Volume 125 — Federal Reporter

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

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

In Equity. Suit for infringement of letters patent Nos. 511,559 and 511,560, for electrical transmission of power and an electrical motor, granted to Nikola Tesla, December 26, 1893. On final hearing.

<p>1. Patents—Anticipation—Stocking Supporters.</p> <p>The Parramore patent, No. 629,391, claims 1, 2, and 3, for a stocking supporter, consisting of duplicate suspension tapes and a single hanger adapted to he detachably fastened to the front of the corset, are void for anticipation in the prior art, and especially by the Banfield patent, No. 197,587, and the Andrews patent, No. 550,551.</p>

<p>1. Patents—Invention—Manufacture of Tubing.</p> <p>Tbe Patterson patent, No. 581,251, for tbe manufacture of tubing, covering tbe method of making butt-weld pipe by charging tbe plates into the furnace from the rear, and withdrawing them from the front by means of tongs or other suitable device, which also draws them through the welding bell, is void for lack of patentable invention. The advantages of back charging in the manufacture of such pipe, as was practiced in making lap-weld pipe, were previously known, and it was practiced by at least one method. It was merely a part of the steady evolution and development of the art in mechanical means, not involving invention.</p>

<p>1. Patents—Infringement—Talking Machines.</p> <p>The Johnson patent, No. 679,896, for an improvement in sound-boxes for talking machines, the essential feature of which is a spring-mounting for the stylus-bar, comprising a thin piece of tempered steel having its ends twisted in opposite directions, construed, and held not Infringed.</p>

<p>1. Patents—Anticipation in Analogous Art—Cobe-Making Machines.</p> <p>The Grant patent, No. 513,998, for a machine for making cores, is void for anticipation by machines for making tiles; tile making and core making being so closely analogous that the mere adaptation of a machine for one purpose to the other, by the enlarging or diminishing of some of the parts, does not constitute patentable invention.</p>

<p>1. Bankruptcy—Jurisdiction op Courts op Bankruptcy.</p> <p>When a general assignment for the benefit of creditors is made by a debtor, the same being an act of bankruptcy, the right immediately arises in his creditors to have his estate administered under the bankruptcy law: and, where the enforcement of this right is demanded by a proper proceeding within four months after its inception, no action by any court In any suit brought after the commission of the act of bankruptcy can defeat it, without the consent of the bankruptcy court, whose jurisdiction is exclusive, and, on the making of the adjudication, relates back to the act of bankruptcy.</p> <p>8 Same—Priority of Jurisdiction of State Court—Appointment of Receiver.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 3a, subd. 4, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797, which makes the appointment of a receiver because of insolvency an act of bankruptcy, a state court cannot, by the appointment of a receiver on such ground, obtain priority of jurisdiction to administer the property of a debtor, to the exclusion of a court of bankruptcy.</p> <p>8. Same—Proceeding by Trustee to Recover Property.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], as amended .by Act Feb. 5, 1903, c. 487, 32 Stat. 800, a court of bankruptcy has jurisdiction of a proceeding by a trustee to recover property from an assignee to whom it was conveyed by the bankrupt, for the benefit of creditors, within four months prior to the bankruptcy.</p> <p>4. Same—Priority of Jurisdiction of State Court—Suit Commenced within Four Months.</p> <p>In general, an adjudication of bankruptcy vests the bankruptcy court with exclusive jurisdiction to administer the property of the bankrupt, as against any state court which may have obtained possession of such property through proceedings instituted within four months prior to the adjudication, and it is immaterial that the proceedings in the state court were for the enforcement of valid liens not affected by the bankruptcy act</p> <p>5. Same—Sale of Property by Assignment.</p> <p>A sale of property by an assignee for the benefit of creditors vests the purchaser with no title as against the trustee in bankruptcy of the assignor subsequently appointed on an adjudication based on the assignment, where such purchaser has made no payment for the property.</p>

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

<p>L Internal Revenue—Changing Contents of Package—Addition of Coloring Matter to Distilled Spirits.</p> <p>The provision of Rev. St. § 3455 [U. S. Comp. St. 1901, p. 2279], which subjects to forfeiture every barrel, with its contents, which has been stamped or marked to show that the contents have been duly inspected or the internal revenue tax thereon has been paid, if such barrel contains “anything else” than the contents which were therein when said barrel was so stamped or marked, is plain and unambiguous, and must be literally .construed. While the government would be estopped to claim a forfeiture of distilled spirits because of the addition of water thereto after the barrels or casks containing the same had been stamped, where the reduction was made in accordance with the regulation of the department permitting the same, such estoppel is not broader than the regulation, and the addition of a coloring matter to such spirits, such as caromel, is a violation of the statute, which subjects the liquor to forfeiture.</p>

<p>In Admiralty. Suit for loss of cargo through collision.</p>

<p>1. Contracts—Person Entitled to Sue for Breach—Undisclosed Principal.</p> <p>The real principal for whose benefit a contract was made is entitled to avail himself of the contract, even though the other party had no knowledge that there was an undisclosed principal.</p> <p>¶ 1. See Principal and Agent, vol. 40, Cent. Dig. §§ 502, 503.</p> <p>2. Same—Contract for Carriage of Cattle—Rights of Assignee.</p> <p>A contract for the carriage of cattle on certain vessels is assignable by the shipper, and the assignment vests the assignee with the right to sue thereon in his own name, notwithstanding a provision therein that no part of the space contracted for shall be sublet without the consent of the shipowner.</p> <p>8. Same—Construction—Vessels “All Sailing. ”</p> <p>A contract by a steamship company for the carriage of cattle on certain specified vessels, “all sailing” during certain months, imports a warranty that all the vessels named will sail during such months.</p> <p>4 Same—Parol Evidence to Vary.</p> <p>Where such contract makes no distinction between the several vessels named, it cannot be changed by parol evidence to except one from such warranty.</p> <p>5. Same—Rights of Undisclosed Principal—Equities Existing retween Apparent Principals.</p> <p>Where an undisclosed principal comes in and avails himself of the contract, he must do so subject to existing equities between the apparent principals; and a claim for demurrage existing in favor of a steamship company against a shipper with whom a contract for further shipments is made may be set off against similar claims arising against the company under such contract, although the latter was in fact made by the shipper on behalf of another who made the shipments thereunder, and in whose favor the claims arose.</p>

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

<p>1. Exchanges—Property in Quotations—Right to Protection in Equity.</p> <p>Conceding that the Board of Trade of the City of Chicago has a property right in the quotations of prices made on its exchange, based on legitimate transactions, it is not entitled to invoke the aid of a court of equity for the protection of its right in its quotations under evidence showing that something like 95 per cent, of the contracts made on its exchange are for the sale of commodities for future delivery, and are closed immediately after the transaction by a settlement of. differences between its members, permitted by its rules, and made with its knowledge and consent at the close of each day’s business.</p> <p>2. Sales fob Future Delivery—Validity—Intention of Parties.</p> <p>Whether a contract for the purchase and sale of a commodity for future delivery, made on an exchange, is legitimate and valid, or merely a wagering transaction, depends on whether it was the intention of the parties at the time that there should be an actual delivery of the commodity, and payment therefor. Such an intention is not necessarily negatived by the fact that the contract is subsequently closed out without delivery, by the payment of differences; but where it is the habitual practice and custom of the members of the exchange to so settle contracts immediately after they are made, extending to almost the entire bulk of the transactions of the exchange, it must be presumed that such was the intention when the contracts so settled were made, and that no actual sale and delivery was contemplated.</p> <p>¶2. See Gaming, vol. 24, Cent. Dig. §§ 22, 23, 25.</p>

Appeal by Henry Voight, surveyor of customs at the port of Cincinnati, Ohio, from a decision of the Board of General Appraisers (G. A. 4296) on certain merchandise imported by Mihalovitch, Fletcher & Co. The merchandise in controversy consists of the sour, wild red cherries known in Germany as “Kirsehen Sauer,” imported in casks, in a surrounding fluid containing more than 10 per cent, of alcohol, that was added for the purpose of resisting fermentation and decay.

<p>Indictment for Murder. On offer to file plea of guilty of manslaughter.</p>

<p>I. Insurance Commissioner—Qualification.</p> <p>Section 1 of tbe Delaware act of March 24, 1879, entitled “An Act in relation to Insurance Companies,” as amended March 17, 1881, 16 Del. Laws, 354, in providing that the Insurance Commissioner “shall not be a director, officer or agent of, or directly or indirectly interested in any insurance company except as an insured,” creates a legal inability in one while holding the office of Insurance Commissioner to be or act as agent of an insurance company of another state for the receipt of service of process in Delaware.</p> <p>(Syllabus by the Court)</p>

<p>1. Indictment—Motion to Quash—Error in Caption.</p> <p>An error in tbe caption of an indictment in stating the term at which it was found is not ground for quashing the indictment, the caption being amendable by the record.</p> <p>2. Use of Mails to Defraud—Indictment.</p> <p>A count of an indictment charging the defendant with using the mails for the purpose of carrying out a fraudulent scheme is not rendered bad by further unnecessary allegations relating to the consummation of the scheme; such averments being disregarded as surplusage.</p> <p>¶ 2. Nonmailable matter, see note to Timmons v. U. S., 30 C. C. A. 79.</p> <p>3. Same.</p> <p>An indictment under Rev. St. § 5480, as amended [U. S. Comp. St 1901, p. 3696], for using the mails for the purpose of carrying out a fraudulent scheme devised by defendant, must charge that the letters, etc., alleged to have been deposited in the mails were so deposited for the purpose of carrying out or executing such scheme, that being a material part of the offense, which cannot he supplied by intendment</p> <p>4. Same — Number of Offenses Charged in One Indictment — Statutory Limit.</p> <p>Each letter put into the post office in pursuance of a scheme to defraud to he effected by the use of the mails constitutes a separate and distinct offense; and as, by the express provisions of the act of Congress, but three offenses committed within the same six calendar months can be joined in one indictment, a count which charges the defendant with having deposited within specified dates “a large number of letters, circulars, and booklets, to wit, 500 letters, 500 circulars, and 500 booklets, addressed to various persons whose names and addresses” are unknown, is bad. United States v. Loring (D. C.) 91 Fed. 881, dissented from.</p> <p>5. Indictment—Joinder of'Offenses.</p> <p>Under Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720], counts for using the mails to defraud, in violation of section 5480, and for conspiracy to commit such offense, under section 5440 [U. S. Comp. St 1901, p. 3676], where based upon the same transaction, may be joined in one indictment.</p>

<p>I. Criminal Law—Indictment of Corporation—Necessity of Preliminary Complaint.</p> <p>In tbe prosecution of a corporation, tbe appropriate first step is the finding of an indictment, a preliminary complaint and hearing being unnecessary.</p>

<p>1. Costs—Security by Nonresident Plaintiff—Delay in Making Application.</p> <p>A nonresident plaintiff, who may be required by defendant to give security for costs under the statute, will not be relieved from such requirement by a federal court because of defendant’s delay until after answer in moving for the security, where no special prejudice to plaintiff is shown to have resulted.</p> <p>¶1. See Costs, vol. 13, Cent Dig. § 466.</p>

<p>1. Bankruptcy—Abuse of Proceedings to Delay Creditors—Dismissal of Petition for Discharge.</p> <p>A bankrupt who filed a petition for discharge, but took no further steps in the matter for a year thereafter, is chargeable with an abuse of the proceedings for the purpose of delaying creditors; and, on proper application by a creditor, his petition for discharge will be dismissed, and an injunction staying proceedings by the creditor for the collection of his debt vacated.</p>

