance of the last renewal.</p> <p>8. Same.</p> <p>A fidelity bond provided that the guarantors should not be responsible to the employer under any bond previously issued on behalf of the employé, and that on the issuance of any subsequent bond all responsibility under the bond in question should cease; it being understood that it was the intention of the provision that but one (the last) bond should be in force at any one time unless otherwise stipulated. 3eldi, that such provision should be construed merely to prevent a double responsibility of the guarantor, and did not affect the employer’s rights under another provision, authorizing a recovery for any defalcation discovered within six months after the termination of the bond.</p>

<p>1. Shipping — Charter—Construction—Validity.</p> <p>The complainant and the Philadelphia and Lewes Transportation Company entered into a charter party under seal by which the complainant hired a steam boat to that company for the term of six months for the hire and other considerations and on the conditions therein specified; the company covenanting, among other things, that the complainant should “have a lien upon all of the property of said charterers, including the wharf at Lewes, Delaware,” owned by the company. Held, on demurrer to a bill seeking to enforce a lien on the wharf, that the above quoted provision was not void for uncertainty, but, taken in connection with other provisions of the charter party, gave to the complainant an equitable lien on the wharf to secure or indemnify him against any and all defaults by the company in the performance of its duty to him under the terms thereof.</p> <p>(Syllabus by the Court.)</p>

<p>Sur Petition of George W. Radford to Take Money out of Court.</p>

<p>1. Courts — Contempt—Habeas Corpus.</p> <p>Where petitioners were imprisoned for violation of a strike Injunction, the only question reviewable on habeas corpus to secure their discharge was whether the court had jurisdiction to grant the injunction.</p> <p>2. Labor — Intimidation op Employes — Strikes—Injunction—Parties.</p> <p>A bill for injunction to restrain intimidation of certain employés alleged that complainant, a resident of New York, held a large mortgage on the property of a fuel company located in West Virginia, which required the latter to pay interest on the bonds secured semiannually, which it would be enabled to do only in case it derived income from the operation of its plants, and that if the plants were closed, or interfered with, injured, or destroyed, neither such interest nor the principal could be paid; that the defendants, who were residents of various states other than New York or West Virginia, were and had been unlawfully engaged in a conspiracy to prevent the mortgagor’s employés from remaining in its employment; and that defendants had been congregating around the mortgagor’s mines and place of business for the purpose of intimidating its employés, inducing them to strike, etc.; and prayed an injunction restraining defendants from such interference. HeldI that, since the bill prayed no relief against the mortgagor, the latter was not a necessary party thereto.</p> <p>B. Same — Federal Jurisdiction.</p> <p>Where, in a suit in the federal courts for an injunction against strikers, the court’s jurisdiction depends on the residence of the parties, a party interested in the suhject-matter need not be made a party to the suit where his joinder would oust the court of jurisdiction, provided a final decree against the parties before the court, consistent with equity and good conscience, can be made.</p>

<p>Habeas Corpus. Hearing on writ and return.</p>

<p>1. Marine Insurance — Seaworthiness—Verdict—New Trial — Weight op Evidence.</p> <p>Where, in an action on a policy for the loss of a vessel, it was uncontradicted that the vessel was old and had never been repaired throughout, and after loss two witnesses who were uncontradicted testified that they made an examination by boring through her waterways, through the ends of the beams, and at some points into the timbers from the mainmast to the foremast, and that no sound wood was found, but only mud and dirty wood, a verdict finding that the vessel was seaworthy was set aside.</p> <p>¡i. New Trial — Verdict against Evidence.</p> <p>The rules which prevail in the federal courts with reference to setting aside verdicts of juries on the ground that they are against the evidence, or the weight of the evidence, commented on, explained, and applied.</p>

<p>1. Bankrupts — Exemption—Liens on Exempt Property — Determination-Jurisdiction.</p> <p>Under Bankrupt Act July 1, 1898, c. 541, § 2, subd. 11, 30 Stat 545 (U. S. Comp. St. 1901, p. 3421], providing that the bankrupt court shall have jurisdiction to determine all claims of bankrupts to their exemption, etc., the court of bankruptcy had jurisdiction to determine a creditor’s claim to an equitable lien on money of the bankrupt collected by the trustee, and claimed 'by the bankrupt as exempt.</p>

<p>1. Customs Duties — Classification — Tots — Optical Instruments — Magic Lanterns.</p> <p>Certain slightly made magic lanterns, not sufficiently substantial to be used by mature persons, but rather by children as toys, are dutiable as “toys,” under paragraph 321, Schedule N, § 1, c. 349, Tariff Act Aug. 27, 1894, 28 Stat. 533, and not as “optical instruments,” under paragraph 98, Schedule B, § 1, of said act (28 Stat. 514).</p>

<p>1. Admiralty — Earnings of Vessel while in Custody of Marshal.</p> <p>Earnings made by a vessel after her seizure by the marshal on process, and between that date and the date of her sale, under an agree-1 ment by which the marshal, with the approval of the court, permitted her use by a charterer in carrying out contracts previously entered into by him, on his giving security for her return, stand on the sainé footing as though they had been made by the use of the vessel by the marshal himself, and are to be paid into court, to be applied on the claim of the libelant.</p>

<p>1. Shipping — Demurrage—Settlement of Claims.</p> <p>The acceptance by a master of demurrage under protest leaves the settlement of the amount rightfully due an open question, and the owner is entitled to urge his claim in accordance with his own views, without regard to the grounds of the master’s protest.</p> <p>2. Same — Time for Loading — Exclusion of Holidays.</p> <p>The Pennsylvania statute relating to holidays and half holidays does not make them obligatory, and where it is not shown that the stevedores engaged in loading a vessel refused to work on Saturday afternoons because of the statute such half days are not to be excluded in computing demurrage.</p>

Appeal by the importers, John Donat & Co., from a decision of the Board of General Appraisers affirming the assessment of duty by the collector of customs at the port of New York on imported merchandise.

<p>At Faw. Trial to the court by stipulation.</p>

<p>1. Steikes — Injunction—Intimidation.</p> <p>Where, in a suit to restrain certain strikers from intimidating plaintiff’s employés, it appeared from the affidavits that defendants and others assembled about complainant’s factory and applied to complainant’s employés vile epithets and other unseemly language, threatened, and in a few instances made actual personal assaults on, such employés, in order to prevent their continuance at work, while defendants’ denials consisted merely of denials of the acts of violence, but did not deny defendants’ presence when such acts were committed, a preliminary injunction issued should be continued until the case could be heard on its merits.</p>

<p>In Bankruptcy. Exceptions to report of referee.</p>

<p>1. Homicide of Wife — Civil Action — Pasties.</p> <p>Under Act Ga. Oct 27, 1887 (Acts 1887, p. 43, Civ. Code 1893, § 3828), providing that the husband may recover for the homicide of his wife, and, if she leave child or children surviving, said husband and children shall sue jointly, with the right to recover the full value of the life of deceased, children, though adults, are necessary parties.</p>

<p>Appeal by the importers, George Borgfeldt & Co., from a decision of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs on certain merchandise imported at the port of New York.</p> <p>The opinion of the Board in Be Illfelder et al., G. A. 4122, follows:</p> <p>Wilkinson, General Appraiser. The goods are jew’s-harps, harmonicas, metallophones, and similar articles of a musical character of the kind chiefly used by, or for the amusement of, children. They were assessed for duty as musical instruments at 45 per cent., under paragraph 453, schedule N, § 1, Act July 24, 1897, e. 11, 30 Stat. 193 [U. S. Comp. Sit. 1901, p. 1678], and are claimed to be dutiable as toys at 35 per cent., under paragraph 418, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]. In the case of all previous tariff conflicts between the provision for musical instruments and that for toys, the rate for musical instruments was the lower, and importers contended, and successfully prosecuted their claim, that articles like those in question should be classified as musical instruments, rather than as toys. For instance, under the Revised Statutes for 1874, toys were dutiable at 50 per cent., and musical instruments at 30 per cent In the case of Schwartz v. Hartranft, 124 Fed. —, the United States circuit court at Philadelphia held that jew’sharps came within the category of musical instruments, and sustained the claim that they were dutiable at 30 per cent. In Treasury Decision 4,859, the department cites the case of Foote v. Arthur, in which the court held that a musical instrument was “an implement or structure artificially constructed, and ordinarily used for the production of a succession of musical and harmonious sounds,” and that certain harmonicas, which contained one and a half octaves, were entitled to entry at the lower rate, as musical instruments. In Treasury Decision 5,938, the department, in reply to an inquiry as to the status of jew’s-harps under the act of 1883, decided that they should be classified as musical instruments, rather than as toys, in conformity with the Philadelphia judicial decision. Treasury Decision 9,685 orders a refund to the importers in the present ease on jew’s-harps and one octave harmonicas, as a result of suit N. S. 8,431 (Borgfeldt v. Robertson), in which the court held that the articles should be classified as musical instruments, rather than as toys. Reference to decisions under the act of 1890 (Act Oct. 1, 1890, c. 1244, 26 Stat. 567) would be misleading, as the act did not enumerate musical instruments. But the act of 1894 (Act Aug. 27, 1894, c. 349, 28 Stat-. 509) provided for both musical instruments and toys. For a little more than four months, under this act, the rate on toys was the higher, and importers successfully contended that jew’s-harps, toy bugles, toy drums, harmonicas, etc., were entitled to the lower rate. Indeed, the learned counsel in the present case said in their brief, when making the contention under the act of 1894: “First. A provision for musical instruments is more definite and of greater enumerating force than a provision for toys. Its range is more limited, its specifications greater. Jew’s-harps are at the same time toys and musical instruments,” etc. This contentiort was sustained in G. A. 2903. We are now asked by the counsel to reach a different conclusion, although the only change in conditions of which the board is aware is a change in rates. But this reversal in rates is not a sufficient reason for a reversal in rulings founded upon a series of judicial decisions qnd upon the settled customs practice of almost 20 years.</p> <p>We find: (1) That the goods are musical instruments, having at least one full octave, or playing, or capable of playing, a musical air. (2) That the goods are toys. Following the judicial decisions referred to, we hold that the provision for musical instruments is more specific than that for toys not specially provided for. We overrule the protests accordingly.</p>

Appeal by the importer from a decision of the Board of General Appraisers affirming the classification by the collector of customs at the port of New York in assessing duty on the importation in question. The merchandise consists of a drug known as guaraña. It was classified by the collector as dutiable at the rate of 25 per cent, ad valorem under the provision in paragraph 68, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 154 (U. S. Comp.