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

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

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

<p>1. Contracts—Modification by Parol.</p> <p>According to the modern view, the rule which prohibits the modification of a written contract by parol is a rule of substantive law, and not of evidence.</p> <p>2. Same—Effect of Admission of Evidence Without Objection.</p> <p>The fact that parol evidence to modify a written contract was introduced without objection in an action on such contract does not affect the right and duty of the court in instructing the jury to pass upon the competency and legal effect of such evidence, especially in a federal court, where it is the settled rule that a written contract cannot be reformed in an action at law.</p> <p>8. Same—Contract for Decorating House.</p> <p>Written contracts for the repair and decoration of a house and furnishings cannot be modified in an action thereon by the contractor by evidence of a parol agreement, made at the time the contracts were signed, that the work should be done to the satisfaction of defendant’s wife, or defendant would not be required to accept and pay for the same, no suen condition being expressed in the writings.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Appellant unsuccessfully sought to hold appellee for infringement of the first, third, and fifth claims of letters patent No. 324,261, August 11, 1885, to Johnston, appellant’s assignor. The circuit court ruled, in substance, that the claims, if valid, were limited by the prior art to the precise structure shown in the drawings and described in the specification, and that, so construed, they were not infringed by appellee’s device.</p> <p>The claims in suit and a part of the specification read as follows:</p> <p>“This invention has reference to that class of ruffling or gathering attachments (for sewing machines) now most commonly used which have a reciprocating blade to form the goods into plaits or folds; but it is in part applicable to other rufflers or gatherers.</p> <p>“The invention consists, first, in new means for regulating the stroke of the ruffler-blade. In letters patent 259,643, granted to me June 13, 1882, a ruffier is described in which the blade is reciprocated by a pin moving between two stops, and the stops are made adjustable toward and away from each other by one movement of an adjusting device, so that the said blade moves farther forward in making full than in making scant gathers.</p> <p>“In letters patent No. 264,038, granted to me September 5, 1882, an improvement upon or modification of the former invention is described, the stops being formed by the walls of a groove of varying width cut in the periphery of a cylinder. By turning the cylinder the reciprocating pin acts in different parts of the groove, so that the lost motion is varied according to the different widths of said parts.</p> <p>“The present new means for regulating the stroke may be considered as an improvement upon or modification of both the former ones described in said patents.</p> <p>“Instead of the pin a contact device, pivoted or otherwise supported so that it can be turned, is interposed between the stops, and the adjustment is effected by turning the said contact device. The part to which the stops are fastened or in which they are formed may be reciprocated and communicate its motion to the part which carries the contact device, or the part carrying the adjustable contact device may be reciprocated and impart its motion to the other. Both forms will be shown. This construction of a contact device, adjustable by turning and interposed between stops, can be used not only when the said contact device and stops are such that the ruffling-blade is advanced farther in making full than in making scant ruffles, but also when this is not the case, the effect depending upon the shape of the contact device and stops.</p> <p>“Another improvement consists in combining, with two levers for communicating motion from a moving part of- the sewing machine to the rufflerblade, adjusting means carried thereby for altering the stroke of said blade when one or both said levers is supported and turned upon a fixed center or pivot, and when the adjusting means are so constructed and arranged that the ruffler-blade is advanced farther in making full than in making scant ruffles or gathers. * * *</p> <p>“It may be observed that there is no novelty, broadly, in placing the means for regulating the stroke upon the levers for operating the ruffler. The only novelty, so far as that feature is concerned, resides in the placing there of the particular kind of regulating means indicated, and in the adapting or constituting of such means to operate in that position. * * *</p> <p>“It is evident that modifications may be made in details without departing from the spirit of the invention, and that parts of the invention may be used separately. * * *</p> <p>“What I claim is:</p> <p>“(1) In combination with a ruffler-blade operating mechanism comprising two reeiprocatory parts, stops upon one of them, and an interposed pivoted contact device carried by the other of said parts, and adjustable with respect to both stops to vary the amount of lost motion, and also to a less extent the forward limit of the blade’s motion, so that said blade is advanced farther in making full than in making scant gathers, substantially as described.</p> <p>“(3) The combination, with the ruffler-blade and ruffler-frame, of the two levers pivoted at a common point to the ruffler-frame, stops on one lever, and an adjustable interposed contact device carried by the other, substantially as described.</p> <p>“(5) The combination, with a ruffling device or blade, two reeiprocatory parts, and stops on one of said parts, of a journaled or pivoted contact device interposed between the stops and adjustable by turning on its journal or pivot, substantially as described.”</p> <p>The prior art is illustrated in the record by the following patents: 120,173, October 24, 1871, to Toof; 125,230, April 2, 1872, to Toof; 130,592, August 20, 1872, to Perkins; 139,064, May 20, 1873, to Johnston; 146,005, December 30, 1873, to Johnston; 157,462, December 8, 1874, to Sievers; 158,834, January 19, 1875, to Darby; 181,879, September 5, 1876, to Toof; 200,431, February 19, 1878, to Burgess; 211,679, January 28, 1879, to Wilson; 229,877, July 13, 1880, to Elliott; 231,844, August 31, 1880, to Onderdonk; 233,025, October 5, 1880, to Rowley; 235,235, December 7, 1880, to Harris; 238,086, February 22, 1881, to Carter; 245,471, August 9, 1881, to Farwell; 258,939, June 6, 1882, to McMullen; 259,511, June 13, 1882, to Edgecomb; 259,643, June 13, 1882, to Johnston; 260,633, July 4, 1882, to Amaden; 263,332, August 29, 1882, to Garretson; 264,038, September 5, 1882, to Johnston; 264,456, September 19, 1882, to Hamilton; 266,544, October 24, 1882,- to Smith; 269,781, December 26, 1882, to Giddings; 271,890, February 6, 1883, to McCaslin; 272,427, February 20, 1883, to Grotz; 280,926, July 10, 1883, to Griest; 290,478, December 18, 1883, to Sackett; 293,090 and 293,091, February 5, 1884, to Sackett; 296,740, April 15, 1884, to Goodrich; 311,119, January 20, 1885, to Griest.</p>

In Equity. Suit for infringement of letters patent No. 347,778, for a safety brake for elevators, granted to Thomas W. Eaton, Frederick H. Prince, and Joseph H. Fivesey, August 24, 1886. On final hearing.

<p>1. Statutes—Constitutionality—Iowa Insurance Law.</p> <p>Iowa Code, §§ 1754, 1755, prohibiting combinations between fire insurance companies doing business in the state in relation to rates, agents’ commissions, or the manner of transacting business in the state, and providing for the revocation by the state auditor of the permits of any companies found to have violated such prohibition, are not in violation of the provisions of the state Constitution prohibiting the granting of special privileges and immunities, and requiring that when they can be made applicable all laws shall be general and of uniform operation throughout the state.</p> <p>2. Equity Jurisdiction—Enjoining Enforcement of Invalid Statute.</p> <p>A court of equity, state or federal, has jurisdiction to enjoin the enforcement of an invalid law when its enforcement would cause loss of business, expense and hardships to complainant, and result in irreparable injury.</p> <p>¶ 2. See Injunction, vol. 27, Cent. Dig. § 156.</p> <p>3. Constitutional Law—Liberty to Contract—Iowa Insurance Statute.</p> <p>The provisions of Iowa Code, § 1754, which make it unlawful for two or more fire insurance companies doing business in the state to enter into any agreement as to the amount of commissions to be allowed agents or as to the manner of transacting fire insurance business in the state, are invalid as depriving insurance companies of the liberty to contract secured to all persons by the fourteenth constitutional amendment and of the equal protection of the laws.</p>

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

<p>In Admiralty. Suit in rem against tug to recover for loss of tow.</p>

<p>1. Shipping—Liability op Charterer por Demurrage—Delay Due to Strike.</p> <p>A charter party required the charterer to dock and load the vessel, and do the harbor towage and the towage to sea, and specified the lay days for loading. It mutually excepted “the act of God, * * * strikes, combinations or any extraordinary occurrence beyond the control of either party, * * * dangers and accidents of the seas, rivers and navigation,” and also contained a specific clause that “in the computation of the days allowed for delivering the cargo to the ship at port of loading shall be excluded any time lost by reason of strikes.” On arrival at the port of loading a strike was in progress among the longshoremen and stevedore’s men, and many vessels were waiting to load, making it impossible to load for a number of days, and delaying the work after it was commenced. Held, the delay beyond the time allowed for loading being entirely attributable to the strike, that the charterer was not liable for demurrage on that account, but that for a delay in towing the vessel out to sea, after the weather was such as to permit, it was liable for demurrage.</p> <p>¶ 1. Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.</p>

<p>In Admiralty. Action on policy of marine insurance.</p>

<p>1. Mortgages—Right of Mortgagee to Insurance.</p> <p>A mortgagee is entitled to the proceeds of insurance effected by the mortgagor, where a contractual obligation exists requiring the mortgagor to insure for the mortgagee’s benefit.</p>

<p>1. Sales—Rescission by Seller—False Representations.</p> <p>It is the settled law in Pennsylvania that the insolvency of a purchaser of goods, and his knowledge of it when he made the purchase, not communicated to the seller, are not alone sufficient to invalidate the sale or to entitle the seller to rescind after delivery of the goods, but, to avoid the sale, there must have been, in addition, conduct which reasonably involves a false representation. Under such rule, a promise by the insolvent purchaser to pay cash for the goods on completion of delivery, and a breach of such promise, does not entitle the seller to rescind. Such a promise is implied in every sale, unless other terms of payment are agreed upon, and expressing it in words does not so change the transaction as to render it fraudulent.</p>

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

<p>Suit to Quiet Title to Mining Claim.</p>

<p>1. Bankruptcy—Liens—Right to Enforce Valid Attachment.</p> <p>A creditor wbo obtained a valid lien by attachment on property of a bankrupt more than four months prior to the bankruptcy is entitled to prosecute the action to judgment, and a sale of the attached property thereafter.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 331.</p>

<p>1. Removal op Causes—Separable Controversy.</p> <p>An action in which the petition charges concurrent acts of negligence against each of two defendants does not present a separable controversy.</p> <p>2. Same—Motion to Remand—Issue as toJurisdictional Facts.</p> <p>A statement of jurisdictional facts, such as the citizenship of the parties, in a petition' for removal, is sufficient, prima facie, to establish such facts for the purpose of removal; but such statements may be traversed by the plaintiff by a pleading in the nature of a plea in abatement, in which case the court may receive evidence on the issue. A cause will not be remanded, however, merely on the filing of an affidavit by plaintiff controverting such statements.</p> <p>¶ 1. Separable controversy as ground for removal of cause to federal court, ■see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.</p>

Appeal by the United States from a decision of the Board of General Appraisers, which reversed the classification of the collector of customs at the port of New York on importations by Baldwin Bros. & Co.'

<p>In Equity. On motion by defendant to dismiss for want of prosecution, and by the successor in office of the deceased plaintiff for revival of the suit.</p>

<p>In Bankruptcy. On certificate from referee and petition to extend time for filing objections to discharge.</p>