<p>L Admiralty — Injuries to Stevedore — Defective Appliances — Negligence.</p> <p>Plaintiff’s intestate received injuries, from which he died, while assisting in unloading a vessel, by the breaking of a chain attached to the hoist. The chain was 8/10 of an'inch in size, the breaking strength of which was about 10 tons. Three months prior to the accident the chain had been used in lifting tubs of phosphate weighing about 1,200 pounds, and at no time was there any reason to suspect its weakness. Two days before the vessel reached port the chain was used to lift an anchor weighing 2% tons, and after the vessel reached the dock was properly greased and inspected, link by link, without any defect being found. The chain broke while lifting an iron bucket of ore weighing from 2,000 to 2,500 pounds; and, while two experts testified that the crack in the link could have been seen by a careful observer, and that the chain was incapable of lifting more than 300 pounds, their evidence was disputed by the physical facts. Held, that the evidence was insufficient to establish negligence on the part of the owner of the vessel.</p>

<p>I. Shipping — Damage to Cargo — Cutting op Logwood Roots to Facilitate . Stowage.</p> <p>In a suit by a vessel to recover freight for cárrying a cargo of logwood roots, the evidence held to sustain in part the claim of the cargo owner for damages because of the lessened market value of the roots caused by their being cut by the vessel, to facilitate their stowage, in excess of the amount allowable by the custom of the port of loading.</p>

<p>1. Contracts — Mutuality of Obligation — Construction.</p> <p>Defendant contracted to sell plaintiff 12,000 pounds of hops of the crop of 1902, and to deliver the same at a certain warehouse at plaintiff’s direction. The contract provided for the picking and curing of the hops, and declared that plaintiff agreed to advance to defendant $1 on the signing of the contract, and for picking purposes the sum of 6 cents a pound, provided that the hops on the poles, in the plaintiff’s opinion, promised a good quality, etc., “and upon delivery and acceptance of said hops” the plaintiff would pay a certain amount per pound, etc. Held, that the clause on “delivery and acceptance of the hops” the plaintiff would pay, etc., did not confer on plaintiff the arbitrary right to refuse to accept hops of the quality described, and that the contract was therefore not void for want of mutuality of obligation.</p>

This case comes up on appeal from the Circuit Court of the United States for the District of Maryland. Thomas Bruce, the appellant, being in custody of an agent of the state of New Jersey under the warrant of the Governor of Maryland, applied on the 2d January, 1903, to the Circuit Court of the United States for a writ of habeas corpus.

This is an appeal from a decree dismissing the bill in a suit brought by the appellants complaining of the infringement of claims 1, 2, and 7 of letters patent No. 460,426, granted September 29, 1891, to Ferdinand E. Canda, the assignor of the complainants, and praying for an injunction, and for profits and damages. The patent was granted for improvements in the construction of drawbar attachments for railroad cars.

In Equity. The bill of complaint in this suit was filed February 7, 1901, by the complainant against the defendant, to enjoin and restrain the defendant from infringing reissued letters patent No. 11,-872, dated November 13, 1900, issued to A. Wahl and C. A. Coffin,administrators of C. J. Van Depoele, assignors to Thomson-Houston Electric Company, for improvement in traveling contacts for electric railways. The original of this patent is No. 495,443, dated April 11, 1893.

In Equity. The bill of complaint in this action was filed to obtain an injunction restraining the defendant from infringing, by making, selling, or otherwise, letters patent No. 371,448, bearing date October 11, 1887, granted to Henry S. Hale, and assigned to the complainant, and to recover damages for alleged infringement, through an accounting.

<p>1. Patents — Infringement—Eyeglass Guards.</p> <p>The Wells patent, No. 412,442, for eyeglasses, relating to that part of the frame designed to hold the glasses on the nose of the wearer, which, as shown, consists of two or more pads on each side, one at least being above and to the rear of the others, such pads being attached to posts or standards secured to the lenses, the object being to hold the glasses steady in position, and prevent rocking or tipping, was not anticipated, and is valid. Claims 4 and 5 of such patent are also infringed by the lasso nose pieces or guards constructed in accordance with the Fox patent, No. 695,681, which, although varying in form, embody the same principle, and accomplish the same result in the same way, and by devices substantially the same.</p>

<p>In Equity. Suit for infringement of letters patent Nos. 331,251, 331,252, and 333,081, granted to Christoph Mussell November 24, 1885, and December 22, 1885, respectively, and No. 537,939, granted to W. C. and Granville L. Savage April 23, 1895, all relating to a method and devices for filling kegs with beer. On final hearing.</p>

<p>1. Patents — Infringement—Incandescent Lamp Sockets.</p> <p>The Lange patent, No. 434,153, for an incandescent lamp socket, was not anticipated nor so limited by the prior art that it must be narrowly restricted in construction. Claims 1 and 2 construed, and held infringed.</p>

<p>This is a ft action at law for the recovery of damages alleged to have been sustained by the plaintiff by the use by defendant of a number of wood pulp screens manufactured and sold to defendant by one Darwin B. Gotham under his patents (as he claims) Nos. 511,770 and 530,586, and which are alleged to infringe claims 1 and 2 of letters patent to Edmund Victory, plaintiff’s intestate, No. 417,451, dated December 17, 1889, application filed April 19, 1889.</p>

<p>In Equity. Suit for infringement of letters patent Nos. 307,152 and 360,931, both for improvements in knitting machines, granted to Albert Tompkins and Ira Tompkins on October 28, 1884, and April 12, 1887, respectively. On final hearing.</p> <p>The hill In equity in this cause was filed to obtain an injunction restraining alleged infringement of two patents, both relating to devices for use on knitting machines, and so adapted as to be used separately, or at the same time and upon the same machine, being letters patent Nos. 307,152 and 360,931, respectively, and for damages and an accounting because of alleged infringement. Letters patent No. 307,152 were issued or dated October 28, 1884, and letters patent No. 360,931 were issued or dated April 12, 1887. Defendants say patent No. 307,152 was void for want of novelty, and its single claim contained one or more elements not found in defendants’ construction, and was not infringed. Defendants say patent No. 360,931 has in each of its claims one or more elements not found in the defendants’ construction and is not infringed, and that same is void, having been in public use and on sale more than two years prior to the date of the application for a patent. During the pendency of this action and before the trial the first-mentioned patent expired, and only damages can be recovered.</p>

<p>L Patents — Infringement—Street Railway Switches.</p> <p>■ The Moxham patent, No. 539,878, for railway switch work, when limited, to the specific combination shown, the principal feature of novelty being a center piece provided with hardened track surfaces, was not anticipated, and shows invention. Claims 1 and 2 also held infringed.</p>

<p>1. Patents — Manufacture of Screw Insulators — Validity—Infringement.</p> <p>Claims 1, 2, 3, 6, 7 and 8 of patent No. 542,565, dated July 9, 1895, granted to Seraphin Kribs, assignor to William Brookfield, for “Improvements in Presses for Making Screw-Insulators,” are valid and were infringed by the defendant.</p> <p>8. Same — Construction.</p> <p>- Claim 1 of patent No. 532,973, dated January 22, 1895, granted to Seraphin Kribs, assignor to William Brookfield, for “Improvements in Screw Presses for Forming Insulators,” is of a subsidiary nature and of narrow scope; and, in view of the prior art, if it can be sustained at all, must receive such a narrow construction as to negative the charge of infringement by the defendant.</p> <p>(Syllabus by the Court.)</p>

In Equity. The bill of complaint in this cause was filed against the defendant to restrain him from further infringing letters patent No. 492,913, dated March 7, 1893, and issued to J. C. Chambers, being a patent for an electric lighter or cigar lighter, and for an accounting.

In Equity. Suit for infringement of letters patent No. 623,933, for a bowling alley,'granted to William H. Wiggins April 23, 1899. On motion for preliminary injunction.

<p>1. Contracts — Persons Entitled to Enforce — Contract for Benefit of Another.</p> <p>By a contract between two corporations, one agreed to sell and transfer to the other all of its property and existing contracts; the transfer to be made on a specified date, when the selling company was to be dissolved. By a provision of the contract, the purchasing company agreed that, to enable the selling company “to make an immediate settlement of its affairs and distribution of its assets,” the purchasing company, as a part of the transaction, would satisfy and discharge the indebtedness and liabilities of the other company, of any and every kind, which might be unsatisfied at the time of the transfer. Held! that, while the primary purpose of such provision may have been the benefit of the selling company, it was also incidentally intended for the benefit of its creditors, since it was about to dissolve, and that a creditor could enforce such provision against the promisor, as one made for his benefit.</p> <p>2. Reformation of Contract — Right to Maintain Suit — Assumption of Contract by Another.</p> <p>Where one corporation purchased all the property, assets, and good will of another, paying therefor with an issue of its own stock, the same being distributed among the stockholders of the second company, which thereupon dissolved, and, as a part of the transaction, assumed and agreed to perform all of the contracts of the selling company, and satisfy and discharge all of its indebtedness and liabilities, of any and every kind, a party to an existing contract with the selling company may maintain a suit against the purchasing company for its reformation on the ground of mutual mistake, whether or not the defendant had knowledge of the mistake.</p> <p>8. Same — Grounds—Mutual Mistake.</p> <p>Where negotiations for a contract were between agents or representatives of the respective parties, and the contract, when reduced to writing, was presented to one of the principals and signed by him, and was then signed by the agent for the other party on its behalf, afterward being submitted to his principal, and not objected to, evidence that the agents understood the ¿terms of the contract agreed upon to be different from those embodied in the writing is not sufficient to establish a mutual mistake on the part of the principals, which would warrant the reformation of the contract as written.</p>

<p>In Equity. On motion for preliminary injunction.</p> <p>Order to show cause why a preliminary injunction should not be granted restraining the city and county of San Francisco and its board of supervisors, and each of them, and all consumers of water in said city and county, during the pendency of this action and until its final determination, from bringing or causing to be brought any suit or action against the complainant, in law or in equity, to enforce a certain bill or ordinance passed by said board on March 9, 1903, or any suit or action against the complainant for the forfeiture of complainant’s franchise, works, or property, or for any other purpose, on account of complainant’s failure or refusal to conform to the rates prescribed by said bill or ordinance, and from any attempt or suit or action, directly or indirectly, to compel complainant to furnish water at any other rates than those which may be permitted by this court pending this litigation, or legally or reasonably fixed by said board of supervisors in obedience to any decree or mandate of this court in this action; and why the complainant should not, pending this litigation, be permitted by this court to collect rates for water supplied by it to said city and county of San Francisco and its inhabitants in accordance with the terms of a bill or ordinance passed by said board of supervisors on March 24, 1902, and now in force in relation to such rates.</p>

<p>1. Unfair Trade — Use of Name.</p> <p>Plaintiff was the successor of the original Faber pencil manufacturing business, established in 1761, which business became and is widely known under the name “A. W. Faber,” who succeeded the originator of the business. Thereafter defendant’s father, Eberhard Faber, was appointed sole agent for the United States of the German house of Faber, and was authorized to manufacture a low grade of lead pencils, but was never given the right to use either the name “Faber” or “A. W. Faber.” Defendant’s father, however, wrongfully labeled certain of his pencils with the name “Faber,” and defendant, on succeeding to his father’s business, over plaintiff’s protest, continued to label his pencils “E. Faber,” “Faber,” “Faber Pencil Company,” and “Eberhard Faber Pencil Company,” which resulted in misleading plaintiff’s customers to think that defendant’s pencils were manufactured by the original house of Faber. The agency was subsequently terminated by reason of these practices, and defendant subsequently signed a written contract agreeing not to use the word “Faber” without the word “Eberhard,” or the initials of defendant’s first name. Defendant, however, failed to comnly with this contract, and continued to stamp his pencils as before. Held, that defendant was guilty of unfair trade, and that plaintiff was entitled to an injunction restraining him from using the word "Faber” without the prefix “Eberhard” or “John E.” or “J. Eberhard.”</p> <p>3. Same — Family Name.</p> <p>Where a family name has become a trade-mark applied to a manufactured article, no special right to use the same accrues by virtue of the relation which descendants bear to the original manufacturer of the same name; such descendants being entitled to use such family name only in connection with some distinguishing name or initial where the use of the surname alone would create unfair competition in trade.</p>

<p>1. Customs Duties — Importations prom Porto Rico — Foraker Act.</p> <p>Section 5 of tlie Foraker act, providing a temporary government and revenues for Porto Rico (Act April 12, 1900, c. 191, 31 Stat. 77), which provides that on and after the day of its taking effect all goods, wares, and merchandise previously imported from Porto Rico, for which no entry has been made, or entered without payment of duty, and under bond for warehousing, etc., shall he subject to the duties imposed by the act upon the entry or withdrawal thereof, is constitutional; and goods brought from Porto Rico after its cession, and when there was no duty thereon in force, and voluntarily placed and allowed to remain in »a bonded warehouse by the owner until after such act went into effect, became subject to the duty thereby imposed when withdrawn for consumption.</p> <p>2. Constitutional Law — Ex Post Facto Laws.</p> <p>The constitutional prohibition against ex post facto laws applies only to criminal or penal statutes.</p>

<p>1. Carriers — Interstate Commerce Law — Undue Preference in Rates between Localities.</p> <p>Conditions are such at Norfolk and Richmond, Va., hy reason of the large number of carrying lines, both rail and water, which enter such places, and the fact that they are in what is known as the “trunk line territory,” as to create a very active competition on shipments from the West, and to justify the making of low rates on such shipments; and the fact that such low rates are made on through shipments from Chicago, St. Louis, and East St Louis by a material reduction from local tariff rates by the connecting lines west of the Ohio river, while substantially the local rates are charged on the same lines on through shipments from the same points to Wilmington, N. C., which is not within the trunk line territory, but in the southern territory, and has fewer lines of transportation, and less active competition, resulting in higher through rates to the latter place, although the length of haul is substantially the same, does not operate to give Norfolk and Richmond an undue or unreasonable preference or advantage, or subject Wilmington to an undue or unreasonable prejudice or disadvantage, in violation of section 3 of the act to regulate commerce (24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]).</p>

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

<p>:l. Aliens — Deportation—Statutes—Repeal.</p> <p>Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, amending and re-enacting the immigration laws pre-existing and providing for the repeal of all other conflicting provisions, re-enumerated all the excluded classes of aliens specified in Act Cong. March 3, 1891, c. 551, § 1, 20 Stat. 1084 [U. S. Comp. St. 1901, p. 1294], with some additions, but specifically omitted the clause in such section relating to contract laborers excluded under Act Cong. Feb. 26, 1885, c. 164, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290]. The Congressional Record (page 3205), as to the passage of the act of 1903, showed that the omission was intentional, but that Congress-thereby intended to leave intact the contract labor laws as they previously existed. Helé, that the omission to provide for the deportation: of contract laborers in the act of 1903 did not repeal the provisions of Acts Cong. Feb. 26, 1885, e. 164, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290], and March 3, 1891, c. 551, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294], relative thereto.</p> <p>2. Same — Learned Profession.</p> <p>Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, provides for the deportation of aliens, and declares (section 4), that the inhibition against the importation of aliens to perform labor or service of any kind, skilled or unskilled, shall not apply to persons belonging to any recognized, learned-profession. HeldI, that aliens imported under contract, who were expert accountants, were not members of a recognized learned profession, within, the terms of the exception, and were, therefore, not entitled to entry.</p>

<p>1. Navigable Waters — Mobile River — Shore Land — Construction of W harves — Custom.</p> <p>Where the owners of land abutting on the tide waters of the Mobile river, within the city of Mobile, by long usage and immemorial custom had been accorded the right to build wharves, bulkheads, booms, and other structures on "the flats and in the river in front of their uplands, which did not impede navigation, an owner of such uplands was entitled to use the shore of the river in connection with the upland, including the right to erect piers, wharves, etc., according to the custom.</p> <p>2. Same — Implied License.</p> <p>The title to the shore of the Mobile river was vested in the city of Mobile, and thereafter the control thereof was vested in the Mobile river commission, which was authorized to establish bulkheads, wharves, drydocks, and boom lines, and provide for their construction on licenses or permission granted by the commission to owners of upland on payment of certain fees. The commission thereafter authorized complainants to construct certain wharves in the river adjoining their land, and the city made no objection to the structures as erected for several years. Held, that the city’s failure to object, and regulation of such wharf, etc., after its construction, estopped it to deny complainant’s right to continue to occupy and use the same so long as the necessities of its business required.</p> <p>8. Same — Injunction.</p> <p>Where the owner of uplands abutting the Mobile river was authorized by the Mobile river commission to construct certain docks, wharves, etc., in the river opposite its land, in which the eily acquiesced for a number of years, such owner is entitled to an injunction to restrain the city from recovering the shores occupied by such wharves.</p>

<p>1. Tug and Tow — Liability of Tug for Injury of Tow.</p> <p>There is no presumption that an injury to a tow was due to the fault of the tug, but her negligence must be proved as a fact, and the proof must be such as to justify the inference, at least, that such negligence caused, or at least contributed to, the injury, before she can be held liable for the consequent damage.</p> <p>3. Same — Tow in Charge of Crew — Duty to Follow Tug.</p> <p>Where a tow is in charge of her own officers and' crew, the tug has the right to demand and expect the exercise by them of ordinary care and skill, and that the tow will follow the course of the tug, and conform to her movements, as is its duty, unless such course would manifestly lead it into danger.</p> <p>8. Same.</p> <p>When a tug with three barges in tow, in line, rounded a curve in Galop’s Canal, on the St. Lawrence river, the second barge, which was on a single line, 150 feet behind the first, failed to turn, and ran into a bank on the side of the canal, where there had been recent dredging, and over which the water was shallow, and was injured. The first barge, which was on a line of similar length, followed the tug in safety. The line of the bank was marked by stakes. Meld, under the evidence, that there was no fault on the part of the tug, either in making up the tow or in navigation, but that the injury was due to the fault of the master of the barge, in failing to be in a position where he could give proper attention to his surroundings and to follow the tug.</p>

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

<p>1. Salvage — Compensation—Elements of Awabd.</p> <p>The delay and injury to a vessel by grounding while on her way to another port for a supply of coal made necessary by her going out of her course on her voyage to tow a disabled ship to port are too remote- to be considered as elements in making a salvage award, even if the grounding was not due to her fault.</p> <p>8. Same — Value of Salvob’s Cakgo — Effect of JHabter Act.</p> <p>In awarding compensation to a ship for salvage services rendered while she was on a voyage to or from a port of the United States, under section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), the value of her cargo and freight are to be excluded from consideration.</p> <p>3. Same — Towing Disabled Steamship to Pobt — Amount of Compensation.</p> <p>The English steamship Yeoman, valued at §500,000, while on a voyage from Galveston to Liverpool, in February, with a cargo of cotton worth §900,000, sighted the Spanish steamship Ereza, 415 miles southeast of the Delaware capes, with a broken rudder and disabled, and at her request towed the Ereza to the Delaware breakwater on her way to Philadelphia. The weather was stormy and the sea rough, and the delay caused the Yeoman by the service, including the time for recoaling, was some eight or nine days. The Yeoman was a large and new ship of 7,379 tons gross register, and the service was well performed, without delay or injury to the Ereza or her cargo. The latter, on her arrival with cargo and freight, was of the value of $269,000. Held that, including compensation for expenses, delay, and the service itself, the Yeoman was entitled to an award of $20,000.</p>

<p>In Admiralty. Action against charterer for breach of charter party.</p>

<p>1. Shipping — Contract of Affreightment — Carriage of Goods on Barge.</p> <p>Tbe owner and master of a steamer engaged in making regular trips between river ports contracted to transport from one of sucb ports to another, for a stated charge, a locomotive engine. The.barge owned and used by him on such trips not being suitable, it was agreed that the owner of the engine should furnish a barge on which to load the same, which was to be returned by the steamer. The steamer issued a bill of lading in the usual form for the barge and engine, and lashed the barge to her side for the voyage. Held, that the contract was one of affreightment, and not of towage.</p> <p>2. Same — Loss or Damage to Cargo — Harter Act.</p> <p>Under the Harter Act of February 13, 1893, c. 105, § 3, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], a steamer which was seaworthy and properly manned, equipped, and supplied, carrying goods betwéen two ports of the United States, is not liable for loss or injury to such goods by reason of the barge on which they were loaded striking an obstruction in the river; the loss in such case resulting either from a danger of the river or from a fault or error in navigation or in the management of the vesseiT</p> <p>8. Towage — Injury of Tow — Negligence of Tug.</p> <p>Under the settled rule that a vessel engaged in a towage service is bound to the exercise of only ordinary care and skill, a steamer engaged in towing a barge is not liable for an injury thereto by reason of its striking a log which formed an obstruction in the channel of the river, but was not shown to have been there for any length of .time, and its presence was unknown to any officer of the steamer, and where at the time of the injury, which was at night, the mate, then in charge of the vessel, was properly stationed, and acting as lookout, and after he saw the obstruction all reasonable and proper measures were taken to prevent the injury.</p>

<p>1. Collision — Steam Vessels Crossing — Approaching with Cross-Signals.</p> <p>A tug and ferryboat on crossing courses, which continued to approach each other, each attempting to cross the other’s bows, and crossing the other's signals, until they were so close that a collision could not be avoided, both held in fault therefor. ■</p>

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

<p>On Demurrer to Complaint.</p> <p>This is an action commenced in the Supreme Court of the state of New York, and removed to this court, brought by the plaintiff against the defendant, to recover the sum of $58,027.49, with interest thereon from the 11th day of October, 1899, and which sum, it is claimed was illegally exacted and collected from the plaintiff by George R. Bidwell, as collector of the port of New York, through duress of goods, etc., as duties upon certain sugars brought from the port of Iloilo, situated in the island of Panay, in the Philippine Islands. The defendant demurs to the complaint upon the grounds that the same does not state facts sufficient to constitute a cause of action against the defendant, and that at the date when the merchandise mentioned in the complaint was shipped the Philippine Islands was a foreign country, within the meaning of the tariff laws of the United States.</p>