<p>Appeals from the Circuit Court of the United States for the Western District of Missouri.</p> <p>For opinions below, see 116 Fed. 944, and 121 Fed. 608.</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>Alexander Rodgers was adjudged a bankrupt on May 8, 1901, and on that day the Chicago Title & Trust Company was appointed receiver, and subsequently trustee, of the property and estate of the bankrupt, and took possession of the estate, including the property hereinafter mentioned. The bankrupt was a dealer in seeds, having his place of business upon the premises Nos. 220 to 230 Johnson street, in the city of Chicago. These premises, consisting of the south half of the basement, the north half of the south half of the second, third, fourth, fifth, and sixth floors, with the right of way to the south elevator from the railroad platform by way of the east door on platform, and by way of entrance on alley, and the right of way to go upon the elevator, and the right to ship in and out by wagons by the front door, by chute, and by the rear entrance, as described, were leased by him from one Haseall from January 10, 1899, to April 30, 1902, at a monthly rental of $200. On November 28, 1899, he also leased until April 30, 1902, the south one-fourth of the fifth and sixth floors, at an additional rental of $50 per month. So that after that date he had the whole of the south half of the fifth and sixth floors, the north half of the south half of the second, third, and fourth floors, and the whole of the south half of the basement; the first floor being vacant, and used as a passageway. A wooden partition separated the south half from the north half of the floors of the building, the latter being occupied by another tenant. The entrance was from the west front of the building on Johnson street to the main floor, and thence stairways at the south end of the building ran from each floor to the floor above and to the basement. The front of the south half of the second floor was partitioned into an office, and was occupied by the bankrupt. There were also machinery and appliances and a freight elevator for the handling of seed, and on certain floors were bins with cleaning machinery for cleaning and grading seed. The seed was usually received from railroad cars into the basement; thence elevated to the top floor, If to he dumped or cleaned; and was usually received and shipped in bags, most of the business being in car-load lots of about 250 bags, and when stored on any floor was usually in car-load lots. The usual pile or lot was made up in two tiers of bags lyipg horizontally, the ends of the bags of one tier abutting the ends of the bags of another, with five or six bags piled up in front against the two tiers. These piles were about 16 feet long and 6 to 7 feet high. The building was known as “mill construction”; that is, the timbers were exposed posts supported by joists and girders. The various floors were known as divisions from the sixth down, A, B, C, D, E, and F; the latter being the basement. Depending from the ceiling girders or joists were wooden signs on which were painted “Div.,” with the letters “A” “B,” etc., indicating the floor, and “Sec.,” with a number thereafter, as 1, 2, 3, etc., to indicate a section, so called, of the floor. The floors were large open floors, 50 by 90 or 60 by 100 feet, and had no bins for the separate storage of seed, and had no partitions dividing the floor space. The boundary lines of “sections” were imaginary lines, the signs being put up by Kodgers upon his leasing the premises; and there was no division of sections on the second floor, where a large part of the seed now in controversy was located.</p> <p>The National Storage Company is a corporation, incorporated under the laws of the state of Illinois on December 29, 1886. It was authorized to carry ■on a general warehouse business, to receive for safe-keeping or storage general merchandise, grain, etc.; to take charge of and perform the duty of paying freight charges, duties, etc., on bonding, receiving, landing, hauling, and delivering such property deposited, or intended to be deposited with such corporation; to issue receipts or certificates for goods and personal property to the owner or owners thereof when such goods and personal property “have been received, are on the premises, or under the control of the said corporation at the time of issuing such receipts or certificates.”</p> <p>On August 25, 1900, the National Storage Company and the bankrupt entered into the following written agreement:</p> <p>“Proposal for Warehousing.</p> <p>“Office of National Storage Company,</p> <p>“Chicago, Ills., August 25th, 1900.</p> <p>“Mr. Alexander Rodgers,</p> <p>“#220 Johnson Street, Chicago, Illinois.</p> <p>' “Dear Sir: 1. The National Storage Company hereby proposes to issue its storage warrants to the order of yourself or to such order as the acceptor hereof may hereafter direct, upon personal property consisting in part of Field Seeds to be stored in the premises known as #220-#230, Johnson Street, Chicago, Illinois.</p> <p>“2. All of the above named premises, or such portions thereof as may from time to time be required, shall as and when required be leased to the National Storage Company. Said premises are to be designated as National Storage Company's Warehouse Premises Number 281.</p> <p>“3. Rates, Terms and Conditions which shall govern the storage of property or issue warrants under this proposal are as follows:</p> <p>“On property valued at $10,000 or less, the charge for the first calendar month or fraction will be $7.50, for each succeeding month or fraction $7.50, and for each additional $1,000 or fraction, the rate will be $.75 per month.</p> <p>“All traveling expenses and other incidental expenditures incurred while conducting the business under this proposal, and all costs of placing property in store, such as measuring, weighing, tallying, surveying, platting or drafting, etc., will be added to above charges. A certified memorandum must be rendered, showing market value of the property placed in store on which storage charges are to be based.</p> <p>“4. Substantial fences, gates, partitions, doors or other forms of enclosure, for enclosing or protecting property, for which warrants of this Company have been or may hereafter be issued, shall be constructed and kept in repair by acceptor hereof, and if n"ot so constructed or repaired upon request, this Company is hereby authorized to forthwith construct or repair same, and place any cost therefor as a charge against the property enclosed or protected thereby.</p> <p>“5. Any and every lease executed in pursuance of this proposal shall, upon-written notice delivered to the National Storage Company by the acceptor hereof, be duly cancelled and the premises surrendered only when and after-all warrants issued under, upon or by reason of any and every application' executed by such acceptor, shall have been delivered to this Company under-terms and conditions of this proposal and said warrants.</p> <p>"6. It is understood unless otherwise provided in writing, that this proposition under its terms contemplates, that the quantity of grain which may be received for storage, shall be determined by a measured bushel standard. Grain will be received by weight and so accounted for, charges for weighing, by this Company’s representative to be paid by acceptor hereof.</p> <p>“7. Storage charges are due and payable as elected by this Company, at time of delivery, monthly, or at close of each calendar quarter. It is provided, that if for any cause delivery of property be made on which storage-charges have not been paid, the remaining property will be held liable for-same and all other charges which may have accrued. The costs for delivery of property when attended by superintendence of this Company are not rated as storage charges. Such cost and other contingent expenses will form basis-for additional charge. Surrender of warrants and payment of charges to date-of such surrender will not cease or terminate storage charges until property has been accepted, and Release Permits have been signed by party authorized, to receive the property surrendered, and permits have been received at office of this Company.</p> <p>“8. Should increased cost, or additional services, or risk, in reference to-said property or warrants, be incurred by reason of the sale or pledge of the warrants, and the property, covered thereby, then the rates on each warrant, shall be such as shall.be fixed by this Company, not exceeding the rates-named therein.</p> <p>“9. The services of a capable person satisfactory to this Company must be provided to represent its interests, such person shall also be acceptable to any surety company from whom indemnity bond may be asked in adequate amount, and commensurate with value of property received by this company and covered by its warrants. To defray cost of bond and services of such custodian a charge against the property will be made, unless otherwise adjusted.</p> <p>“10. This Company reserves the right to recall and issue new warrant, for-remainder of ■ any warrant having three or more endorsements thereon of property delivered therefrom, also to recall and issue new warrant for remainder of any warrant, at expiration of one year from its date, having one or more endorsements thereon of property delivered therefrom, provided that in either case the guarantee afforded by endorsers is not affected thereby.</p> <p>“11. It is understood that while the identity of each respective lot of property received by this Company, shall always be maintained, any surplus remaining after the delivery of any certain lot or lots may be retained by the-Storage Company, until all charges are paid, and all warrants issued in pursuance of this proposal shall have been surrendered and satisfied.</p> <p>“12. It is to be understood also, that should this Company at any time-hereafter, for any reason deem the premises furnished for its occupancy insecure for its purposes, or, for any cause be interfered with in the possession or removal of properly covered by its warrants, or be dispossessed of the storage premises, which are now or -may hereafter be leased to it, that it is hereby authorized, without notice to holders of warrants upon all or any part of the property stored in such premises, to provide other suitable storage premises, move the property thereto, and cause policies of insurance to issue thereon to its own order in trust for amount of value shown by said valuation memorandum, or more at its discretion. All costs or expenses accruing-by means of such removal, interference or dispossession, including insurance-premiums, and increased rental paid by this Company, for space occupied by such property, shall be chargeable against the property in addition to the-storage rate above specified. And if the same or any other charges are and remain unpaid for ninety days'3 or more, this Company is hereby authorized-to sell the property in the manner, legally provided for enforcing warehouse-men’s lien, and shall apply the proceeds of such sale:</p> <p>“First: To the payment of all costs and expenses of such sale.</p> <p>“Second: To the payment of all sums due this Company under, upon or by reason of this proposal, and the overplus if any, shall be held for and upon demand paid to the party or parties legally entitled thereto. When this Company shall have given the legal notice and sold the property as provided thereunder; then all warrants affected thereby shall be null and void as against the National Storage Company.</p> <p>“13. The Property delivered for purposes of storage must remain undisturbed until warrants covering same are surrendered, received at office of this Company in Chicago and ‘Release Permits’ duly received and countersigned by Custodian in charge and receipt signed for property by party authorized to receipt for same.</p> <p>“14. The acceptance hereof shall empower The National Storage Company to place its signs and marks upon the property and enclosure to such an extent as shall fully protect possession in compliance with laws regarding same, which signs and marks must at all times remain undisturbed and unobseured.</p> <p>“15. Upon conclusion and settlement of all business under this proposal, all copies of original and duplicate papers, shall, upon request of this Company be cancelled and returned to it.</p> <p>“Very respectfully, National Storage Co.,</p> <p>“Accepted. By Walter Tod, Treasurer.</p> <p>“Alex. Rodgers.”</p> <p>And thereupon the bankrupt executed a lease to the National Storage Company as follows:</p> <p>“This Agreement, Made this thirty-first day of August, in the year of our Lord one thousand nine hundred - between Alexander Rodgers, of Chicago, County of Cook, and State of Illinois, party of the first part, and National Storage Company, a corporation organized and existing under the laws of the State of Illinois, party of the second part,</p> <p>“Witnesseth: That the said party of the first part for and in consideration of the covenants and agreements hereinafter mentioned and contained, to be kept and performed by the said party of the second part, its successors and assigns, hereby does demise, lease, and let unto the said party of the second part the following described premises, situated in the City of Chicago, County of Cook and State of Illinois, to w‘.t:</p> <p>“All of the basement and second floor, the North Half (N. %) of the third (3) and fourth (4th) floors and all of the fifth (5th) and sixth (6th) floors of the six (6) story and basement Brick Building situated at and known as #220 #222 #224 #226 #228 and #230 Johnson Street, for and during the term of three years from and after the date of this Agreement (and so long thereafter as property remains thereon for which warrants of said Storage Company have been issued and are in force and effect) for a yearly rental of One Dollar, and other good and valuable considerations, the receipt of which in advance, is hereby acknowledged by the party of the first part.</p> <p>“This lease is made upon the express conditions following, to wit:</p> <p>“First. That the said leased premises shall be used and occupied exclusively for the storage of Personal Property, and for the transaction of such other business as may be connected therewith, or incident thereto, in pursuit of any rights claimed in performance of duties of said Storage Company as Warehousemen.</p> <p>“Second. That the said second party will not receive upon premises above described any property for purposes of storage, after due notice in writing has been received by said Storage Company, from said first party, that termination of this lease is desired.</p> <p>“Third. Said party of the second part its agent or agents shall, for the purpose of inspection or removal of any property which may be located in premises herein leased, be permitted easy and convenient passage at any and all times; through any part of the abutting premises that is or may hereafter be occupied or controlled by said party of the first part.</p> <p>“Fourth. Said party of the second part shall, for the convenient moving of property to or from the above described premises, have free from cost of operation the nse of elevators, tracks, cars, scales, scale house and any other fixtures or appliances that party of first part now has or may acquire during term of this lease, and shall he privileged to place any marks, signs or other evidences of possession which it may deem necessary or desirable.</p> <p>“Fifth. It is understood and agreed to by and between the parties hereto that the ‘moving of property’ shall include the complete delivery of same on cars, wagons, or other means of transfer should party of the second part so elect.</p> <p>“In Witness Whereof, the parties to these presents have hereunto set their hands and seals the day and the year first above written.</p> <p>“[L. S.] Alexander Rodgers [Seal.]</p> <p>“[L. S.] National Storage Company [Seal.]</p> <p>“By Walter Tod.”</p> <p>Upon the execution of the lease the National Storage Company tacked on the walls of the several floors notices in white letters upon dark blue enameled tin 3x7 inches, there being eight of the signs, which were distributed to the several floors of the building. These signs read: “This' property controlled by the National Storage Company as a public warehouse. Warehouse premises No. 281.” These signs were placed seven or eight feet from the floor on the side of the building and on the partitions between the premises in question and the north half of the building; but no signs were placed on the exterior of the building. When the bankrupt desired a storage warrant, he made application upon a blank form to the National Storage Company as follows:</p> <p>“Application for Storage Warrant.</p> <p>“Chicago, Ill.</p> <p>“To the National Storage Company,</p> <p>“Chicago.</p> <p>“For the purpose of obtaining your Storage Warrants the subscriber has placed in your Warehouse premises No. 281, located at Nos. 220-230 Johnson St. Chicago, Ill. the following property, to wit:”</p> <p>“It is hereby certified that this property belongs to the undersigned, is in good mercantile condition and free from lien or encumbrance. Said Storage Warrants to be issued to order of Alex Rodgers, in accordance with proposal for Warehousing Contract dated Aug. 25, 1900, of which this Application and the Valuation Memorandum bearing same Warrant Numbers and of even date herewith is hereby made a part”, accompanying the same with a valuation memorandum as follows:</p> <p>“Valuation Memorandum.</p> <p>“Chicago.</p> <p>“National Storage Company.</p> <p>“Room 217, First Nat’l Bank Bldg., Chicago.</p> <p>“To Alex Rodgers,</p> <p>“#220 #230 Johnson St., Chicago.</p> <p> </p> <p>“The property specified on the above memorandum which for purposes of warehousing has this day been placed in the possession of the National Storage Company, by the subscriber, is the same as that entered on Application for Storage warrant of corresponding warrant number, and even date herewith, and the undersigned hereby guarantees that the responsibility of the Storage Company, in event of loss of any property covered hy warrants enumerated, shall not exceed the values given above, unless, before such loss occurs, notice of change in value shall have been given to and acknowledged by said' Storage Company.”</p> <p>Thereupon, an employé of the company would inspect the property specified in the application and valuation memorandum, and place upon the pile .a pasteboard tag of the form following:</p> <p>“No disturbance permitted while this card is posted.</p> <p>“Warehouse card, National Storage Company, dated .....................</p> <p>Warrant No....... Lot No....... Section No....... Pile No.......”</p> <p>The Storage Company would then issue to. the bankrupt a warehouse warrant or receipt in the form following:</p> <p>“Warrant No....... Lot No....... National Storage Company, Office 217 First National Bank Building, Chicago, hereby acknowledges to have received .......... to weigh .......... pounds, contained in Div....... Sec.......floor at its warehouse premises No. 281, located at 220 to 230 Johnson Street, Chicago, Illinois, and will surrender the same to the order hereon of Alexander Kodgers upon payment of charges and delivery of this warrant, at its office, Chicago, duly endorsed.</p> <p>“It is agreed that this company is not responsible for loss or damage to property occasioned by fire, water, leakage, vermin, ratage, shrinkage, accidental or providential causes, riot or insurrection, frost or change of weather, or from being perishable while in storage, and that this company shall, in the custody of the above property, be the agent of the holder of this warrant.</p> <p>“Record Book......page...... Storage and charges as per contract on file with this company.</p> <p>“Chicago.............................</p> <p>These warrants the bankrupt would place at banks and with others as collateral to loans made to him. When it was desired to remove seed for which warehouse receipts had been obtained, application was made on a formal printed blank, the warehouse receipt returned and canceled, and a release issued by the storage company to the bankrupt.</p> <p>The storage company had no warehouse of its own, only such as was leased, as was the one in question here. It had no keys to this building. The bankrupt alone had the keys, and access thereto was obtainable only through him. The signs placed upon the walls' of the building were obscured, and not readily observable by reason of the fact that the piles of seed were higher than the signs. After the lease he continued as before to carry on his ordinary business upon the premises, maintaining ¿n office with sundry clerks and workmen upon the premises. He bought and shipped seed, cleaned the same, and occasionally cleaned seed on which receipts were issued, taking it out of the bags, cleaning it, and restoring and adding a sufficient amount of other seed to equalize the loss in the cleaning. Also, in some instances, the bankrupt shipped out the property before the receipts were canceled; but the storage company did not know of it. The bankrupt also, from time to time, as the exigencies of his business prompted, brought seed to the warehouse, and substituted it for seed on which receipts had been issued, removing the seed on which receipts had been issued, and replacing the tags on the bags substituted. This was done in many instances, and sometimes several times with the property covered by one receipt. Whether the storage company knew of this custom of business is left somewhat doubtful by the evidence. The storage company, however, had notice of the custom of the bankrupt to clean the seed so placed in storage. The inspector of the storage company called at the premises from one to five times a week. Once or twice a week he would check over the goods stored, and see that the tags were on the bags and that the stock was all right. The bankrupt hypothecated some of these receipts with the First National Bank of Chicago to secure loans to the amount of $12,000, and some of them with H. W. Rogers & Bro. to secure a loan of $5,000, and he sold some of the receipts to other parties, receiving the full value of the seed.</p> <p>Upon the adjudication of bankruptcy, the receiver, at the request of the general creditors of the bankrupt, applied for an order for the immediate sale of the seed in the warehouse; whereupon the First National Bank of Chicago appeared and pleaded that the bankruptcy court was without jurisdiction to decree a sale of a certain part of the property, alleging, in support of its plea, that it held warehouse receipts issued by the storage company upon certain specified parts of the property, which were duly indorsed by the bankrupt, and delivered and pledged to the bank for moneys in good faith loaned and advanced to the bankrupt; and claiming that the property was in the full possession and control of the National Storage Company, and was not in the rightful possession of the receiver. A similar plea was filed by H. W. Rogers & Bro., who held warehouse receipts on certain other part of the property to secure a loan of $5,000. The National Storage Company also appeared, denying the jurisdiction of the court to order any sale of the property, setting forth the property which at the time of the bankruptcy was' stored in the premises upon which it had issued warehouse receipts, and claiming that it was in the actual possession of the property, and that its receipts entitled the holders thereof, upon presentation to it, to possession of the property.</p> <p>The matter was referred to a referee, who reported August 5, 1901, that the bankrupt, by reason of the facts stated, was not, at the date of filing the petition or at the date of adjudication, in possession of the property mentioned in the answers, and that the receiver had not possession or right of possession of the property; that the receipts of the National Storage Company were valid under the law of the state of Illinois, and were transferable by indorsement; and that the indorsement of the receipts held by the several parties answering constituted valid transfers to them of the property represented by such receipts; and recommending that the petition be dismissed as respects all property covered by the warehouse receipts. On the same day the court entered an interlocutory decree which held that the receiver receive and take possession from the bankrupt, peaceably, the property in question, namely, the several lots of seed, set forth in the answers of the First National Bank, H. W. Rogers & Bro., and the National Storage Company, in the warehouse; and that the court had jurisdiction and possession of that property in this cause; that the court sustained the objections and exceptions to the report as to the jurisdiction and possession of the court; and, it being deemed most advantageous to sell the seed in question at that time, and the bank stipulating that it would sell and hold the funds derived from the sale of the seed subject to the further order of the court, it was ordered that the First National Bank sell the seed at once, and report its acts and doings in the premises to the court. The sale was had, and on September 23, 1901, the court confirmed the sale, and the bank and Rogers & Bro. filed their petitions, claiming preference and liens on the proceeds of the sale reported by the bank, and the court ordered the trustee of the bankrupt and any parties in interest to answer such petition. The trustee and James A. Patten, creditor, thereupon answered such petitions, upon which proof was taken, and on October 29, 1902, the court entered a final decree confirming the report of the referee, except so far as the same found that the bankruptcy court was without jurisdiction, decreed that the. receiver had not the right of possession to the property mentioned, but that the National Storage Company had, and was entitled to the same; and, reciting the sale of the property by the First National Bank under the interlocutory order or decree, the proceeds of which were in possession of the First National Bank, distributed the proceeds to that bank and to H. W. Rogers & Bro., according to their respective claims. From which decree the trustee and Jámes A. Patten, a creditor to the amount of $34,000, appeal to this court</p>