<p>1. Customs Duties — Date of Importation — Articles Arriving from PorTo Rico after Cession to United States.</p> <p>An article is not imported from a foreign country, within the meaning of the tariff laws, until it actually arrives at a port of entry of the United States; and sugar shipped from Porto Rican ports on April 8, 1899, when Porto Rico was a foreign country, but which did not arrive at the port of New York until April 17th, after Porto Rico had passed by treaty to the United States, was not subject to duty.</p>

<p>This is a demurrer to the complaint of the plaintiffs, who sue to recover $15,931.48 paid as duties on a cargo of sugar cleared from Porto Rico March 10, 1899, and entered at the port of New York, United States of America, at a quarter past 11 o’clock in the forenoon of April 11, 1899, and $19,493-51 paid as duties on another cargo of sugar cleared from Porto Rico April 4, 1899, and entered at the port of New York April 21, 1899. It is alleged these duties were illegally exacted by duress of goods, etc.</p>

<p>1. Treaties — Time op Taking Eppect — Exchange op Ratifications.</p> <p>The exchange of ratifications of a treaty with a foreign government Is an essential part of the transaction to render the treaty effective, since, until such exchange, which operates as a delivery, -the treaty is inchoate and subject to be defeated by the action of either contracting party.</p> <p>2. Customs Duties — Date When Porto Rico Ceased to be Foreign Country —Taking Effect op Treaty.</p> <p>The treaty with Spain by which Porto Rico was ceded to the United States, although signed December 10, 1898, and ratified by Spain (which was the last to ratify) on March 19, 1899, did not become effective for the purposes of the tariff laws until the exchange of ratifications, April 11, 1899, and all importations of merchandise arriving from Porto Rico at a port of entry of the United States prior to that date were subject to duty. The doctrine of relation has no application to the taking effect of a treaty, so far as relates to its effect on individual rights.</p>

<p>1. Charter Party — Construction—“Laid up for Repairs.”</p> <p>A yacht is “laid up for repairs,” within the provision of a charter party, in such case allowing a rebate from the charter money, where it is at rest, having some damage made good that in a material degree impaired its ability to pursue the voyage as a yacht, though the charterer may continue to eat and sleep and entertain friends on board.</p> <p>2. Same — Rebate from Charter Money.</p> <p>Under a charter party providing that if the yacht meets with an accident, and in consequence is laid up for repairs for a period exceeding seven days, there shall be a rebate from the charter money for the number of days it is so laid up for repairs, the rebate is not for the time in excess of seven days, but for the whole period it is laid up.</p>

<p>I. Foreign Corporations — Validity of Service — When Question fob Jury</p> <p>Whether a foreign corporation was maintaining an office and doing business within a state, when it was there served with summons, where it depends on questions of fact, is for the jury.</p> <p>8. Abatement — Effect of Piling Plea to Jurisdiction.</p> <p>The filing óf a plea in abatement attaching the jurisdiction of the court operates as an abandonment of any defense on the merits, at least in the discretion of the court; and where such plea was interposed after the same question had been determined adversely on a motion to quash the service, and apparently for delay only, the court will not exercise its discretion to relieve the defendant from its effect</p>

<p>1. Wharves — Hidden Obstruction Causing Sinking of Barge — Evidence Considered.</p> <p>Evidence held not to sustain libelants’ claim that a hidden obstruction existed at respondent’s wharf, which caused the sinking of libelants’ barge.</p>

<p>1. Debts Due United States — Priority—Suketies.</p> <p>Rev. St. §§ 3466-3468 [U. S. Comp. St. 1901, p. 2314], which provide that debts due the United States shall have priority in the administration of the estates of insolvents, does not give such priority against sureties of debtors, and, in the absence of statutory provision, the right to such priority does not exist.</p>

<p>1, Equity — Demurrer—Verification—Certificate of Counsel.</p> <p>Equity Rule 31 provides that no demurrer shall be allowed to be filed to any bill unless on a certificate of counsel that, in his opinion, it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay. HeldI, that the requirements of such rule could not be waived, and that a demurrer to a bill not supported by the certificate and affidavit required was fatally defective.</p>

<p>1. Removal of Causes — Jurisdictional Facts Must Appear prom Record.</p> <p>To give a federal court jurisdiction of a cause on removal, it must affirmatively appear from the petition for removal, or from the accompanying record, that the suit was duly filed, in the state court from which it purports to have been removed, and also, where no other ground of jurisdiction is shown, that the plaintiff and defendant were citizens of different states, both at the time the suit was instituted and when the petition for removal was filed.</p>

<p>1. Bankruptcy — Referee—Receiver—Compensation.</p> <p>Bankr. Act July 1, 1898, c. 541, §§ 40, 48a, 30 Stat. 556, 557 [U. S. Comp. St. 1901, pp. 3430, 3439], prior to its amendment, provided that referees should be entitled, as compensation, to a fee of $10 and to 1 per cent, commissions on sums to be paid “as dividends and commissions,” or one-half of 1 per cent, on the amount to be paid to creditors on confirmation of a composition. Section 40 declared that trustees should be entitled to receive a fee of $5 and such commissions on sums to be paid as dividends and commissions as should be allowed by the courts, etc. Heidi, that the word “dividends” included only such sums as were paid to creditors who had provable and allowed claims, and did not include sums paid by the trustee to satisfy fixed liens on real estate sold by him, though the property was sold free of all incumbrances, and the trustee paid such liens from the proceeds of the sale.</p>

<p>1. Navigable Waters — Piers—Injuries—Negligence—Evidence.</p> <p>In an action against the owners of a vessel to recover damages for injuries to plaintiff’s pier in a river, caused by a collision in the nighttime, evidence reviewed, and held, insufficient to establish negligence on the part of the branch pilot navigating the vessel in failing to discover the pier, which was unlighted, in time to avoid it.</p>

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

<p>In Admiralty. On exceptions to interrogatories annexed to libel.</p>

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

<p>Submitted on Exceptions to Ruling of Referee with Respect to Claim of Mahala J. Brodie.</p>

So far as essential to an understanding of the following opinion, the facts may be stated as follows: G. W. Berlin, being the owner of two parcels of land .known respectively as the “mansion house” and the “mill property,” mortgaged both of them to Mrs. Strough.

<p>1. Railroads — Foreclosure—Preference—Diversion of Earnings — Reimbursement.</p> <p>The gross earnings of a railroad company are reimbursed for a diversion to the benefit of mortgagees, so that the current operating expense creditors are not entitled, on account of the diversion, to a preference from the proceeds of the corpus of the. mortgaged property when sold on foreclosure, where the company borrows money on its notes, secured by its mortgage bonds, and the proceeds are passed to its general credit in the banks making the discount, and then checked out to pay current expenses, the money not being borrowed to pay any particular debts.</p> <p>2. Samis — Current Income — Sale of Mileage.</p> <p>Where a railroad company sells to brokers and others mileage in bulk, and at a discount, over other railroads, for whom it acts in issuing the same, the proceeds not accounted for to them, but used for its own purposes, are not part of its current income, as respects the rights of its current operating expense creditors and mortgagees relative to the questions of diversion from and reimbursement of its gross earnings.</p>

Petition for Writ of Mandamus. This is an application for a mandamus to the' Circuit Court of the United States for the Eastern District of Michigan, to compel the allowance of an appeal from its decree.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia.</p> <p>In Bankruptcy. On petition to superintend and revise, in matter of law, bankruptcy proceedings in the District Court for the Southern District of Georgia.</p>

<p>1. Injunction — Jurisdiction to Punish for Violation — Filing of Mandate from Appellate Court.</p> <p>Where a mandate from the Circuit Court of Appeals, directing the entry of a decree granting an injunction, has been filed in the Circuit Court, jurisdiction to punish for contempt for a subsequent violation of such injunction is in the Circuit Court, and not in the appellate court.</p>

<p>1. Injunction — Violation and Punishment — Mandate Directing Injunction.</p> <p>A defendant in a suit for infringement of a patent, who had given bond to respond in damages should complainant recover, cannot be charged with criminal liability for contempt of court for offering to sell the infringing article after a mandate has been issued from the appellate court directing a decree enjoining further sales, where such decree has not been entered, and it is not shown that defendant had actual notice that an injunction was directed. So far as civil rights or liability are concerned, a party is charged with knowledge of all orders and proceedings in a cause; but he cannot be charged criminally on a presumption, and in such case defendant might reasonably suppose that the obligation of his bond continued until final decree was entered.</p> <p>2. Same — Damages for Violation — Proceedings for Contempt.</p> <p>Damages.sustained by one party by reason of acts of the other, claimed to have been in violation of an injunction, cannot be recovered by proceedings for contempt.</p> <p>3. Same — Acts Constituting Violation.</p> <p>The issuance of circulars by a defendant advertising for sale articles which have been adjudged infringements of complainant’s patent, and against the sale of which an injunction had been ordered, does not in itself constitute a breach of the injunction.</p>

In Bankruptcy. On question certified by the referee,' namely, whether a certificate of membership in the Milwaukee Chamber of Commerce, held by the bankrupt, Fred Klein, is entitled to exemption under section 2982, subd. 19, Rev. St. Wis. 1898.

<p>1. Defective Ship — Personal Injury — Negligence.</p> <p>Libelant was injured by tbe fall of a boom of the steamer from the breaking of the iron goose-neck, by which the boom was fastened to the mast. The ship was but a year old, and the iron was large, heavy, galvanized, and painted, and would have supported a weight of 150 tons had not the material been defective. There was at the time no additional weight on the boom, and the iron had been inspected the day before, and thereafter used for lifting without any accident. The broken faces of the iron gave no appearance of previous break or crack, but showed internal fault in the iron, not discoverable by exterior examination. Held, that the ship was not chargeable with negligence.</p>

<p>In Admiralty. Cross-libels for collision.</p>

<p>1. Collision — Damages Recoverable — Cost of Survey.</p> <p>The entire expense of a survey, made necessary in part by damage due to stress of weather, and in part by the damage caused by a collision, should not be charged to the vessel adjudged in fault for the collision.</p>

<p>1. Collision — Overtaking Steam Vessels — Evidence Considered.</p> <p>Conflicting evidence considered, and held not to sustain the claim of libelants that in a collision between their tug and a steamer the latter was the overtaking vessel) and in fault, but to preponderate in favor of the claim of the steamer that she was overtaken and run into by the tug.</p>

<p>1. Injury to Employe — Defective Hawser on Tug — Inspection.</p> <p>A tug is liable for injury to an employé tbereon from tbe breaking of its bawser by tbe swell of a passing steamer bringing an additional strain on tbe line, it being over a year old, and in a bad condition, as would have been disclosed by a careful inspection, but not being frayed or worn on tbe outside so as to disclose its condition on tbe casual inspection given it by the master.</p>

<p>In Equity. On motion for appointment of receiver.</p>

<p>In Admiralty. Action for charter hire.</p>

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

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

<p>1. Patents — Invention—New Combination of Old Elements.</p> <p>An arrangement of parts in combination so as to produce a new and useful result shows invention, although such parts separately were well known and in common use, where such combination, for the purpose intended, was not obvious to persons of ordinary mechanical skill.</p> <p>2. Same — Construction of Claims.</p> <p>The effect of the words “substantially as described” in a claim of a patent is not to limit the claim to the precise construction shown in the specification, nor to deprive the patentee of the benefit of the doctrine of equivalents, where his invention is of a primary character.</p> <p>B. Same — Infringement—Garment Eastenee.</p> <p>The Steel patent, No. 652,407, for a garment fastener for attachment to a corset, and designed to hold down the skirt band and belt so as to give the waist an elongated appearance in front, was not anticipated, but the device performs a new function and shows invention. Claims 1 and 3 construed, and -held infringed.</p>

In Equity. The bill of complaint in this action is filed for the purpose of enjoining and restraining the'defendants from directly or indirectly making, constructing, vending, counterfeiting, or imitating an invention claimed to belong to the complainants, and alleged to be covered and protected by letters patent No. 589,342, issued to the Acetylene House Lighting Company, on application of Edward J. Dolan, as assignee, by mesne assignments dated August 31, 1897, and…

In Equity. Suit for infringement of letters patent Nos. 627,898 and 627,900, for pivotal trucks for electric street cars, granted to George M. Brill June 27, 1899. On final hearing.