<p>1. Trial—Peremptory Instructions—Request op Both Parties—Questions op Pact Concluded.</p> <p>Where, at the close of a trial by a jury, each party requests a peremptory instruction in his favor, and the court grants one of the requests, the parties are estopped from claiming that any question should have been submitted to the jury. All disputed questions of fact are conclusively determined in favor of the successful party, and the only questions open to review in the appellate court are, was there any substantia] evidence in support of the court’s finding of fact? and was there any error in the declaration or application of the law?</p> <p>2. Customs Duties—Consignee op Goods Owner por Purposes op Collection —Relation to Consignor Immaterial.</p> <p>The consignee of imported goods is deemed the owner for the purpose of the collection of the duties thereon, under section 3058, Rev. St., as amended by Act Feb. 23, 1887, c. 221, 24 Stat. 415 [U. S. Comp. St. 1901, p. 2005], and it is no defense to an action against the consignee for such duties that the consignor or any other party who, at the request or with the consent of the consignee, procured the Importation, failed to obey the latter’s instructions or to comply with the terms of the contract between, them.</p> <p>3. Same—Forfeiture for Undervaluation—Fraudulent Intent Requisite.</p> <p>Under section 32 of the tariff law of July 24, 1897, c. 11, 30 Stat. 212 [U. S. Comp. St. 1901, p. 1892], the fraudulent intent of the owner or of his authorized agent in entering the imported merchandise is an indispensable condition of the right of the government to forfeit the goods for undervaluation.</p> <p>¶ 3. See Customs Duties, vol. 15, Cent. Dig. § 297.</p> <p>4. Same—Additional Duties for Undervaluation Recoverable Without Proof op Fraudulent Intent.</p> <p>But an action to recover the additional duties accruing upon an undervaluation under this section of the law may be maintained against the consignee without proof of any fraudulent intent by the owner, the consignee, or the agent in making the entry. Good faith and innocence constitute no defense to such an action.</p> <p>(Syllabus by the Court.)</p>

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

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

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

<p>L Corporations—Assessments on Stockholders—Date op Call.</p> <p>A resolution was passed by the directors of a corporation that a call be made on the holders of partly paid stock on September 16th following, the same to be payable in installments at specified times thereafter. EM, that September 16th was the date of the call for the purpose of fixing the liability of stockholders.</p> <p>8. Same—Liability of Stockholder—Transfer of Stock.</p> <p>Both at common law and under the statutes of New Jersey a stockholder in a corporation is liable for assessments on calls lawfully made after he has been accepted by the corporation as a stockholder, and while he stands registered as such on its books, and he is not released from such liability by a transfer of the stock after the call has been made, but before it becomes payable.</p> <p>8. Same—New Jersey Statute.</p> <p>Under the corporation law of New Jersey, which provides (Sess. Laws 1896, p. 283, § 18) that “every corporation shall have power to create two or more kinds of stock of such classes, with such restrictions or qualifications thereof as shall be stated or expressed in the certificate of incorporation,” a provision of such certificate, also embodied in the certificates of shares of partially paid preferred stock of a corporation, that the holder of such shares of record on the books of the corporation at the time of the making of an assessment thereon, and he only, shall be liable for such assessment, is binding on such holder, and fixes his personal liability.</p> <p>4. Same—Remedy for Collection of Assessments—Right to Sue at Law.</p> <p>A state statute giving corporations a lien on the shares of stockholders for assessments, and authorizing a forfeiture and sale of the stock in case of default, does not provide an exclusive remedy, but is cumulative, and the corporation may, at its election, maintain an action in assumpsit against the delinquent stockholder.</p> <p>¶ 4. See Corporations, vol. 12, Cent. Dig. § 390.</p> <p>5. Same—Action to Recover Assessment—Defenses.</p> <p>The validity of an order by the directors of a corporation making an assessment on stockholders cannot be collaterally attacked by a stockholder in an action against him to recover the assessment.</p>

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

<p>1. Bankruptcy—Appealable Orders.</p> <p>Following Union Trust Co., Petitioner (C. C. A.) 122 Fed. 937, a court of bankruptcy has undoubted power to marshal assets in the hands of a trustee, as between partnership and individual creditors, in the exercise of its equitable jurisdiction conferred by Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420]; and when, in the course of such proceedings, a distinct and separable issue is raised between parties intervening, involving substantial rights, and which might arise at common law or in equity, the case presents a controversy within the meaning of section 24a, and an appeal lies from the order made thereon under such section to the Circuit Court of Appeals.</p> <p>¶ 1. Appeal and review In bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p>

<p>1. Pledges—Validity—Sufficiency of Delivery.</p> <p>By an agreement a paper company was to deliver all the product of Its mill to plaintiffs, who were its selling agents, as security for advances which were made to it by plaintiffs, and such deliveries were made as fast as the goods were manufactured to a designated agent for plaintiffs, who was also an employé of the company, and the product when so delivered was placed by itself on the premises Of the company, and was thereafter controlled by the agent, who shipped it from time to time for sale when ordered by plaintiffs. EM that, under the rule that there must be both delivery and continued possession to constitute a valid pledge as to third parties, there was such actual delivery and continued possession by the pledgees as to render the pledge valid as against an assignee in insolvency of the company, with respect to the goods on hand in the custody of the agent when the assignee was appointed.</p> <p>8. Same—Receipts.</p> <p>A pledge is not invalidated because no receipt was given the pledgor for the goods when they were actually delivered to an agent of the pledgee, although they remained on the premises of the pledgor, nor because on a transfer of possession by the agent to a successor he took no receipt for the goods.</p> <p>8. Insolvency—Validity of Transfers—Burden of Proof.</p> <p>To entitle an assignee in insolvency under the statute of Maine to invoke the provisions of such statute-making void transfers of property by the insolvent within four months to one having reasonable cause to believe him insolvent, or in contemplation of insolvency, or for the purpose of giving preference to pre-existing debts, such assignee must establish by proof the facts which bring the transaction in question within the terms of the statute and make it applicable.</p>

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

In Equity. This cause comes here at final hearing upon pleadings and proofs. The bill is in the usual form for injunction and accounting, infringement being charged of United States letters patent 474,811 to Charles A. Catlin (assignor to plaintiff), May 17,1892, for baking powder.

At Raw. Action on bonds and coupons issued by the independent school district of Riverside. Jury trial waived, and case submitted to the court.

<p>1. New Trial—Excessive Verdict.</p> <p>A court will not interfere with a verdict assessing damages, whieh it was exclusively within the province of the jury to determine, unless the amount is so excessive as to indicate passion or prejudice on the part of the jury, and cannot be accounted for in any other manner.</p> <p>2. Damages—Breach of Contract—Sufficiency of Proof.</p> <p>While remote or speculative damages, based solely on conjecture, are not recoverable for breach of a contract, the plaintiff is not precluded from recovering such general damages as are shown by the testimony to have necessarily resulted from the breach, although the amount may not be made so clear and certain that it can be exactly computed.</p> <p>8. Same—Evidence of General Damages.</p> <p>The fact that, as the result of breach of contracts by defendant, plaintiff was prevented from working its mine without great loss, expense, and inconvenience, goes to the matter of general damages arising from the breach, and was proper for the jury to take into consideration in determining the actual loss to plaintiff, exercising their best judgment as to the amount of such loss.</p> <p>¶ 1. See New Trial, vol. 37, Cent. Dig. § 153.</p>

<p>In re proceeding for contempt against the Indianapolis & Northwestern Traction Company, George Townsend, Clift Wise, W. N. Harding, and William H. Johnston.</p> <p>The city of Crawfordsville sued the Indianapolis & Northwestern Traction Company in the circuit- court of Montgomery county, Ind., to enjoin that company from constructing its railroad tracks in the streets of that city. The traction company answered, and also filed a cross-complaint against the city of Crawfordsville and the Consolidated Traction Company. In this cross-complaint the Northwestern Traction Company asserted a franchise to construct its tracks in the streets of Crawfordsville; charged that the city had subsequently and without right granted a franchise to the Consolidated Traction Company, which impaired the obligation of the previous contract between the city and the Northwestern Traction Company, all in violation of section 10 of article 1 of the Constitution of the United States; and injunctive relief was asked against both the defendants to the cross-complaint to restrain them from interfering with the Northwestern Traction Company in the construction of its tracks in the streets of the city of Crawfordsville.</p> <p>On the 23d of June, 1903, the hearing was commenced in the Montgomery circuit court of an application for a temporary injunction by the city of Crawfordsville on its complaint against the Northwestern Traction Company, and also of an application by the Northwestern Traction Company for a temporary injunction on its cross-complaint against the city and the Consolidated Traction Company. It developed that the hearing could not be concluded that day, and the court ordered the further hearing adjourned until July 6, 1903, and at the same time entered the following order:</p> <p>“It is hereby ordered by the court upon its own motion:</p> <p>“(1) That the restraining order heretofore granted by the Hon. Jere West, judge of this court, on the 17th day of June, 1903, on the application and complaint of the City of Crawfordsville vs. Indianapolis and Northwestern Traction Company, be continued until the 6th day of July, 1903, and until the further order of this court, and that upon said day the application of said the city of Crawfordsville for a temporary injunction herein shall be heard without further notice, and that the undertaking heretofore filed shall continue as security to said defendant under this order.</p> <p>“(2) That, upon the cross-complaint of Indianapolis and Northwestern Traction Company vs. The City of Crawfordsville and the Consolidated Traction Company, said defendants to said cross-complaint, and each of them, and their respective officers, agents, and servants, upon the execution by the cross-complainant of the undertaking required by law, be severally restrained from taking any action to change and from changing the present status of the matters embraced in said cross-complaint as they now exist, and that the said Consolidated Traction Company be restrained from entering upon and constructing, or attempting to construct, its said street railroad upon East Pike street, Elston avenue, and Main street, or any part thereof, in the city of Crawfordsville, until the 6th day of July, 1903, and until the further order of this court, and that upon said 6th day of July, 1903, the application of the said Indianapolis and Northwestern Traction Company for a temporary injunction herein be heard without further notice, and that until said last-mentioned date, and until the further order of this court, the Indianapolis and Northwestern Traction Company, its officers, agents, and servants, and employees, be, and it and they are hereby, restrained from constructing, or attempting to construct, any street railroad upon any of the streets, avenues, alleys, bridges, and public places in the city of Crawfordsville, or any part or portion thereof.”</p> <p>On July 6, 1903, and before the hearing of the applications for temporary injunctions was resumed, the city of Crawfordsville dismissed its complaint" against the Northwestern Traction Company, and that company dismissed its cross-complaint against the city. Thereupon the Consolidated Traction Company immediately filed its petition and bond for a removal of the cause pending against it on the cross-complaint of the Northwestern Traction Company to this court, and an order of removal was entered by the Montgomery circuit court. The transcript of the record from the Montgomery circuit court was filed in this court on the 8th day of July, 1903, and on the 13th day of the same month the Northwestern Traction Company filed its motion to remand the cause.</p> <p>Whilst this motion was still pending and undetermined, to wit, on July 27, 1903, the Northwestern Traction Company commenced the work of laying its railroad tracks in certain streets in the city of Crawfordsville, and continued the work until it had constructed 3,030 feet of track in Main street and Elston avenue, and 1,591 feet of track in Pike street.</p> <p>The Consolidated Traction Company filed its verified petition, praying that the Northwestern Traction Company and certain individuals named in the petition be required to show cause why they should not be adjudged guilty of contempt, and that upon the hearing of the petition they be required, within a short time, to be fixed by the court, to remove from Main street, Elston avenue, and Pike street all the tracks that had been constructed in those streets. The motion to remand was overruled. A motion to quash the petition and citation in the contempt proceedings was also overruled, and that petition was heard upon the answers of the respondents and upon written and oral testimony introduced at the hearing.</p>

<p>1. Clerks oe Circuit Courts—Pees—Making and Certifying Record for Appellate Court.</p> <p>A clerk of a circuit court is entitled to charge for making up and certifying the record in a case in response to a writ of error at the rate of 15 cents for each folio of 100 words.</p> <p>2. Same—Printing Record</p> <p>There is no statutory provision which authorizes the clerk of a circuit or district court to charge a fee for printing the record in a case for the Circuit Court of Appeals, in addition to the cost of printing, although by the fee bill adopted by the latter court under statutory authority its own clerk is entitled to such fee, and is also required by the rules to accept any portion of the record of- proper size and type which may have been printed by any other court.</p> <p>8. Costs—Printing Record—Mistake of Clerk.</p> <p>Where the clerk of a circuit court undertakes to have the record tn a case printed for use in the Circuit Court of Appeals, as permitted by the rules oÍ that court, he is entitled to charge only the reasonable cost of such printing; and where, owing to his misconception of the time within which the printing was required to be done, without consulting the parties, he had the work hastened at an increased cost, when it was in fact unnecessary, he cannot tax such increased cost.</p>

<p>Suit on Relation for Violation of Interstate Commerce Law.</p>

<p>1. Shipping—Rights op Mortgagee—Freights.</p> <p>The mortgagee of a skip wbieb is left in possession of tbe owners, on subsequently taking possession under tbe mortgage, is entitled to tbe freights thereafter coming due, whether or not they were earned in whole or in part before he went into possession; but he is entitled to such freights subject to such engagements as the owners have previously entered into in respect to the voyage, they having the right to full control and to make any contracts necessary for the operation of the vessel so long as they remained in possession.</p> <p>2. Same—Contracts Made by Mortgagor in Possession.</p> <p>The owners of a steamship, who had given a mortgage • thereon, but who remained in possession, chartered her for a voyage; the charter party providing for advancements to a stated amount by the charterers to the master, the same to be deducted on final settlement of freights. By subsequent agreement, at different ports during the voyage further advances were made to the master as required by him, for which receipts signed by him were indorsed on the charter, stating that the money was drawn against freight. On reaching the port of delivery the mortgagee took possession of the vessel. Held, that it was competent for the parties to the charter to enlarge the provision for advances, and, having done so, such action was binding on the mortgagee, who, on subsequently taking possession, was entitled to recover from the charterer only the balance of the freight due after deduction of all the advances.</p>

<p>1. Pleading—Bill op Particulars—New York Practice.</p> <p>A plaintiff, in an action for a personal injury, required on motion of defendant to furnish a bill of particulars under the statute of New York, where he had previously obtained extensions of time to serve such bill.</p>

<p>In Bankruptcy. On review of decision of referee allowing the claim of Kohn & Co.</p>

<p>1 Shipping—Injury of Passenger—Negligent Fastening of Vessel to Dock.</p> <p>A steam ferryboat which, while discharging passengers on a dock or float, by reason of being insufficiently secured swung away from the float, leaving a space of several inches, is liable for an injury to a passenger, who in attempting to pass from the vessel, and in the exercise of due care, stepped into such space, or was thrown by the lurching of the vessel, and fell between the vessel and dock.</p> <p>8. Damages—Personal Injury—Amount of Award.</p> <p>An award of $4,000 damages made to a woman passenger, who fell while passing from a steam ferryboat and sustained a severe sprain of her ankle, and also a fracture of the coccyx, which latter injury, as shown by the medical testimony, was permanent in character, and such as would seriously affect the nervous system of a weak, delicate woman, and tend to make her an invalid and nervous wreck, was reasonable.</p>

<p>1. Life Insurance—Suicide—Effect of Missouri Statute.</p> <p>Rev. St. Mo. 1899, § 7896, which provides that “in all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void,” does not prohibit the parties from contracting in an accident policy that a smaller amount shall be payable thereon in case of the death of the insured from suicide than the amount expressed in the caption of the policy, and which is agreed to be paid in case of death from an accidental and involuntary cause; and a provision in such a policy, nominally for $5,000 in case of death resulting from accident, that, if death shall result from injuries voluntarily inflicted, the recovery shall be limited to $500, is valid and enforceable.</p> <p>¶ 1. Suicide as a defense to action on life insurance policy, see notes to Insurance Co. v. Florida, 16 C. C. A. 623; Casualty Co. v. Egbert, 28 C. C. A. 284.</p>

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

<p>1. Trusts—Unsuccessful Attempt by Settlor to Revoke—Rights of Creditors.</p> <p>Where an active trust created by a voluntary conveyance of property to a trustee by a deed which gives future beneficial interests in the principal of the fund to others than the settlor, although reserving to him a present interest, has been sustained as valid and irrevocable by the Supreme Court of the state in a direct attack thereon by the settlor, one who became a creditor of the settlor long after the deed took effect, in the absence of evidence of fraud in the creation of the trust, cannot take the corpus of the trust fund in execution through garnishment proceedings ih satisfaction of a judgment founded on such subsequent debt, but can subject to the payment of his judgment only the income reserved and payable to the settlor.</p> <p>2. Garnishment—Rights and Status of Creditor.</p> <p>An execution attachment against a garnishee has no greater effect than to place the attaching creditor in the same relation to the garnishee as that previously occupied by the judgment debtor.</p> <p>8. Same—Defenses by Garnishee—Garnishment of Trustee.</p> <p>In garnishment proceedings against a trustee, vested with the legal title to the trust property and charged with active duties with respect thereto, to subject the corpus of the property, in which beneficiaries other than the settlor have an interest, to the payment of a judgment against the settlor, the garnishee may set up any defense, legal or equitable, which it might make against the settlor, and it is competent for it to show that the judgment was obtained through collusion between the parties for the purpose of defeating the trust.</p>

<p>1. Indian Leases—Effect of Curtis Act.</p> <p>Act June 28, 1898, c. 517, 30 Stat. 495, known, as the “Curtis Act,” which gives the owner of improvements on a lot in the Indian Territory a preferred right to purchase the same after it shall have been appraised, did not affect the obligation of a white man, who was at the time of its passage in possession of a lot under a lease from an Indian, to restore possession to the lessor on the termination of the lease in accordance with its terms.</p> <p>8. Landlord and Tenant-Rights of Landlord—Action of Unlawful Detainer.</p> <p>A lessor who stipulates to pay the lessee the value of improvements made by him at the expiration of the term does not thereby disable himself from bringing an action of unlawful detainer, where the tenant at the end of the term refuses to accept the payment tendered or to surrender possession, and cannot be required to first bring a suit in equity to compel the lessee to accept such payment.</p> <p>3. Same—Statute of Indian Territorv.</p> <p>Mansf. Dig. § 4174 (Ind. T. Ann. St. 1899, § 2854), in force In the Indian Territory, which provides that an action by a landlord to recover possession of the premises on account of nonpayment of rent shall abate on a tender of the rent due by the tenant before judgment, has no application to an action to recover possession unlawfully withheld by the tenant after the term has expired.</p>

<p>1. Patents—Construction op Claims—Statements op Preferable Mode op Construction.</p> <p>Features of construction which the specification of a patent recommends or describes as preferable do not thereby become essential parts of the patent or limitations of the claims.</p> <p>8l Same—Infringement—Bosh-Plates for Blast Furnace.</p> <p>The Scott patent, No. 452,618, for bosh-plates for furnaces, is valid (excepting claim 6), and covers a meritorious invention, the essential feature of which is to provide separate recesses in the furnace wall in which the bosh-plates are set, and from which they can be removed freely, being so independently set as not to be affected by the expansion or contraction of the wall. Except as to claim 7, the claims are not limIted to bosh-plates constructed internally with a tortuous water passage, but cover any plate having a water passage extending through it for the passage of a current of water. Claims 1 to 5 so construed, and held infringed.</p>

<p>1. Patents—Invention—Fountain Pens.</p> <p>Tbe Waterman patent, No. 307,735, claims 1 and 2, for an ink duct for aa fountain pen, consisting of a groove in a bar for conducting the ink from the reservoir to the point of the pen, are void for lack of patentable invention.</p> <p>2. Same.</p> <p>The Waterman patent, No. 293,545, for an ink duct for a fountain pen, the novel feature consisting of longitudinal fissures in the sides or walls of the groove for conducting the ink to the pen, held not infringed as to claims 1 and 2, and void for lack of patentable invention as to claim 3.</p>

<p>1. Patents—Infringement—Defense of Anticipation.</p> <p>That the device of a patent was in part anticipated by a foreign patent will not constitute a defense to a suit for infringement, where it contains a patentable improvement over the foreign device, and defendant has used the improvement.</p> <p>2. Same—Invention—Elimination of Parts.</p> <p>The mere simplification of a mechanical device, when of a substantial character, by the elimination of parts which have long been in use, and are expensive and burdensome in character, may amount to invention.</p> <p>¶ 2. See Patents, vol. 38, Cent. Dig. § 25.</p> <p>8. Same—Infringement—Water- Closets.</p> <p>The Frame and Neff patent, No. 425,416, for a water-closet, discloses at least such an improvement upon the device of the Mann English patent, No. 577 of 1870, and that of the Buick patent, No. 383,038, as to amount to patentable invention. Claims 1, 3, and 4 considered, and held infringed.</p>

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

<p>1. Compromise op Suit—Yaridity.</p> <p>A compromise of suit between imputed brother and sister, where the question of legitimacy of the sister is involved, because of its scandalous character is such a proper subject of domestic adjustment as to invite the favor of the court. If free from fraud, no matter how unjust the defendant may have regarded the charge, or what different result subsequent developments might probably produce, it should stand. The value consists in the release from an uncertain position, with its anxieties, from apparent danger, and from inevitable expenses and trouble. Such compromises are especially favored by the courts when of the nature of family settlements.</p> <p>2. Same—Duty op Counsel—Equitable Eeliep.</p> <p>While it is the duty of counsel acting as guardian ad litem for a defendant to advise with and safeguard his client as far as he can in the matter of a compromise agreement, yet when such client, on the approach of her majority, without the connivance or concurrence of her counsel, separates herself from him, and enters into a compromise agreement with her adversary brother, neither law nor the ethics of the profession require that her counsel should go out and hunt her up and thrust his advice upon her; and where at the time of the consummation of the compromise agreement, when she had attained her majority, he admonishes her of the effect of her act, and she nevertheless enters into such agreement, she has no claims upon a court of equity to interfere.</p> <p>8. Same—Adversary Counsel.</p> <p>The adversary counsel has a right to advise and assist his client to the most advantageous compromise in his behalf, provided he neither makes, nor causes to be made, to the adverse party, any false statement of fact, with a view of inducing such compromise in reliance upon the truth of such statement He has the right to deal with the adversary at arm’s length.</p> <p>4. Same—Undue Influence by the Mother.</p> <p>When one of the questions in suit is whether or not the defendant is the daughter of a former husband of the mother, the fact that the mother, both prior to and during the pendency of the litigation, may have stated to the daughter, in anger, that she was not born in lawful wedlock, and such imputation may have been among the inducements influencing the daughter to compromise the suit, such fact would not warrant the court in vacating the compromise without a judicial inquiry and ascertainment as to whether such imputation was true or false.</p> <p>5. Impeachment of Legitimacy.</p> <p>The rule, of law that when the marriage relation is once proven to exist nothing shall be allowed to impugn the legitimacy of the issue, short of proof of facts showing it to be impossible that the husband could be the father, is not a conclusive presumption, but is one that disappears when the truth appears. The proof to repel it is as to the degree.</p> <p>¶ 5. See Bastards, vol. 6, Cent. Dig. § 5.</p> <p>6. Compromise—Sufficiency of Memorandum Contract—Construction.</p> <p>Where a part of the consideration to be paid by complainant for such compromise was the sum of $10,000, to be placed with a named trust company, the interest thereon to be paid to the defendant during her natural life, the fact that the written memorandum of such undertaking does not express the consideration therefor nor fix the time when such deposit should be made does not render it nonenforceable. The consideration can be- shown by parol, and the law would imply that the deposit should be made in a reasonable time, according to the surrounding circumstances; besides, the cause being yet pending in a court of equity, the court has plenary power, as a condition to the recognition of the operation of the settlement, to require the deposit to be made in a given time; and where the beneficiary of such deposit, before a reasonable opportunity has been afforded the complainant to make such deposit, gives notice of the repudiation of the entire compromise agreement, she cannot complain that such deposit was not promptly made or could not be enforced.</p> <p>¶ 6. Sufficiency of expression of consideration in memorandum within statute of frauds, see note to Choate v. Hoogstraat, 46 C. C. A. 183.</p> <p>7. Foreign Judgment—Suit to Set Aside—Joinder of the Husband.</p> <p>The fact that the husband is joined with the wife as a codefendant in a suit in equity to avoid the effect of the judgment of a foreign court, adjudging her to be equally entitled with the complainant to a share in a certain trust fund, and to recover from her and her curator the property, real and personal, obtained by them under such alleged fraudulent judgment, does not require that he should join her in a compromise agreement, or in an answer confessing the bill, as under the Missouri statute she is as to such property a feme sole, and as such can be sued alone, either at law or in equity.</p> <p>8. Same—Cross-Bill.</p> <p>Where, pursuant to the terms of such compromise agreement, the defendant wife conveys certain real estate to the complainant and other real estate to complainant’s counsel in payment of his fees, the request of the defendants to file in the original suit a cross-bill bringing such counsel for the first time into the litigation, seeking to set aside such compromise and deeds as having been fraudulently obtained, is denied, as not being properly within the office of a cross-bill.</p> <p>9. Attorney’s Duties.</p> <p>The conduct of lawyers and retainers thrusting themselves into litigious strife, by becoming largely interested in the result, animadverted upon by the court</p> <p>(Syllabus by the Court</p>

<p>On Demurrer to Petition.</p>

<p>1. Civil Rights—Power of Congress to Protect—Constitutionality of Statute.</p> <p>Congress has the power, under the thirteenth constitutional amendment, to protect citizens of the United States in the enjoyment of those rights which are fundamental and belong to every citizen, if the deprivation of such rights is solely because of race or color; and section 1 of the civil rights act (Rev. St U. S. § 1978 [U. S. Comp. St. 1901, p. 1262]) is within such power.</p> <p>2. Conspiracy—Preventing Exercise of Civil Rights.</p> <p>A conspiracy between two or more persons to prevent negro citizens from exercising the right to lease and cultivate land, because they are negroes, is a conspiracy to deprive them of a right secured to them by the Constitution and laws of the United States, within the meaning of Rev. St. U. S. § 5508 [U. S. Comp. St. 1901, p. 3712],</p>

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

<p>L Shipping—Construction of Bill of Lading—delivery of Goods.</p> <p>A bill of lading issued by a steamship company for goods to be transported from San Francisco to Nome contained the following clause: “It is expressly understood that the above-mentioned merchandise shall, at the option of said company, be received by the consignee thereof at the vessel’s tackle immediately after the arrival of the steamer at the port of destination, or the same may be landed and stored * * * at the expense and risk of the owner, shipper, or consignee. * * * All lighterage * * * between steamer and shore * * * will be at the risk of owner, shipper, or consignee, and also at their expense.” Held, that the purpose of such provision was to prevent delay or inconvenience to the steamer by reason of the failure of the consignee to receive the goods at the steamer’s tackle when ready for delivery, and that when he was ready and prepared to so receive them on the steamer’s-arrival at her anchorage the company was not authorized by sueh clause to lighter them at his expense and risk, and an undertaking by it to do the lighterage for a compensation agreed upon after the vessel’s arrival constituted a new and separate contract.</p> <p>Si Same—Contract fob Lighterage—Loss of Goods by Carrier.</p> <p>An agreement by the owner of a vessel to lighter goods which she had contracted to deliver at her anchorage for an agreed compensation, in the absence of a stipulation otherwise therein, imposed on him the obligations of a common carrier, and as such he became responsible for all goods lost or damaged between the vessel and shore, unless such loss-was occasioned by act of God or the public enemy.</p> <p>3. Usage—Evidence to Establish</p> <p>Usage is a matter of fact, and not of opinion, and can only be established by proof of a series of acts of a similar character performed at different times by different persons.</p> <p>¶3. Presumptions as to customs and usages, see note to Elevator Co. v. White, 56 C. C. A. 394.</p>

<p>1. Contract by Corporation—Modification by Parol—Question for Jury.</p> <p>Plaintiff, a corporation, sued for royalties under a written contract by which it granted to defendant an exclusive license under a patent, and defendant agreed to pay royalties after three years on not less than a stated number of the patented machines annually. It was admitted that the contract was subsequently modified by parol, but whether the provision requiring the payment of minimum royalties had been abrogated was in dispute. It was shown, however, that plaintiff failed to protect defendant against infringers of the patent, and finally abandoned any attempt to do so, and that, in consequence, defendant had ceased to make the patented article; that he had never paid the stipulated minimum royalty, but had paid on the machines actually made by him, and that such payments had been known to plaintiff’s directors and accepted without objection, and no further claim made until eight years after the first of such payments was due. Held, that the failure of plaintiff to maintain the validity of its patent and protect defendant as its licensee was sufficient consideration for the modification of the contract claimed by defendant, and that the evidence warranted the submission to the jury of the question whether such modification was in fact made.</p>

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

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

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

<p>1. Patents—Anticipation—Construction of Claims.</p> <p>The rule applied that the fact that the machine of a patent is capable of a method of use not referred to nor indicated in the patent cannot be availed of to affect the construction of the claims.</p> <p>¶1. See Patents, vol. 38, Cent. Dig. § 241.</p> <p>2. Same—Machine for Cutting Siioe-Shank Sttffenf.hr.</p> <p>The Lewis patent, No. 607,602, for a machine for cutting shoe-shank stiffeners, is void for anticipation.</p> <p>8. Same—Invention.</p> <p>The substitution in a machine of a common drive shaft for other methods of driving is too familiar in the mechanical arts to constitute invention, under ordinary circumstances.</p> <p>A Same.</p> <p>“Means for holding in and out of operative position” a part of a machine are so common in the arts that there can be no invention in such means, except in the details thereof, unless under exceptional circumstances.</p> <p>5. Same—Machine for Cutting Shank Pieces.</p> <p>The Lewis patent, No. 675,661, for a machine for cutting shank pieces for shoes, claims 1, 2, 3, 4, 12, and 19, are void for lack of invention. Claim 15 construed, and held not infringed.</p>

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

<p>In Equity. Suit for infringement of letters patent No. 354,577, for a ruffling attachment for sewing machines, granted to Winslow R. Parsons December 21, 1886. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 713,209, for a process of duplicating phonograms, granted to Thomas A. Edison November 11, 1902. On motion for preliminary injunction.