<p>1. Patents — Suit for Infringement — License Agreement Precluding Maintenance.</p> <p>A patentee made an agreement, for a consideration paid, to assign his patent for the term of an extension to complainant, and bound himself to make every effort to secure such an extension “under the direction” of complainant, and to forfeit a sum of money if he failed to prosecute his application “as directed by” complainant. His application for an extension was opposed by defendant, which employed counsel to defeat it. Afterward a contract was made between' the patentee and defendant, hy which the latter was licensed for a royalty during the term of the extended patent, and it withdrew its opposition, and the extension was granted. Less than a month before the extended term of the patent expired, complainant brought suit against defendant for its infringement, and obtained a decree with an order for an accounting. On the hearing before the master the facts in relation to the contract between complainant and the patentee and its terms were shown, and defendant filed a supplemental bill based thereon for a dismissal of the suit. Helé, that such evidence was sufficient to warrant a finding that complainant was a party to the license contract with defendant, or at least had knowledge of it, and that its failure to object or to notify defendant of its interest therein was a ratification of the same, which precluded it from maintaining a suit in equity for infringement.</p>

<p>In Admiralty. Petitions for limitation of liability for a collision.</p>

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

<p>Rule for a New Trial. Also Rule for Judgment Non Obstante Veredicto on Reserved Point.</p>

<p>1. Jurisdiction of Federal Courts — Amount in Dispute — Suit for Injunction.</p> <p>In a suit by a member of a nonstock corporation to restrain alleged illegal and ultra vires action by its governing body, the amount involved, for jurisdictional purposes, is the value of the rights sought to be protected; and a federal court has jurisdiction where it is shown by the bill that the mismanagement complained of, if not restrained, will result in the creation of debts, and may result in the loss of the corporation’s property, which largely exceeds in value the jurisdictional amount.</p> <p>2. Corporations — Stockholder’s Suit — Amendment of Charter.</p> <p>A legislature, under power reserved in the grant, may lawfully amend the charter of a corporation by enlarging its powers in harmony with the purpose of its organization, by consolidating other corporations with it and repealing their charters, and by changing the mode of electing its trustees; and a stockholder, or member where it is a nonstock corporation, cannot maintain a suit in equity, based on such legislation, or the action of the trustees in procuring and acting on the same, to restrain such action, where it is not shown that his contract or property rights are destroyed or impaired.</p>

<p>1. Railroads — Mortgages—Foreclosure—Parties.</p> <p>In a suit by the holder of a mortgage given by a corporation to foreclose the same, stockholders and bondholders of the corporation may be permitted to intervene. Gregory v. Pike, 67 Fed. 837, 845, 15 C. C. A. 33, 41, explained and applied.</p> <p>2. Same — Answer by Corporation — Authority of Counsel.</p> <p>Where, in a suit to foreclose a corporation mortgage, the complainant would be entitled to a default and a decree pro confesso, if no answer had been filed, any question as to the authority of the executive officers of the corporation to employ a solicitor to answer, confessing the bill, is immaterial. It seems that, ordinarily, an answer under the seal of a corporation, by one of the principal officers, cannot be questioned.</p> <p>8. Same — Construction of Railroad — Overpayment—Objection—Estoppel.</p> <p>Where, at the time a railroad was constructed, no objection was made to the contract by which the company’s stocks and bonds were issued in payment therefor, it could not subsequently be objected, after a long acquiescence, in a suit to foreclose a mortgage securing the bonds, that the actual cost of construction was only two-thirds of the par value of the bonds issued in payment therefor, and that the bonded indebtedness secured by the mortgage should therefore be scaled.</p> <p>4. Same — Acquisition of Other Line — Powers.</p> <p>Where the charter of a railroad company authorized it to construct its main line between certain termini, and also “to build branches or extend its line into one or more towns,” the railroad was empowered to purchase a railroad already constructed, and appropriate as a branch line; and it was not limited to acquiring branch lines by building them.</p> <p>5. Same — Mortgages—After-Acquired Property'.</p> <p>Where a railroad mortgage, in describing the property, contained the language, “and also all rights, powers, privileges, and franchises relating to or useful for the said railroad or branch, including the right to operate and maintain the same, whether now held or acquired by the mortgagor,” such mortgage covered a line subsequently purchased by the mortgagor, which was an appropriate branch for the main line mortgaged.</p> <p>6. Same.</p> <p>Where, in a suit to foreclose a railroad mortgage, it appeared that the railroad at the time of foreclosure was capable of earning $100,000 annually, applicable to interest or dividends, which would pay 4 per cent, on $2,500,000, the upset price was fixed at $2,300,000.</p>

<p>1. Public Land — Actions—Courts—Jurisdiction.</p> <p>Since the disposition of public lands under the acts of Congress is exclusively vested in the Land Department of the government, which must primarily determine the rights of claimants, courts have no jurisdiction to determine controversies between claimants of such land, the legal title to which has never passed from the United States by the issuance of a patent.</p> <p>2. Same — Cutting Timbee — Injunction.</p> <p>Where, in an action to determine conflicting claims to public land, it appeared that the claims of both complainant and defendants to timber thereon were made in good faith and on colorable grounds, and that the defendants threatened and proposed to cut and remove the timber, it was proper for the court to restrain such removal until the land had been patented by the United States, though, by reason of the fact that it had not been patented, the court was without jurisdiction to determine the adverse claims of the parties thereto.</p>

<p>1. Contracts — Performance—Extensions of Time — Consent—Findings.</p> <p>Plaintiff and defendant agreed jointly to perform certain work in the construction of a lighthouse for the United States and share profits and losses. Plaintiff was to contribute everything pertaining to the ironwork, and defendant agreed to furnish the concreting, masonry, carpentering, and painting. When the caisson was nearly in place if was destroyed by a derelict hurled against it by the waves, after which the lighthouse was constructed on another site. An extension of time to complete the contract was obtained, to which plaintiff consented and, after a second extension had been obtained by defendant, plaintiff continued his work with knowledge thereof. Held1, that such facts warranted a finding that plaintiff also consented to the second extension.</p> <p>3. Same — Partners.</p> <p>Where plaintiff and defendant agreed to enter into a contract with the United States for the construction of a lighthouse, defendant agreeing to furnish the ironwork and plaintiff the concreting, masonry, carpentering, and painting, and it was agreed that if there was a profit over and above the cost defendant, in whose name the contract was taken, should pay plaintiff one-half of such profits, and if there was a loss plaintiff should be chargeable with one-half thereof, plaintiff and defendant were partners in the undertaking.</p> <p>3. Same — Agreement—Construction—Act of God.</p> <p>Where a contract between plaintiff and defendant for the construction of a lighthouse for the United States provided that they should share the profits and losses equally, and declared that each party should contribute particular parts of the work, a provision that each party should be responsible for any accident or damage resulting from his operation or neglect applied only to losses accruing to third parties, and did not include a loss of the entire work by an act of God.</p>

<p>1. Shipping — Demurrage—Assumption of Liability by Consignee.</p> <p>Respondent contracted in England for two cargoes of coal, to be delivered alongside tbe vessels at New York, and discharged at the rate of 1,000 tons per day. The sellers chartered vessels for carrying the coal from libelants, the charter parties containing the usual cesser clauses providing that the charterers’ liability should cease when the cargo was shipped, and that the owner should have a lien on the cargo for demurrage, and also requiring the cargoes to be discharged by the consignees. Bills of lading were issued, which provided that all the terms and conditions of the charter parties were incorporated therein, and drafts for the price of the coal, with bills attached, were presented to and paid by respondent before the arrival of the vessels. Held¡ that, while not bound thereto by the contract of purchase, respondent, by paying the drafts and accepting the coal under the bills of lading, was bound, as between itself and libelant, by the provisions of the charter parties, and became responsible for the discharge, of the vessels and for demurrage, where such discharge was not made at the stipulated rate.</p> <p>2. Sale — Construction of Contract — Passing of Title.</p> <p>A contract made by cable for the purchase of a specified number of tons of coal to bé shipped by the sellers from England is not one of absolute sale of any specified coal, so as to pass the title at once, but is executory, and the title did not pass in any event until the coal was laden for shipment.</p> <p>3. Shipping — Demurrage—Authority to Bind Cargo.</p> <p>Where, by a contract for the purchase of coal, it was to be shipped by the sellers from England, and delivered to the purchaser at New York, the sellers were authorized to contract for the carriage of the coal either as owners from whom the title had not passed or as agents for the purchaser, and by such contracts to subject the coal to a lien for demurrage.</p> <p>4. Same — Estoppel to Deny Liability.</p> <p>Where, pending the discharge of cargoes of coal, the consignees admitted their liability for demurrage, provided any was due, which, however, they denied, and the shipowners, in reliance thereon, allowed the cargoes to be discharged without asserting their lien, the consignees were estopped to defend a suit for demurrage on the ground that another was the proper party to be sued therefor.</p> <p>5. Same — Evidence Considered — Responsibility for Delay in Discharging.</p> <p>Evidence held to show that delay in the discharge of cargoes was not due to any fault or lack of equipment on the part of the vessels, but to causes which entitled them to recover demurrage therefor.</p>

<p>1. Aliens — Chinese—Exclusion—Criminal Law — Indictment—Deportation Decree — Evidence.</p> <p>A deportation decree rendered by the United States commissioner in proceedings instituted before him to determine the status of a Chinese person alleged to have been illegally brought into the United States is relevant and competent evidence of the status of' such person, and was sufficient to justify a grand jury in finding an indictment against defendant for willfully bringing such person into the United States, in violation of Chinese Exclusion Act May 6, 1882, c. 126, 22 Stat. 61 [U. S. Comp. St. 1901, p. 1307], as amended by Act July 5, 1884, c. 220, 23 Stat. 117 [U. S. Comp. St. 1901, p. 1310.]</p>

<p>1. Marine Insurance — Action on Binding Slip — Jurisdiction op Court op Admiralty.</p> <p>An accepted application for marine insurance, or binding slip, constitutes a contract of insurance which will support an action at law, and a court of admiralty has jurisdiction of an action thereon to recover for a loss.</p> <p>2. Same — Representations Avoiding Contract — Change in Date op Application.</p> <p>An application for marine insurance on a cargo, made on a printed form of the company, contained a provision that the insurance was subject to the conditions of the printed forms of policy then in use by the company, which, among other provisions, insured ships “lost or not lost.” The application was dated November 4th, and presented to the company on that day by a broker representing the applicants, and left for inquiry respecting rates. It contained a statement that the ship had not sailed. December 12th, applicants having received a letter dated December 3d, stating that the ship would clear on that day, their broker applied to have the insurance made binding; and the company’s representative changed the date of the application to December 12th and signed the binding slip. The ship sailed December 4th, and was wrecked and the cargo lost on the 7th, but such fact was not known to the insured. Held, that the statement in the application that the ship had not sailed was not a warranty or representation that she had not sailed on December 12th, but that she had not on November 4th, when the application was dated and presented to the company, and that, having made no inquiry whether she had since sailed, the company must be deemed to have regarded the fact as immaterial, in view of the form of policy used, and was bound by the contract, the'ship not being at the time overdue.'</p>

<p>In Admiralty. Action against charterers to recover demurrage.</p>

In Admiralty. Suit in rem against the steamship Energía, to recover damages for breach ■of an executory contract, entered into at San Francisco, by which the steamship was chartered to libelant by her owners to carry a cargo of lumber from Puget Sound to Australia. Heard on exceptions, alleging that the facts set forth in the libel are insufficient to entitle the libelant to a lien upon the steamship upon which to maintain a suit in rem. Exceptions overruled.

<p>In Admiralty. Cross-libels for collision.</p>

<p>1. Bankruptcy — Allowance of Claims — Preferences Which must be Surrendered.</p> <p>Under the law as it stood prior to the amendment of February 5, 1903, all of the indebtedness of a bankrupt to a particular creditor existing-at the beginning of the four-months period preceding his bankruptcy is' to be treated as one claim, and any payment made and received during such period, and while the debtor was. insolvent, even in good faith fly both parties, constitutes a preference, and must be surrendered before the balance of the claim or any part of it can be allowed.</p> <p>2 Same.</p> <p>In cases arising since such amendment, the rule will be different.</p>

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

<p>1. Shipping — Time Charter — Liability of Ship to Charterer for Acts of Officers.</p> <p>Under a time charter which provides that the owners shall provide and pay the officers and crew, and the charterer shall provide and pay for the coal, and that the captain, although appointed by the owners, shall be under the orders and direction of the charterer as regards employment, agency, or other arrangements, the charterer has no right of action against the vessel for the value of coal paid for by it as having been bought by the master, but alleged not to have been delivered to the vessel, or to have been misappropriated by the vessel’s officers. In their dealings with respect to the coal, the master, engineer, and crew are to be regarded as agents of the charterer.</p>

<p>On Motion for Rehearing of a Motion to Set Aside an Attachment.</p>

<p>1. Collision — Vessels at Anchor — Improper Anchorage.</p> <p>A vessel anchoring when light in a part of the anchorage grounds allotted to loaded vessels, which fact, however, was unknown to her captain, who was new to the port, is not thereby precluded from recovering damages for a collision which occurred without other fault on her part, where the anchorage grounds were not crowded, and she was permitted to remain in the same place for 10 days without objection from any one.</p> <p>3. Same.</p> <p>The duty is imposed on a vessel last anchoring to give another, previously anchored, safe anchorage room; and, if a collision results from her failure to do so, she is liable for the damages caused.</p> <p>8. Same — Safe Berth.</p> <p>A safe berth for anchorage, which a later vessel is required to allow to one previously anchored, should be construed to mean one in which, taking into consideration all the exigencies likely to arise, either by reason of the character of the harbor, the condition of the weather, or the season of the year, there should be no danger of collision, and all doubts should be resolved with a view of securing safety, having in view the possible contingencies which might arise; and especially so where there was ample anchorage space.</p> <p>4c Same.</p> <p>A vessel anchoring without necessity in too close proximity to one previously anchored is ’ not in position to require the latter to incur extraordinary risks during a storm in order to avoid a collision.</p> <p>■5. Same — Evidence Considered.</p> <p>Evidence considered, and held to establish that a collision between two vessels at anchor, one of which was light and the other loaded, was due solely to the fault of the latter in anchoring and remaining during a high wind in too close proximity to the other, which was previously anchored, when there was ample space within the anchorage grounds.</p>

This cause comes here upon writ of error to review a judgment of the Circuit Court for the District of Minnesota in favor of the defendant in error, which was the plaintiff below, upon an order sustaining its demurrer to the answer of the defendants. This action, which was commenced February 7, 1902, was brought to recover a balance due upon a promissory note given by the testator of plaintiffs in error to defendant in error, dated July 2, 1894, and due July 2, 1899.

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

<p>1. Cancellation of Instruments — Grounds—Unconscionable Agreement.</p> <p>An agreement by an employs, in consideration of bis employment, that the employer shall have the benefit of all inventions made by him while so employed, and that he will keep the same forever secret, if required by the employer, is not unconscionable, nor against public policy, and the employs is not entitled to have the same canceled on that ground after he has left the employment.</p>

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

<p>1. Patents — Infbingement—Casket Handles.</p> <p>The McCarthy patent, No. 478,168, for improvements in casket handles, claim 1, construed, and held not infringed by the device shown in the Klein patent, No. 559,898.</p>

In Equity. Suit for infringement of letters patent No. 450,216 for a pocket safe for coins, granted to Fred. H. Brown April 14, 1891. On final hearing.

<p>1. Patents — Infringement—Abrading Shoe for Car Wheels.</p> <p>The Hoffman patent, No. 605,056, for an abrading shoe for truing up car wheels, held valid and infringed.</p>

<p>1. Patents — Infringement—Manufacture of Infringing Articles.</p> <p>A patent secures to the patentee the exclusive right to manufacture, as well as to sell and use, the patented article, and its manufacture by another without license constitutes an infringement, although no sale is made.</p> <p>2. Same — Sales Books.</p> <p>The Lawson patent, No. 406,845, for a manifold sales book, claims 4 and 5 construed, and held infringed.</p>

<p>Í. Salvage — What Constitutes Salvage Service.</p> <p>Any service rendered to a vessel in peril or distress which in any measure conduces to its safety is in the nature of a salvage service, and is to he compensated as such, unless the claimant pleads and proves a binding contract that the work done should be paid for at all events; and such service is none the less a salvage service because the peril apprehended did not befall, or because the labor expended was insignificant, and performed without actual risk, such considerations affecting only the amount of the compensation, and not the principle on which it is awarded.</p> <p>& Same — Compensation—Services Considered.</p> <p>The steamship Apache, a new vessel, worth from $200,000 to $350,000, and carrying a cargo valued at $50,000, was injured in a collision in the night when entering Charleston Harbor, having a large hole knocked in the side, which caused one hold to immediately fill. She was beached by her master about 500 feet away from the main channel inside the jetties, and within the harbor limits, but about 5 miles from the docks. In the morning two tugs went to her assistance. They assisted in pumping her out, and at high tide made an unsuccessful attempt to pull her off into deep water. About five days later, a patch having been procured and put on, she was again pumped out and floated, and then taken to the city by the tugs. She was at no time in serious danger of sinking, having six water-tight bulkheads, five of which were uninjured; nor did she settle in the sand. The weather was mild, and the sea calm, the highest velocity attained by the wind being 30 miles an hour for a short time only. She was protected from the open sea by the jetties. During the five days the tugs remained and were used in taking the passengers to the city, going on errands, and doing such service as was required, but initiating no plans for relieving the ship, and rendering no services which involved danger. They were not equipped for wrecking purposes, but were engaged in towing, were worth from $20,000 to $30,000 each, and their ordinary hire was worth from $75 to $100 per day. Held, that they were entitled to compensation as salvors, but, in view of the fact that the ship was not in great peril, and that the service was not dangerous nor arduous, an allowance of $1,500 each was as large as could justly be made.</p> <p>8. Same — Suit to Recover for Services — Exorbitant Demands.</p> <p>An award for salvage services will not be abated because of the exorbitant demands of the salvors made before suit, where their libel demanded no particular sum, and they did not attempt to hold the vessel, but permitted her to go, and agreed to accept a bond to.be fixed by the court</p>

<p>1. Bankruptcy — Arrest of Bankrupt — Exemption—Time.</p> <p>Bankr. Act July 1, 1898, § 9a, subd. 2, 30 Stat. 549, c. 541 [TJ. S. Comp. St. 1901, p. 3425], provides that a bankrupt shall be exempt from arrest on civil process issuing from a state court except on a debt or claim from which his discharge in bankruptcy would not be a release, “when in attendance on a court of bankruptcy, or engaged in the performance of a duty imposed by the act.” General Order No. 12 (18 Sup. Ct. vi) provides that the bankrupt shall receive protection against arrest, to continue until final adjudication on his application for discharge unless suspended or vacated by order of court. Held, that the bankrupt’s exemption from arrest was not restricted to particular occasions when his physical attendance in court was required, or he was actually engaged in performing some required duty, but that the court was authorized to release him from arrest on his furnishing bond to obey the orders of the court, and not depart from the jurisdiction during the continuance of such exemption.</p>

<p>1. Clerk of Circuit Court — Commissions—Proceeds of Property Sold.</p> <p>Rev. St. § 995 [U. S. Comp. St. 1901, p. 711], requires “moneys” only which are paid into court or received by the officers thereof to be deposited with a depositary so as to entitle the clerk to commissions thereon under section 828 [U. S. Comp. St. 1901, p. 635], and does not affect the power of the court to permit payment for property to be made in other forms as may be most appropriate or convenient to the parties; and where a bidder is permitted to make a deposit with the master in the form of a check or certificate of deposit, and to pay for the property by crediting the amount on the decree in his favor, neither the deposit nor the purchase money is required to be deposited in court.</p>

<p>1. Unfair Competition — Copying Manufactured Article — Imitation of Dress.</p> <p>Any manufacturer has the right to copy an article made by another which is not protected by patent, but he has not the right to so imitate it in shape, design, color, and number as to deceive purchasers of average intelligence and cause them to mistake his product for that of the prior manufacturer.</p> <p>9. Same.</p> <p>Complainant for many years made and sold coffee mills of different sizes, each having a distinguishing number, but all of a distinctive shape, design, and color by which they became known to the public and acquired a high reputation and a large sale. Defendant, later, began the manufacture of mills of exactly the same pattern, admittedly copying those of complainant in shape and design, and even in coloring, the only distinction being in the numbers used, which were also similar, and in the initials and address of the maker, which were not conspicuous. It was shown that purchasers had in fact been deceived, and had bought and used defendant’s mills supposing them to have been made by complainant. Held, that such action constituted unfair competition, against which complainant was entitled to an injunction.</p>