<p>Suit in Support of Adverse Claim to Mining Ground.</p>

<p>Suit in Support of Adverse Claim to Mining Ground.</p>

<p>1. Mining Claims—Validity of Location—Overlapping Claims.</p> <p>The Silver Top and Valley View mining claims, owned by the defendant herein, constitute a portion of the Butler group of mines, for which defendant has applied for a patent. These locations were made by the same person, and the lines as made by the original locator overlapped each other. The discovery shaft on the Silver Top was within the lines of that location as made, and was also within the lines of the Valley View. The claims were located on the same day, the Valley View being first. The overlapping lines of the conflict between these claims were afterwards agreed upon and adjusted by the respective locators and owners thereof. The Valley View changed its northern line, so as not to include the discovery shaft of the Silver Top. The adjustment as made did not change any of the boundaries of the Silver Top in so far as the portion of the ground in dispute in this action is concerned. These claims were among the pioneer locations in Tonopah, and were located prior to the Stone Cabin, owned by complainant. Eeld, that the Silver Top is a valid location, that the change in the overlapped lines of the Valley View affected only the rights of the owners of those claims, and that the subsequent locator of other adjoining claims was not injured thereby, and is not in a position to complain or take advantage of any overlapping of the lines between the Silver Top and Valley View.</p> <p>2. Same—Discovery op Mineral Octstde op Discovery Shapt.</p> <p>It also appears that other discoveries of a mineral lode were made by the locator of the Silver Top at different places within the lines of that claim, and outside of the ground covered by the Valley View location, within the 90 days allowed him to perfect and complete his location, before the Stone Cabin was located. The Stone Cabin cannot for this reason claim any priority over the Silver Top.</p> <p>8. Same—Boundaries—Moving op Corners.</p> <p>Where, as shown by a preponderance of the evidence, the corner of a mining claim was established and marked by a monument and stake when the claim was located, and had never been moved by the owner, he or his grantees are entitled to a patent to the boundary so marked, where it can be ascertained, as against a subsequent locator of a conflicting claim, who, with knowledge of the prior claim, made no attempt to ascertain its lines, although such corner may have been moved by others.</p> <p>4. Same.</p> <p>Under the facts and principles of law applicable to this case, held, that defendant has established a better right to the ground in controversy.</p>

<p>In Admiralty. Suit for collision and proceeding for limitation of liability.</p>

<p>In Admiralty. Suits for collision, and petition for limitation of liability.</p>

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

<p>1. Collision—Steamer and Car Float in Tow—Crossing—Failure to Stop.</p> <p>A collision occurred at nigbt in Hell Gate between a steamer bound •from Boston to New York and a car float on the side of a tug being towed up the East river. The signals made by the steamer were not heard by the tug, and the vessels were not seen by each other until they were only about 1,000 feet apart, although their lights were burning. Sold, that both were in fault for failing to keep a good lookout, that the steamer was further in fault for failure to stop when danger of . collision was imminent, and the tug also fQr failing to stop in time when her signals to the steamer were unanswered.</p>

<p>1. Wharves—Injury of Boat from Storm—Inevitable Accident.</p> <p>The injury of a barge while moored to a pier during a gale of unusual severity, which caused injury to many other vessels at the same place, held to have been due to inevitable accident, for which the owner of the wharf was not responsible.</p>

<p>1. Seamen—Forfeiture of Wages by Desertion—Rev. St. § 4516.</p> <p>Where a seaman employed by a master during a voyage to take the place of one discharged by reason of illness, although not of the same grade as the one whose place he took, as required by Rev. St. § 4516, as amended by Act Dec. 21, 1898, c. 28, 30 Stat. 755 [U. S. Comp. St. 1901, p. 3071], was able to perform the work to the satisfaction of the master, and no complaint was made by the other seamen, the latter were not justified, by reason of such employment, in leaving the ship at an intermediate port, and by their desertion forfeited their right to recover wages.</p>

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

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

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

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

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

<p>1. Federad Courts—Jurisdiction—Must Affirmatively Appear.</p> <p>In every case the question with which a federal court is first confronted is that of its jurisdiction both over the subject-matter and of the party, and this jurisdiction must affirmatively appear upon the record.</p> <p>2. Same—Foreign Corporation—Service on Agent.</p> <p>There are but two means by which a federal court can obtain jurisdiction over a foreign corporation: The one by voluntary appearance, and the other, if the corporation is prosecuting its business in the state where sued, by service of process upon some officer or agent in that state appointed to there transact and manage its business and representing the corporation in such state. Service upon an agent of such corporation is not service upon the corporation', unless it be engaged in business in the state where the agent is served and he be appointed to act for it there.</p> <p>¶ 2. Serviee of process on foreign corporations, see note to Eldred v. Palace Car Co., 45 C. C. A. 3.</p> <p>& Same.</p> <p>A return to process issued for a foreign corporation as defendant in an equity suit in a federal court, showing service on an officer of the corporation, is not sufficient to authorize the court to entertain jurisdiction, where it does not appear either by such return or from the record that the corporation was at the time engaged in doing business in the state.</p> <p>4. Witnesses—Compelling Attendance—Power to Require Corporation to Produce Officer.</p> <p>A court is without power to compel a corporation to produce one of its officers, who is beyond the jurisdiction of the court, as a witness, the corporation itself having no power, and being under no legal duty, to compel the officer’s attendance.</p> <p>5. Process—Motion to Quash—Duty to Determine before Considering Merits.</p> <p>Defendant corporation appeared specially and filed a motion to quash the service, which was referred to a master for hearing. Jurisdiction over the defendant did not appear from the marshal’s return, or otherwise from the record. Held, that an order suspending the hearing before the master until defendant should produce its president as a witness, and in the meantime granting a temporary injunction as prayed in the bill, was erroneous, both because in the state of the record the court was without jurisdiction to consider the case on the merits, and also because it was without rightful authority to compel the defendant to produce its officer as an adverse witness or to grant the injunction as a penalty for its failure to do so, there being no evidence that it was responsible for the fact that the officer was without the jurisdiction and could not be served with subpoena.</p> <p>6. Same—Waiver of Objection—General Appearance.</p> <p>When a party appears specially to object to the jurisdiction, or to move to set aside the service of process, he does not waive the illegality in the service if after such motion is denied he answers to the merits, nor by appealing from a decree or order affecting the merits entered by the court while withholding its judgment on the question of its jurisdiction. Such illegality in the service is waived only when, without having insisted upon it, he pleads to the merits.</p> <p>¶ 6. Effect of appearance, see note to O’Connell v. Reed, 5 C. C. A. 594.</p> <p>See Appearance, vol. 3, Cent. Dig. §§ 52, 143; Process, vol. 40, Cent. Dig. § 253.</p>

<p>1 Master and Servant—Defective Tools—Assumption of Risk by Servant,</p> <p>When a defect in a tool or appliance is called to the master’s attention by the servant who is working with it, and the master directs or requests the servant to continue to use it in its defective condition for the time being, promising to have it soon repaired or to supply a better, the servant, by complying with such order or request, cannot be regarded as having assumed the risk of injury therefrom, unless the danger is so great or imminent that a person of ordinary prudence would not have continued to use the defective tool, although requested or ordered to do so.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. §§ 642, 645, 647.</p> <p>& Review on Appeal—Misconduct of Jury—Taking Exhibits to Jury Room.</p> <p>Where certain tools were introduced in evidence and repeatedly exhibited to the jury on the trial of an action for the personal injury of a servant, largely as bearing on the issue of contributory negligence raised by defendant, the fact that such tools were taken to the jury room, and were examined by the jury while considering their verdict, even contrary to the direction of the court, will not vitiate a verdict for plaintiff, when it does not appear that such action was in any way prejudicial to the defendant, or that plaintiff was instrumental in causing the exhibits to be so taken by the jury. Especially such verdict will not be set aside on appeal when it has been approved by the trial court.</p> <p>3. Same—Remarks of Counsel—Sufficiency of Record.</p> <p>The proper method of bringing before an appellate court for review remarks made by counsel, or a line of argument deemed improper, is to call the matter to the attention of the trial court by a seasonable objection, and by taking an exception to the court’s action if the objection is overruled, and incorporating the exception, together with a statement of the remarks complained of, or the line of argument pursued, in the bill of exceptions. An appellate court cannot consider such matter where it only appears in the record from motions and affidavits filed after the trial, in connection with a motion for a new trial, and incorporated in the bill of exceptions; the allowance of such bill not being equivalent to a certificate by the trial judge of the truthfulness of the statements made In the papers so filed.</p>

<p>1. Evidence—Hearsay—Statements.</p> <p>Testimony giving a statement by the young daughter of the owner of a building destroyed by fire as to the place where the fire started, made two hours after the fire broke out, and in another place, was inadmissible as hearsay.</p> <p>2. Review on Appeal—Order op Introduction op Testimony.</p> <p>The admission in rebuttal of testimony which is properly rebuttal evidence is not error for which the judgment will be reversed, merely because other evidence as to the same matter was introduced in chief; the order of the introduction of evidence being a matter in the legal discretion of the trial court, which discretion, in the absence of gross abuse, is not reviewable by the appellate court.</p> <p>¶ 2. See Appeal and Error, vol. 3, Cent. Dig. § 3851.</p> <p>8. Same—Instructions.</p> <p>The refusal of instructions asked is not reversible error, where the rules embodied therein are given in clear language in the charge of the court, which is not excepted to.</p> <p>4. Instructions—Inference prom: Failure to Call Witnesses.</p> <p>Where persons who had been subpoenaed as witnesses by both parties, and whose depositions had been taken by defendant, were present during the trial, but were not called by either party, the court properly instructed the jury that they should draw such inference from the fact as in their judgment was fair and reasonable, and properly refused to instruct, as asked by defendant, that the jury had a right to infer from the fact that such witnesses were not called by plaintiff that their testimony would not have been favorable to plaintiff.</p> <p>5. Review on Appeal—Form op Verdict—Question not Raised Below.</p> <p>A possible irregularity in the form of the verdict, as where the petition contained two counts, on one of which the jury were instructed to find for defendant, and they returned a general verdict for plaintiff, cannot be-first urged in the appellate court as ground for reversal of the judgment, where it does not appear that exception was taken at the proper time in the trial court, or that such court was asked to cause the findings to be stated in the desired form.</p>

<p>1. United States—Contbact fob Sale of Logs—Selection of Tbebs bn Government Agent.</p> <p>Where the United States, through its agents, selected logging superintendents, who were intrusted with supervision of the cutting of timber on an Indian reservation, and the duty of determining the particular trees which came within the definition of “dead and down timber,” which duty required the exercise of judgment and discretion, and such judgment and discretion were honestly exercised, the government is bound thereby* and cannot charge one to whom it contracted to sell the logs after they should be cut and banked with liability beyond the contract price, on the ground that some of the logs which were cut and banked, and which the purchaser took possession of under his contract, were cut from living green trees.</p>

<p>1. Patents—Infringement—Shingle-Edging Machine.</p> <p>The Sears patent, No. 335,635, for an attachment to shingle machines for edging shingles, consists of a combination of mechanical elements, all of which were old, to accomplish a result which was not new, since similar machines had long been used to trim boards to a uniform width. The patent is therefore not of a primary character, and, if it discloses patentable invention, must be limited to the precise construction shown, and is not infringed by a machine in which any element of the patented machine is lacking.</p> <p>2. Same—Sufficiency of Proof.</p> <p>A case of infringement is not made out where the undisputed testimony shows that the alleged infringing machine was made and in use prior to the filing of the application for the patent sued on, and there is no evidence to carry the date of invention back of such filing.</p>

<p>1. Patents—Invention—Fountain Pens.</p> <p>Claims 8, 9, and 17 to 26, inclusive, of the Waterman patent, No. 604,690, for a fountain pen, relate solely to details in construction, involving only mechanical skill, and are void for lack of patentable invention.</p>

<p>1. Patents—Suit For Infringement—Evidence of Prior Art.</p> <p>In a suit for infringement, in which the validity of the patent is in issue, the court will take judicial notice of other patents introduced in evidence in another suit in ascertaining the state of the art.</p> <p>2. Same—Validity—Determination on Demurrer.</p> <p>Where the want of novelty of a device is manifestly apparent on the face of the patent, the issue may properly be determined at the threshold of the case on demurrer.</p> <p>3. Same—Invention—Manifolding Sales Books.</p> <p>The Beck patent, No. 647,934, for a manifolding sales book, the only element of novelty being the cutting out of a thumb space in the side of the carbon sheet to permit the removal of the duplicating sheet without soiling the same or the hands, which result was also accomplished by prior devices, is void for lack of patentable novelty.</p> <p>4. Same—Evidence of Invention—Commercial Success.</p> <p>The commercial success of a patented article can only be considered on the issue of invention, where such issue is in serious doubt.</p> <p>¶ 4. See Patents, vol. 38, Cent. Dig. § 39.</p>

<p>1. Foreign Corporations—Statutes—Constitutionality—Right to Contest.</p> <p>Since a foreign corporation is entitled to do business in the state only at the discretion of such state, and under such terms and conditions as it may see fit to enforce, such corporation is not entitled to contest the constitutionality of a state statute imposing terms on which it may be allowed to do business within such state.</p> <p>¶ 1. Status of foreign corporations, see note to Republican Mountain Silver Mines v. Brown, 7 C. C. A. 419.</p> <p>2. Same.</p> <p>Whether a statute prohibiting insurance companies from combining to establish rates, etc., and providing for the revocation of the license of a foreign company failing to comply therewith, was unconstitutional as to domestic companies, and therefore was void in toto, could not be determined in a suit by a foreign insurance company having no right to contest the constitutionality of the law.</p>

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

<p>1. Bankruptcy—Discharge—Findings oe Referee.</p> <p>A finding of facts on an issue as to the right of a bankrupt to a discharge, made by a referee who has seen and heard the witnesses, should be upheld, except when it clearly appears to be wrong, since much may depend upon the truthfulness as well as the accuracy of the witnesses.</p>

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

<p>1. Receivers—Unauthorized Taking of Property—Costs and Expenses.</p> <p>Where property of a defendant is taken from his possession hy a receiver against his consent under an erroneous order which he successfully resists in an appellate court, he is entitled to the return of such property without charge of any kind against it or against him by reason of the proceedings. He cannot justly be charged with the cost of keeping stock so taken on the ground that it was not an expense of the receivership, but one incurred for the preservation of the property, and especially where he was actually subjected to loss by being deprived of the use of the stock.</p>

In 1893 Schumacher owed the American Exchange National Bank $30,000, and deposited as collateral security 1,000 shares of American Cereal Company stock owned by him, with authority to the bank to sell it at public or private sale, without demand or notice, if the debt was not paid at maturity. On December 17, 1896, the debt being long past due and unpaid, the bank sold the collateral at private sale to Walter D. Douglas for $30,000.

<p>1< Criminal Law—Limitation of Prosecution—Payment to Member of</p> <p>Congress for Procuring Government Contract. Rev. St U. S. §§ 1781, 1782 [U. S. Comp. St 1901, p. 1212], make it a criminal offense for any member of Congress to receive or agree to receive any money, property, or other valuable consideration for procuring or aiding to procure any contract from the government, or to receive any compensation for services rendered in relation to any claim or contract in which the United States is a party. Section 1781 also makes it an offense for any person to give or agree to give any money, property, or other valuable consideration for the procuring or aiding to procure such contract by a member of Congress. Held, that the delivery to a member of Congress of a nonnegotiable note made by a government contractor, promising to pay a certain sum as the proceeds of the contract were received, executed pursuant to an agreement to pay such member for his services in procuring the contract, did not constitute the giving or receiving of “property” or a “valuable consideration,” within the meaning of the statute, such note being made unlawful and invalid by the statute itself; and that indictments under the statute, based on payments subsequently made and received in accordance with the terms of the note, were not barred by limitation, where such payments were made within three years, although the note was delivered more than three years prior to the finding of the indictments.</p>

In Equity. Suit for infringement of patent. On defendant’s exceptions to master’s report, and complainant’s motion for increased damages under Rev. St. § 4921 [U. S. Comp. St. 1901, p. 3395]

<p>1. Decree—Opening—Newly Discovered Evidence.</p> <p>A defendant applied for the opening of an interlocutory decree, sustaining certain patents and finding infringement, on the ground of newly discovered patents alleged to anticipate or limit those in suit, and for a rehearing of the case after the introduction of such additional patents. Held, that the application must be denied on three independent grounds; first, because it did not appear that any search prior to the hearing was made on the part of the defendant for patents germane or allied to those in suit according to their proper and usual location, arrangement and classification in the patent office; secondly, because it appeared by the admission of the solicitors of the defendant that they had knowledge for more than a week before the signing of the decree of the existence of the alleged newly discovered patents and withheld that knowledge from the court until several days had elapsed after the decree was signed, although both parties by their solicitors were present before the court at the time and had knowledge of the formulation and settlement of the terms of such decree; and, thirdly, because from an examination of the patents sought to be introduced, in connection with the expert and other affidavits and the record of the case, it appeared that those patents were immaterial so far as the result embodied in the decree was concerned.</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. Suit for collision. On exceptions to report of special commissioner as to damages.</p>

<p>1. Life Insurance—Validity of Contract—Insurable Interest of Beneficiary.</p> <p>A person may effect insurance on Ms own life in good faitb, paying the premiums therefor himself, and have the policy made payable to any beneficiary he chooses, and in such case the company cannot set up the want of insurable interest of the beneficiary to defeat the policy.</p> <p>¶1. See Insurance, vol. 28, Cent. Dig. § 138.</p> <p>2. Same—Estoppel to Plead Defense.</p> <p>A life insurance company is estopped to set up the want of insurable Interest of the beneficiary in a policy taken out and maintained by the insured, although it contained a clause that “all claims under this policy shall be subject to proof of interest” where the company had knowledge of such lack of insurable interest from the beginning, the beneficiary being described in the policy as the “friend” of the insured, but issued the policy) and continued to receive the renewal premiums thereon without objection.</p>

In Equity. Final hearing on pleadings and proofs. The suit is for infringement of United States letters patent 524,254, August 7, 1894 (application filed April 1, 1893), to Paul Julius, assignor to complainant, for safranine azo naphthol lake. Patented in England, No. 4,543; issued January 2, 1892, on an application of March 13, 1891.

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

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

<p>In Admiralty. On motion to dismiss intervening petition.</p>

<p>1 Extradition — Treaty with Great Britain — Place of Preliminary Hearing.</p> <p>Tbe extradition treaty between Great Britain and the United States, and Rev. St. § 5270 [U. S. Comp. St. 1901, p. 3591], enacted to carry into effect the provisions of extradition treaties, do not vest a commissioner with power to issue a warrant upon which the accused may lawfully be arrested in another state and returned for examination before such commissioner. To authorize the extradition of a person under such treaty the charge must be one which would constitute an offense under the laws of the place where he is found, and the evidence such as would justify his apprehension and commitment for trial if the offense had been there committed; and, since the treaty recognizes the dual nature of our- government, and the laws governing the offense may be either national or local, it is clearly contemplated that the hearing shall be within the state, district, or territory where the accused is found.</p>

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

<p>L Negotiable Instruments—Notes Given fob Patent Rights Indicating Consideration.</p> <p>Act Pa. April 2, 1872 (P. L. 60) § 1, providing that, when a negotiable instrument is given in consideration of patent rights, the words “given for a patent right” shall be put on the face thereof, and the instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder; and section 2, providing that if any person shall take or transfer a negotiable instrument not having such words on its face, knowing that the consideration was patent rights, every such person shall be guilty of a misdemeanor—does not make void a negotiable instrument given for such a consideration without such words on its face, or affect the right of recovery thereon of a bona fide purchaser without notice of its consideration.</p> <p>2. Same—Action by Pledgee—Crediting Money Received from Third Person.</p> <p>The pledgee of a note in an action against the maker need not credit money received by him from a person who was only secondarily liable on a guaranty of payment of the pledgor’s debt.</p>

The petition in this case presents the nature and character of this proceeding. It reads as follows: “The United States of America, plaintiff, complains of Walter O. Peacock, defendant, for cause of action against the said Walter G. Peacock, alleges as follows, to wit: That heretofore, and on, to wit, the 2d day of July, A. D. 1902, in order to secure the registry, under the laws of the United States, of a certain vessel known as the ‘Jiilia E. Whalen,’ the said Walter 0.

<p>1. Insurance—Award—Conformity to Submission—Failure to Find Sound Value.</p> <p>Where both an insurance policy and a submission to appraisal thereunder require the finding of both sound value and damage, a failure of the appraisers to find the sound value is a fatal variance, which cannot be helped by assuming that the blank left in the award where the sound value should have been inserted was intended as a finding that there was no sound value, nor by a contention that the finding of sound value was immaterial.</p> <p>¶ 1. Conditions of insurance policies as to arbitration, see notes to Insurance Co. v. Alvord, 9 C. C. A. 628; Assurance Co. v. Decker, 39 C. C. A. 389.</p> <p>2. Samé—Notice of Hearing—Failure to Give—Effect.</p> <p>Where appraisers appointed to estimate a loss under an insurance policy on a brick building, the woodwork of which had been completely destroyed, and the walls partially broken down, failed to give notice to the parties of the time and place of the appraisal, so as to permit the production of evidence, the award was void.</p> <p>¶ 2. See Insurance, vol. 28, Cent. Dig. § 1429.</p> <p>S. Same—Waiver.</p> <p>The fact that an insured, after a submission to appraisal of a loss under his policy, saw the appraisers on the street, but failed to ask to be heard, or to object to their proceeding without notice, he did not thereby waive notice of the time and place of the appraisement.</p> <p>•4. Same—Suit Setting Aside Award—Damages—Jurisdiction of Equity.</p> <p>Equity, having obtained jurisdiction for the purpose of setting aside an award of insurance arbitrators, may properly retain the case to determine the amount of damages, and render decree therefor.</p>

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

<p>In Error to the District Court of the United States for the District of Hawaii.</p> <p>Am information was filed against H. Hackfeld & Co., Limited, a corporation, charging it with violating the provisions of section 10 of the act of Congress entitled “An act in amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor,” approved March 3, 1891, c. 551, 26 Stat. 1086 [U. S. Comp. St. 1901, p. 1299], which provides as follows: “That all aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came; and if any master, agent, consignee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master, agent, consignee, or owner shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than three hundred dollars for each and every offense; and any such vessel shall not have clearance from any port of the United States while any such fine is unpaid.” The information alleged, in substance, that the appellant did refuse and neglect to return to the port of Yokohama two Japanese immigrants, Terujiro Yamoto and Hachiero Irie, whom it had brought from that port to the port of San Francisco, and who had been denied admission to the United States at the latter port The case was tried before the court without a jury on an agreed stipulation of the facts. The stipulation of facts contains the following: “That on the 12th day of November, A. D. 1902, the said steamship Korea did arrive at the port of Honolulu, in the district and territory of Hawaii; that at the time of the arrival of said steamship Korea at said port of Honolulu the said immigrants were still on board of said vessel; that said Japanese immigrants, together with certain deported Chinese, were placed in a room on board said vessel, and locked up by the steerage steward of said vessel; at 12 o’clock midnight, of said 12th day of November, A. D. 1902, said Japanese were still on board said vessel in said room; that between that time and 5 o’clock on the morning of the 13th day of November, A. D. 1902, said Japanese had effected their escape; that the only method of egress was through portholes, which were nearly twenty-five feet above the water; that this method of escape could not have been reasonably anticipated by the master or officers or agents of said steamship Korea; that said escape did not occur by vis major or inevitable accident, and that said escape did not occur by reason of any negligence or lack of proper care on the part of the officers of the vessel or said defendant; that the said defendant made search for said escaped immigrants, but up to the present time have not apprehended the said immigrants, and said immigrants have not been returned to Japan.” On this stipulation of facts the plaintiff in error was found guilty of the misdemeanor charged, and was adjudged to pay a fine of $600. To review that judgment the writ of error is taken.</p>

<p>1. Customs Duties—Classification—Fox Behries.</p> <p>Held, that the expression, “berries, edible, in their natural condition,” in paragraph 262, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], means berries which are in their natural condition as imported, and are edible either in that state or after cooking, and that fox berries imported in barrels filled with water are in their natural condition, and are included within said provision in paragraph 262, and not within paragraph 559 of said act, section 2, Free List, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1679], relating to “berries, green, ripe, or dried, * * * not specially provided for.”</p>

<p>1. Patents—Patentable Novelty—Package eob Biscuits.</p> <p>The Peters patent, No. 621,974, for a method of and means for packing biscuit, crackers, or the like, which consists of placing upon a carton blank of any suitable shape a sheet of waxed or paraffined paper and folding the two together in completing the carton, so that the ends of the two sheets are interfolded, the purpose being to more effectually exclude dust or moisture, is void for lack of patentable novelty, in view of the prior art, which disclosed both the cartons and the paraffined linings.</p> <p>2. Same—Evidence oe Invention—Utility.</p> <p>The utility of a device is not in itself evidence of patentable invention; although it is entitled to weight when that question is doubtful.</p> <p>¶ 2. See Patents, vol. 38, Cent. Dig. § 39.</p>

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

<p>In Admiralty. Suit to recover damages for obstructing navigation of the Chicago river.</p>

<p>1. Criminal Law—Lotteries—Transportation op Tickets—Statutes—Construction.</p> <p>Act March 2, 1895, c. 191, 28 Stat. 963 [U. S. Comp. St. 1901, p. 3178], provides that any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same, or carry from one state to another in the United States, any ticket of a lottery, shall be punished, etc. EeM, that such statute did not prohibit the transportation of lottery tickets from a state to the municipality of the District of Columbia.</p> <p>2. Same.</p> <p>Such section did not prohibit the transportation of lottery tickets from one state “through” another state or states, where the ultimate destination of the shipment was not within one of the United States.</p>