<p>1. Jurisdiction of Federal Court — Suit by Stockholder — Alignment of Parties.</p> <p>In a suit by a stockholder of a corporation of the same state against such corporation and a foreign corporation to charge the latter as trustee because of acts which as majority stockholder it caused the former to do in fraud of its other stockholders, the domestic corporation is not a party in the same interest as complainant, and cannot be aligned with him for the purpose of giving a federal court jurisdiction on the ground of diversity of citizenship.</p> <p>2. Same — Indispensable Parties.</p> <p>To a suit by a stockholder in a domestic corporation to charge a foreign corporation as trustee on the ground that as the owner of a majority of the stock of the domestic corporation it caused such corporation to do acts which were in fraud of its other stockholders, the domestic corporation is an indispensable party, and a federal court is without jurisdiction of such suit where complainant and such corporation are citizens of the same state.</p>

<p>1. Judgments — Case Pending on Appeal — Res Judicata.</p> <p>Plaintiff brought suit in the state court to restrain defendant from enforcing a certain city ordinance fixing the maximum rates which plaintiff should charge for water supplied to patrons in defendant city, on the ground that the passage of the ordinance was a violation of plaintiffs contract rights. A demurrer was filed to the bill, which was overruled, and a final decree of injunction rendered. On appeal the judgment was reversed, and the trial court directed to sustain the demurrer and permit further proceedings. On remand of the case the bill was dismissed, and a final decree rendered, from which plaintiff appealed, in order that the Supreme Court might render a final decision, from which a writ of error might be prosecuted to the Supreme Court of the United States. Pending such appeal plaintiff sued in the federal court to restrain the city from enforcing such ordinance, on the ground that the rates fixed were unreasonable, and operated as a taking of complainant’s property without due process of law. Held, that the prior suit, while still pending, was not res judicata or a bar to the second.</p> <p>8. Same — Public Service Corporation — Waterworks—Rates—Establishment — Reasonableness—Injunction Pendente Lite.</p> <p>Where, in a suit to restrain the enforcement of a city ordinance establishing maximum water rates, which the city was authorized to fix under legislative authority, the bill and affidavits of plaintiff waterworks corporation showed that the rates fixed were so low that, if enforced, plaintiff would barely be able to pay operating expenses, it was entitled to an injunction restraining the enforcement of such ordinance pendente lite.</p>

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

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

<p>1. Shipping — False Bill of Lading — Power of Master to Bind Ship.</p> <p>Under the rule of the federal courts a master has no power to bind’ the owners or the ship by a false bill of lading, whether the falsity is in relation to the amount of goods shipped or the date of the shipment, and this rule is not changed by the provisions of the Harter act (Act Feb. 13,1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]). Such act subjects a person guilty of a violation of its provisions respecting bills of lading to a fine, which is made a lien on the vessel, but does not make the vessel liable for the damages occasioned thereby.</p>

In Bankruptcy. On application for discharge. To the Honorable George B. Adams, Judge of the District Court of the United States in said District: I, the undersigned, referee in bankruptcy, to whom as special commissioner the issues of specifications herein were duly referred, to ascertain and report the facts, respectfully report: “That the said issues were brought on for hearing, and I was attended upon said hearing by the counsel for the opposing creditor and the counsel…

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

<p>1. Marine Insurance — Premiums—Payment to Broker.</p> <p>• Defendant negotiated an open policy of marine insurance with plaintiff, through certain brokers, to whom plaintiff paid a commission. The premiums were paid monthly by defendant to the brokers, but the latter failed to pay over the sum to plaintiff. This course of dealing was continued -for some time, and various letters were written by plaintiff to the brokers, requesting payment, and threatening that if payment was not made to notify the insured that payments to brokers would not be acknowledged. Held, that plaintiff recognized the brokers as its agent for the collection of the premiums, and hence was not entitled to recover payments made to such brokers, and not remitted.</p> <p>2. Same — Estoppel.</p> <p>Where an insurer permitted the insured to pay monthly premiums on open marine policies to brokers by whom the insurance was effected, and received such premiums from the brokers without objection, it was estopped from thereafter resorting to insured for premiums paid to the brokers which they had failed to pay over, though the original arrangement did not contemplate collection of premiums by such brokers.</p>

<p>1. Collision — Tows Meeting in Hudson River — Failure to Keep Long Tow in Line.</p> <p>A steamer engaged in towing about 70 canal boats down tbe Hudson river, arranged in 14 or 15 tiers on hawsers, and extending to a length of 2,200 feet, which, although having two helper tugs, allowed the tail of the tow to swing close to the eastern shore, while she was on the western side of the river, thus occupying practically the entire channel, was in fault for a collision between one of the tows near the end of the line and a meeting boat which was being pushed up the east side of the channel by a steam canal boat. The latter, which had started to pass the steamer and tow before knowing of its extraordinary length or position across the river, - held not in fault where, after discovering the danger, she stopped and reversed, and did all that was possible to avoid the collision.</p>

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

<p>1. Monopolies — Anti-Trust Law — Combination in Restraint of Interstate Commerce.</p> <p>A combination between all the lumber manufacturers of a city to raise and maintain the price of lumber to local consumers, and to refuse to sell lumber to consumers who purchase any part of their supply from outside mills, some of such mills supplying the local market being situated in another state, is not in violation of the Sherman anti-trust law, as in restraint of interstate commerce, its effect on such commerce being indirect and incidental only.</p>

<p>1. Admiralty — Delivery of Cargo — Shortage—Evidence.</p> <p>A ship received 151,886 eases of petroleum to he transported to Japan. The consignee only acknowledged receipt of 151,661. The cargo was tallied out of the steamer by her second and third officers and three of her sailors, whose tally showed a shortage of 753 cases, which was manifestly incorrect. When the discrepancy was discovered, the master requested a recount from the consignee, which was declined, on the ground that it could not be conveniently had, and in the meantime part of the cargo was reshipped. It was shown that no part of the cargo was used on the steamer, and there was no opportunity for abstraction or loss during the voyage, and that all of the cargo received was delivered except six cases, purchased for the steamer’s use. Eeld,, in the absence of other evidence, such facts established a prima facie case of delivery of the entire cargo.</p>

<p>1. Equity — Sufficiency of Bill — Eight of Plaintiffs to Maintain Suit.</p> <p>A bill to recover property which was given by a decedent in her lifetime to defendant cannot be maintained where the only right shown in plaintiffs is based on a compromise agreement between them and the executors and devisees of the donor, by which the latter consented that the executors should pay over and convey to plaintiffs one-half of all property and sums which were devised for the use and benefit of said devisees, and it is not shown that the property in suit is any part of that • so devised.</p>

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

<p>1. Appeal — Dismissal on Application of Appellant — Reopening of Case in Trial Court.</p> <p>A request from the judge of the trial court, which entered an interlocutory decree for an injunction and accounting in a patent suit, from which decree an appeal is pending in the Circuit Court of Appeals, asking the return of the record that a supplemental bill in the nature of a bill of review may be permitted to be filed by defendant, based upon an examination of the showing of newly discovered evidence offered in support of the application, is sufficient to warrant the dismissal of the appeal without prejudice, as the decree appealed from was not final. Roemer v. Simon, 91 U. S. 149, 23 L. Ed 267, discussed.</p>

<p>1. Bankruptcy — Validity of Lien — Pledge.</p> <p>A bank made a loan to a steel company, taking in pledge, as security therefor, and for any other debt which might be subsequently contracted, a quantity of steel billets, which were conveyed to it by bill of sale, set apart on. the premises of the company, and marked with signs as the bank’s property. A part of the note was paid, and another loan was subsequently made within four months prior to the company’s bankruptcy. Before that time, the signs indicating the bank’s ownership had been removed without its knowledge, but it caused them to be replaced after the making of the second loan, and before the bankruptcy. Held, that such removal did not impair its lien as security for its entire claim as against the bankrupt or its receiver or general creditors.</p>

<p>1. Patents — Suit for ’Infringement — Interrogatories in Bill.</p> <p>A complainant in a suit for infringement of a patent cannot compel the defendant to state, in answer to interrogatories propounded by the bill, how many of the alleged infringing articles it has made or sold, when the infringement is denied in' the answer, having no right to such information until infringement and the right to an accounting shall have been established. And the same rule applies in a suit for an accounting and recovery of royalties under a license, where the answer denies that the article inquired about is covered by the license agreement.</p>

<p>1 Patents — Persons Bound by — Decree for Infringement — Violation of Injunction.</p> <p>Pending a suit for infringement of a patent against a corporation, its president resigned bis office, but continued tbe business and the manufacture of tbe article in controversy after it had been adjudged, an infringement, and an injunction bad been issued and served upon him as president of tbe company, merely operating in a different name, and slightly changing the name of the article. Held, that the adjudication was conclusive against him, as well as the corporation, and that he was guilty of contempt for violation of the injunction.</p>

<p>1. Temporary Injunction.</p> <p>Oh the hearing of a motion for a preliminary injunction, held that, under the particular circumstances disclosed, the motion should be granted, in order to preserve the status quo, without any present expression of opinion or decision on the merits.</p> <p>(Syllabus by the Court)</p>

<p>In Admiralty. Action for failure to deliver cargo.</p>

<p>1. Customs Duties — Reciprocity Teeaty — Place oe Exportation.</p> <p>Where it was proved that absinthe imported was manufactured in Pontarlier, France, the fact that the bill of lading was dated at Basle, Switzerland, the point of shipment, did not justify a finding that the consignment was not exported from France, and therefore not entitled to admission at reduced rates of duty, under the reciprocity treaty between France and the United States.</p> <p>2. Same — Brandies and Other Spirits.</p> <p>Absinthe is a liqueur within the French reciprocity agreement, providing for reduced duties on brandies and other spirits.</p>

<p>L COLLISION — TUG WITH Tows AND ANCHORED SCHOONER — FAILURE TO SOUND Fog Signals.</p> <p>A tug passing down New York Bay to sea at night with a number of dumpers in tow helé in fault for a collision between one of the dumpers and an anchored schooner, on the ground that she was passing through the anchorage grounds; and the schooner also helé in fault for failing to sound fog signals as required by the rules (article 15, subd. “d,” Act June 7, 1897, c. 4, 30 Stat. 99 [U. S. Comp. St. 1901, p. 2880]), the evidence showing that she was near the limits of the anchorage grounds next the channel, and that there was such fog that her single light could not be seen from the tug until she was within 500 feet.</p>

In Bankruptcy. This is an application by the First National Bank of Baldwinsville, N. Y., to revoke the discharge of the above-named bankrupt, granted on or about the 1st day of December, 1902.

<p>1. Removal of Causes — Separable Controversy — Joint Action for Tort.</p> <p>An action against a railroad company and certain of its servants to recover for the death of a person, alleged to have been caused by the reckless, wanton, willful, and malicious acts of such servants while engaged in the duties of their employment, where the complaint alleges no facts to charge the company with participation in such acts of its servants, involves a separable controversy; the causes of action and the measure of damages recoverable against the company and its codefendants being different, and the cause is removable by the company, where the requisite diversity of citizenship exists.</p>

<p>1. Equity Jurisdiction — Federal Courts — Adequate Remedy at Law.</p> <p>Under Rev. St. § 723 [U. S. Comp. St. 1901, p. 583], which provides that “suits in equity shall not he sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law,” a federal court is without jurisdiction to determine a suit to quiet title to a mining claim, submitted on bill and answer, where the bill alleges possession in complainant, but the answer denies such allegation, and alleges possession in defendants.</p> <p>2. Same — Remedy Given by State Statute.</p> <p>A state statute cannot confer on a federal court jurisdiction of a suit in equity to quiet title to real estate of which defendant is in possession.</p>

<p>1. Collision — Steamer and Schooner — Excessive Speed in Fog.</p> <p>A steamer which entered a dense fog bank on a river at a speed of 10 miles an hour was clearly negligent,, and must be held in fault for a collision with a schooner, which resulted.</p> <p>2. Same — Fog Signals — Weight of Testimony.</p> <p>The testimony of witnesses on a steamer that they heard only a single fog signal from a schooner in a fog, and with which the steamer shortly after came in collision, indicating that she was on the starboard tack, when she was in fact on the port tack, and approaching the course of the steamer, is not sufficient to establish such fact as against the testimony of persons on the schooner, one of whom was disinterested, re-enforced by that of two other disinterested witnesses, who were in the immediate vicinity, that the schooner gave the proper signal of two blasts.</p> <p>8. Damages — Wrongful Death.</p> <p>An award of $1,600 damages, made for the death of a boy 18 years old, leaving infant brothers and sisters in part dependent upon him, and $900 for the death of a boy of 15, leaving only a father, not dependent, is reasonable.</p>

<p>In Bankruptcy.</p>

<p>In Admiralty. Cross-libels for collision.</p>

<p>1. Pleading — Afiidavit of Defense — Sufficiency.</p> <p>Under the rule that an affidavit of defense is sufficient if it sets forth a substantially good defense, giving to its averments a reasonable intendment, an averment in a statement of claim that on a certain date there was a balance due plaintiffs upon an agreed settlement of account is sufficiently answered by an affidavit of defense categorically denying that on such date there was an agreed settlement of account, which must be construed to mean that on such date no such agreed settlement was in existence; the ambiguity, if any, as to the date of the settlement having its origin in the declaration.</p> <p>2. Same.</p> <p>An affidavit of defense to a statement of claim on an account for goods sold and delivered, setting up the contract under which the goods were purchased, and its breach by plaintiffs, considered, and held sufficient.</p>

<p>On application by the importer to review the decision (G. A. 4,769) of the Board of General Appraisers affirming the classification of the collector of customs at the port of New York.</p>

<p>1. Customs Duties — Classification—Arrowroot Starch.</p> <p>Arrowroot in the form of starch, produced from arrowroot tubers by a process of manufacture, is not within the provision in the free list of Tariff Act July 24, 1897, c. 11, § 2, par. 478, 30 Stat. 195, c. 11 (U. S. Comp. St. 1901, p. 1680), for “arrowroot in its natural state and not manufactured,” but is dutiable as “starch,” under paragraph 285 of said act (30 Stat 173 [U. S. Comp. St. 1901, p. 1653]).</p>

<p>On application of importers to review a decision of the Board of General Appraisers, which affirmed the classification of the collector of customs at the port of New York.</p>

<p>1. Customs Duties — Classification—Copper Matte — Regulus.</p> <p>Copper matte, an article containing lead and copper, and produced in smelting ores, which is not strictly an ore itself, and which is shown to he known commercially and scientifically as copper regulus, is not dutiable under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 181, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1644], for “lead-bearing ore of all kinds,” but is free of duty as “copper, regulus of,” under Pree List, § 2, par. 534, of said act, 30 Stat. 197 [U. S. Comp. St. 1901, p. 1682],</p>

<p>1. Customs Duties — Classification—Lace Neckweab.</p> <p>Held, that the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 314, 30 Stat. 178 (U. S. Comp. St. 1901, p. 1659), “articles of wearing apparel of every description, including neckties or neckwear * * * not specially provided for,” does not constitute such a special provision for lace neckwear as to remove it from the scope of the provision in paragraph 339 of said act (Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662]), for “wearing apparel * * * made wholly or in part of lace, * * * not elsewhere specially provided for.”</p> <p>2. Same.</p> <p>The words “neckwear” and “neckties” in paragraph 314, Tariff Act July 24, 1897, are not terms of commercial designation.</p>

<p>Appeal from a decision of the Board of General Appraisers, which reversed the assessment of duty by the collector of customs on certain merchandise imported at the port of New York. Note G. A. 3700 and G. A. 4837. See Bayersdorfer v. U. S. (C. C.) 122 Fed. 969; Knowles v. U. S. (C. C.) 122 Fed. 971; Weil v. U. S. (C. C.) 124 Fed. 1006; and U. S. v. Shea, 114 Fed. 38, 51 C. C. A. 664.</p>

Appeal by the importers, Leopold Weil & Bros., from a decision of the Board of General Appraisers (In re Weil, G. A. 4065), which overruled their protest against the assessment of duty by the collector of customs on certain merchandise imported at the port of New York. The merchandise consists of long-haired Russian calfskins, assessed for duty under the provision in paragraph 437, Schedule N, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 192 (U. S. Comp.

<p>1. Shipping — Damage to Cargo — Negligent Stowage.</p> <p>Charterers of a vessel held liable, on the ground of negligent stowage, for damage done to a cargo of goatskins caused by a leakage of brine from casks of citron, which, as shown by the evidence, usually leaked, and in close proximity to which the skins were stowed.</p>

<p>L Admiralty — Suits in Rem — Grounds of Recovery.</p> <p>A suit in rem against a ship cannot be maintained to recover for damage to a tug which was hired and used by the master in a towage service, on the ground that he was bound to return the tug in as good condition as when received, usual wear excepted; the right of action being against the owners on the contract, and not one based on any fault of the ship.</p>

<p>1. Collision — Vessel at Anchor — Steamship Out of Fairway.</p> <p>The steering gear of the steamship El Cid became disabled in New York Bay as she was going out to sea, and she drifted with the tide upon the steamship Himera, lying at anchor, and a collision resulted. Held1, on the evidence, that the Himera was within the anchorage grounds, and that the El Cid was in fault for the collision solely because she was out of the fairway; the case being otherwise one of accident which could not have been foreseen, or its results averted.</p>

<p>In Equity. On motion to remand to state court.</p>

<p>In Bankruptcy, On motion to vacate order staying execution against the bankrupt.</p>

<p>Appeal from a decision of the Board of General Appraisers, reversing the classification by the collector of customs at the port of New York of merchandise imported by Markt & Co.</p> <p>The reasons for the board’s action appear from its opinion (G. A. 3635), as follows:</p> <p>Sharretts, General Appraiser. The merchandise covered by this protest is ' fine copper-wire gauze. It was assessed for duty at 35 per cent, ad valorem, under Tariff Act Aug. 28, 1894, c. 349,’'§ 1,- Schedule C, par. 177, 28 Stat. 520, as a manufacture of metal. • The appellants claim it is entitled to free entry under the provision of paragraph 407 . (section 2, Free List, 28 Stat. 538) for “bolting cloths, especially for milling purposes, but not suitable for the manufacture of wearing apparel.” The board has made as careful an investigation regarding the proper classification of this material as the circumstances will permit. There seems to be some doubt touching the precise time when the merchandise came into use in this country. One of the witnesses testified, however, that he had been familiar with it for two years and a half, or prior to August 28, 1894. All of the witnesses agreed in their testimony that it was known as bolting cloth, or as copper-wire bolting cloth, and that it was made expressly for milling purposes, and was fit for no other use. This fabric seems to be a substitute for silk bolting cloth, the two being made of corresponding fineness of mesh. On the evidence, we find as a fact: (1) That the merchandise is commercially known as bolting cloth; that it was manufactured especially for milling purposes, and is not suitable for the manufacture of wearing apparel; (2) that it is a manufacture of metal; and we hold, in law, that the claim of the appellants is well founded. Paragraph 407 does not limit the free entry of bolting cloth to that which is composed of silk, but provides for bolting cloths presumably made of different materials, which term, we think, is broad enough to include all merchandise known as bolting cloth, not fit to be manufactured into wearing apparel, and made expressly for milling purposes. It is manifest that the intent of Congress was to favor the milling industry of this country by giving them free of duty the cloth used for bolting purposes; and we do not think that we can properly discriminate between bolting cloth made of silk and that which is made of other material. We sustain the protest, and reverse the collector’s decision.</p>

<p>Appeal by the United States from a decision of the Board of General Appraisers, which reversed the decision of the collector of customs in the assessment of duty on certain merchandise imported at the port of New York by H. Robinsom</p> <p>The decision of the board in Re Robinson, G. A. 4241, is as follows.</p> <p>Wilkinson, General Appraiser. The goods are leather gloves, which were assessed with the embroidery duty of 40 cents a dozen pairs, under Act July, 1897, c. 11, § 2, Schedule N, par. 445, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1677], It is claimed that the gloves are not “stitched or embroidered with more than three single strands or cords,” and that they are not liable, therefore, to the additional duty for embroidery. The embroidery is in three rows. On the back of the glove each row presents the appearance of three-plait crochetwork, but this effect is produced by the needle with only one cord or strand of thread, as is shown by the stitching through and on the inside of the glove. Eight competent experts were examined at the hearing, and we .find from their unanimous testimony upon the official samples that the gloves described in the schedule are not stitched or embroidered with more than three single strands or cords, and we sustain the claim that they are not liable to additional duty for embroidery. The decision of the collector is otherwise affirmed.</p>

<p>Appeal by Fleming & Co. from a decision of the Board of General Appraisers, which affirmed the decision of the collector of customs at the port of New York. See G. A. 3266.</p>

<p>1. Customs Duties — Classification—Pepper Shells.</p> <p>Shells of pepper, which, when ground, make a low grade of black pepper, are within the provision for the entry free of duty of “pepper, white or black, * * » when unground,” in Free List, par. 667, Tariff Act July 24, 1897, c. 11, § 2, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688].</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>In Error to the District 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 Eastern District of Tennessee.</p>

<p>Appeal 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 Western District of Tennessee.</p>

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

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

<p>Appeal from the-District 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 Wisconsin.</p>

<p>Original Petition in Bankruptcy to Review and Revise an Order of the District Court of the United States for the Southern District of Illinois.</p>

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

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

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

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

On application by the United States for a review of the decision of the Board of General Appraisers, which reversed the assessment of duty by the collector of customs at the port of New York.

<p>In Bankruptcy. On certificate of referee concerning ownership of fund.</p>