<p>1. Bankruptcy—Meeting op Creditors—Allowance op Participating Claims.</p> <p>The fact that at the head of the proof of a claim in bankruptcy the title of the court is not given, as required by Gen. Order 21 and Form No. 31 (89 Fed. ix, xlii), is not sufficient to vitiate the proof so as to prevent the creditor’s participation in the creditors’ meeting.</p> <p>2. Same.</p> <p>Where the consideration for a claim against a bankrupt is stated in the proof to be for “printing done for said bankrupt at his request heretofore, to wit, in September, 1903, as per bill rendered,” the specification is insufficient, as the items of the account should be given; and the creditor is not entitled to participate in the creditors’ meeting.</p> <p>8. Same.</p> <p>- Where, in the proof of a creditor’s claim in bankruptcy, the debt is said to be for “goods, wares, and merchandise sold and delivered by claimant to bankrupt, at its request, consisting of green truck and vegetables, amounting to said sum of $140, with interest from * * *, being the balance due on said claim on book account,” the specification is insufficient, in the absence of the items of the account, and the creditor is not entitled to participate in the creditors’ meeting.</p> <p>4 Same.</p> <p>■ Where the proof of a creditor’s claim in bankruptcy recites that the consideration is “2,500 jar tops at $2.00 per 1,000=$50. % blue, % white, % red”—the specification is sufficient, and the creditor is entitled to participate in the creditors’ meeting.</p> <p>6. Same.</p> <p>The absence of the date to a creditor’s claim in bankruptcy is a fatal defect, which will prevent his participation in the creditors’ meeting.</p> <p>6. Same—Letter of Attorney.</p> <p>In bankruptcy proceedings under Gen. Order No. 21, requiring that a letter of attorney executed on behalf of a partnership must show that the person executing it is a member of the firm, the fact that such statement is contained in the proof of dqbt accompanying the letter, though absent from the letter itself, is sufficient to entitle the attorney to represent the creditor in the creditors’ meeting.</p> <p>7. Same—Proof of Claim—Sufficiency.</p> <p>Where, in a creditor’s proof of claim in bankruptcy, the consideration is stated as “goods and merchandise sold,” as evidenced by two notes, a memorandum of which is said to be given in the bill attached, the specification is insufficient to entitle the creditor to participate in the creditors’ meeting, for, if he intends to stand on the account, he should have given the items, and, if on the notes, they should be produced and filed.</p> <p>8. Same—Production of Letter of Attorney—Termination of Meeting.</p> <p>Where a power of attorney authorizing its holder to represent a creditor at a meeting of a bankrupt’s creditors is mislaid, and not' produced until the meeting is over, the attorney is properly refused the right to participate.</p> <p>0. Same—Trustees—Qualification.</p> <p>The fact that one who is chosen by the creditors as trustee in bankruptcy advised the voluntary assignment under the state law which constituted the act of bankruptcy, does not render him incompetent as trustee.</p> <p>10. Same.</p> <p>The fact that one who Is chosen by a bankrupt’s creditors as trustee had a law office with an attorney who represented certain stockholders of the bankrupt, who claimed to be creditors, but whose claims were to be contested, and that these persons were former clients of the trustee, and put their claims into his associate’s hands at his suggestion, and that the trustee's election was with the aid of such persons, is insufficient to make his selection an improper one, but merely calls for its close scrutiny.</p> <p>11. Same.</p> <p>The selection by a bankrupt’s creditors of a trustee is not to be interfered with by the court unless it clearly imperils the fair and efficient administration of the estate.</p>

<p>At Law. On motion to strike out paragraphs 5 and 7 of the first count of the substituted complaint.</p>

<p>1. Renovated Butter—Provision for Inspection and Marking—Construction of Statute.</p> <p>Tbe purpose of section 5, Act May 9, 1902, c. 784, 32 Stat. 196 [U. S. Comp. St. Supp. 1903, p. 269], relating to process or renovated butter, is to provide for tbe sanitary inspection and tbe marking and branding of such butter at the place of manufacture, to the end that none shall be shipped from the factory which can in any way be injurious to the health of the consumer, and the section authorizes the Secretary of Agriculture to cause such inspection to be made, and to “make all needful regulations for carrying this section into effect.” A regulation, however, which prohibits a dealer, receiving or handling such butter after it has been duly inspected, marked, and branded, and shipped from the factory, from obliterating the marks or brands thereon has no relation to such sanitary purpose, and finds no warrant in the statute, being calculated only to prevent fraud on the part of the dealer in his relations with his customers, and there is nothing in the statute which will support an indictment or information for the violation of such a regulation.</p>

<p>Proceedings for Deportation of Chinese Persons. On appeal from decision of commissioner.</p>

<p>In Bankruptcy. On motion to confirm referee’s report recommending the bankrupt’s discharge.</p>

<p>1. Federal Courts—Following State Practice.</p> <p>It is the settled rule of the federal court in Connecticut that it will follow the practice of the state court which permits a defendant to suffer a default and have a hearing in damages to the court</p> <p>■2. Removal of Causes—Condition of Cause After Removal.</p> <p>A defendant in a state court in Connecticut, who, after filing notices of his intention to suffer a default and to refuse to plead over and to move for a hearing in damages to the court, in accordance with the state practice, removes the cause into the federal court, is not required to file such notices a second time in that court, the cause standing after removal in the same condition as it did before in the state court.</p> <p>¶2. See Removal of Causes, vol. 42, Cent. Dig. § 241.</p>

<p>In Equity. On motion by defendant to dismiss.</p>

<p>In Bankruptcy. On motion to vacate private sale of bankrupt estate by trustee pursuant to directions of referee.</p>

<p>On application by the importer to review a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of Boston on the importation in question.</p> <p>The decision of the board was ah unpublished one, following In re Goat & Sheepskin Importing Company, G. A. 4835, which reads as follows:</p> <p>“FISCHER, General Appraiser. The merchandise in question consists of tanned, but unfinished, sheepskins, which were returned for duty by the local appraiser as ‘leather not specially provided for.’ Duty was assessed thereon at the rate of 20 per cent, ad valorem, under the provisions of paragraph 438 of the act of July 24, 1897, c. 11, § 1, Schedule N, 30 Stat 192 (U. S. Comp. St 1901, p. 1676). The importer claims said merchandise is dutiable at the rate of 10 per cent, ad valorem, under the provisions of said paragraph, as ‘skins for morocco, tanned but unfinished.’ These are skins of the sheep known as ‘New Zealand basil’ or ‘Cape sheep.’ The evidence fully convinces us that the morocco leather of commerce is made only from the skins of goats, and that the class of leather made from the kinds of skins before us is not known as morocco, but is known as imitation morocco. Commerce clearly distinguishes between the two. When morocco leather .is asked for, leather made from goatskins is clearly intended, and when dealers buy leather made from sheepskins it is designated as imitation morocco. Upon all the evidence before us, we find that the articles in question are not skins for morocco, and overrule the protest. Reference is made to the ease of United States v. Stone, 101 Fed. 713, 41 C. C. A. 624, wherein the United States Circuit Court of Appeals held that paper known commercially as ‘imitation parchment paper’ was not dutiable as parchment paper, but as paper not otherwise provided for.”</p> <p>On proceedings to review this decision before the Circuit Court much evidence additional to that before the board was taken in behalf of the importer, eight or nine witnesses being examined, whose evidence showed that, while goatskins are chiefly used for making morocco, certain .kinds of sheepskins, particularly the kind in question, known as “New Zealand basils,” or “Cape sheepskins,” are not only chiefly used for this purpose, but almost exclusively.</p>

<p>1. Equity—Procedure—Framing Issues for Jury.</p> <p>A federal court of equity will not, on demand, after the joining of issue by the pleadings, but before the evidence has been taken in accordance with the usual practice in equity, frame issues to be submitted to a jury, especially when it cannot be known at that stage of the case that such issues will be decisive or even material.</p>

<p>1. Removal of Causes—Causes Removable—Suit on Claim Against Estate.</p> <p>A suit on a claim against tbe estate of a decedent is within the removal act, although the claim was originally filed in the probate court.</p> <p>¶ 1. Probate jurisdiction of federal courts, see note to Bedford Quarries Co. V. Tomlinson, 36 C. C. A. 276.</p> <p>2. Same—Diversity of Citizenship—Real Party in Interest.</p> <p>Under the Illinois statute, which gives any one aggrieved by the order of a probate court allowing a claim the right to appeal, as construed by the Supreme' Court of the state, any person appealing, other than the administrator, may prosecute the appeal in his own name. EM, that where the claimant was the administrator, and an administrator pro tern, was appointed by the probate court to represent the estate, but the claim was actually contested by an heir of the decedent, who appealed from an order allowing the claim, the question of diversity of citizenship between the parties was to be determined upon the citizenship of such appellant, and not upon that of the administrator pro tern.</p> <p>¶ 2. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp V. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>3. Same—Time for Removal—Trial in Probate Court.</p> <p>An heir of a decedent, who contests a claim against the estate in the probate court in Illinois, which is a court of record, and there goes to trial-on the merits, cannot thereafter remove the cause from the circuit court, to which he has taken it on appeal.</p> <p>¶ 3. See Removal of Causes, vol. 42, Cent. Dig. § 10.</p>

<p>1. Aliens—Chinese—Deportation—Habeas Corpus — Detention — AuthorITY.</p> <p>Under Act Cong. Feb. 14, 1903, c. 552, § 7, 32 Stat. 828 [U. S. Comp. St. Supp. 1903. p. 46], placing jurisdiction of the deportation of aliens in the Department of Commerce and Labor, a return to a writ of habeas corpus by an alleged Chinese alien, showing that defendant was an officer of immigration under control of the commissioner general in charge of the port where the alien attempted to enter, by designation of the Secretary of Commerce and Labor, and that he held such Chinese person as such officer, sufficiently showed authority for the detention.</p> <p>1. Citizenship of Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.</p> <p>2. Same—Place op Birth—Determination —Jurisdiction op Executive Officers.</p> <p>Under Act Cong. Feb. 14, 1903, c. 552, § 7, 32 Stat. 828 [U. S. Comp. St Supp. 1903, p. 46], giving the Department of Commerce and Labor jurisdiction of the admission of aliens, and authorizing such department to prescribe rules and regulations for the determination of the rights of aliens to admission, the executive officers of such department had authority to determine whether or not a Chinese person seeking admission had been born in the United States, and was therefore a citizen entitled to enter.</p> <p>8. Same—Rules.</p> <p>Under Act Cong. Feb. 14, 1903, c. 552, § 7, 32 Stat. 828 [U. S. Comp. St. Supp. 1903, p. 46], placing jurisdiction of the admission of aliens in the Department of Commerce and Labor, such department had authority 'to prescribe rules of evidence relating to presumptions and burden of proof in the determination of an alien’s right to admission.</p>

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

<p>1. Shipping—Construction of Charter—Option of Charterer to Cancel.</p> <p>A charter party contained the following provision: “Captain to furnish charterers a certificate from charterers’ marine surveyor (at San Francisco) that the vessel is in proper condition for the voyage. Should the vessel fail to pass a satisfactory survey this charter to be void at charterers’ option.” Held, that such provision was for the purpose of determining the seaworthiness of the vessel for the voyage in hull and equipment, and that the charterers could exercise the option given to cancel the charter only on an adverse report of their surveyor after an actual survey, which it was incumbent on them to have made unless prevented by the fault of the owners.</p> <p>2. Same—Seaworthiness of Vessel—Duty of Charterer to Make Survey.</p> <p>Neither the age of a vessel, nor the length of time she had been upon her copper, nor the fact that owing to her age insurance could not be obtained on the cargo intended to be shipped by the charterers, establishes that she was in fact unseaworthy for the voyage, so as to authorize the charterers’ surveyor to so certify and entitle the charterers to cancel the charter, where it provided for a certificate to be made bn an actual survey.</p> <p>8. Same—Breach of Charter—Measure of Damages.</p> <p>The measure of damages for a total breach of a charter by the charterer by refusing to accept the vessel is the net amount that would have been earned by the vessel under the charter, less the net amount earned, or which might with reasonable diligence have been earned during the time required for the making of the voyage under the charter.</p>

<p>On Rule for Attachment of Witness.</p>

<p>In Bankruptcy. On rule for attachment of witness.</p>

<p>1. Bankruptcy—Liens—Attachment after Filing of Petition. -</p> <p>A sale of property of a bankrupt under a judgment obtained in an attachment suit commenced against him after the filing of the petition in bankruptcy, on which the adjudication was subsequently made, was void as to the creditor, and the trustee is entitled to recover the proceeds.</p> <p>¶1. See Bankruptcy, vol. 6, Cent. Dig. § 422.</p>

<p>1. Contempt—Alleged Violation of Injunction—Trial of Question of Infringement of Patent.</p> <p>Where, in a proceeding for contempt against a defendant for infringing a patent in violation of the court’s injunction, the question whether the article sold by defendant is an infringement is in dispute and doubtful, it will not be determined on ex parte affidavits, but only after a regular and orderly hearing.</p>

<p>3. Removal of Causes—Local Prejudice—Sufficiency of Showing.</p> <p>A federal court will not grant a petition for removal of a suit, In which a municipal corporation is plaintiff, on the ground of local prejudice, based solely on an apprehension of the effect of such prejudice on the jury in case of a jury trial, where the judge of the state court has power, if justice requires it, to transfer the cause to another county.</p> <p>¶1. Prejudice or local influence as ground for removal of cause- to federal court, see note to P. Schwenk & Co. v. Strang, 8 C. C. A. 95.</p>

The appellees were complainants in the court below in a suit to which Terrence O’Brien, as administrator of the estate of John Sullivan, deceased, and Marie Carrau, were made defendants.

<p>1. Seamen—Statute Regulating Contracts—Construction and Scope.</p> <p>The provision of section 24, Act Dec. 21, 1898 (30 Stat 763, c. 28 [U. S. Comp. St. 1901, p. 3080]), entitled “An act to amend the laws relating to American seamen for the protection of such seamen and to promote commerce,” which expressly makes its requirements as to the shipping of seamen applicable “as well to foreign vessels as to vessels of the United States,” provided there is no treaty which conflicts, is within the power of Congress, and is valid and effective; and the requirements of the act apply to contracts made by seamen in ports of the United States for service on foreign vessels.</p> <p>& Same—Invalidity of Contract—Violation of Statute.</p> <p>Under Rev. St. § 4523 [U. S. Comp. St. 1901, p. 3075], which provides that “all shipments of seamen made contrary to the provisions of any act of Congress shall be void; and any seaman so shipped may leave the service at any time, * * *” a contract for service on a British ship made in an American port, by which the seaman was paid wages in advance, in violation of Act Dec. 21, 1898 (30 Stat. 755, 763, c. 28 [U. S. Comp. St. 1901, p. 3080]), is void, and the seaman may leave the service at any time, and recover full wages for the time served, without deduction on account of the advance.</p> <p>¶ 2. See Seamen, vol. 43, Cent Dig. §§ 121, 122.</p> <p>8. Admibalty—Review on Appeal—Denial op Rehearing.</p> <p>The denial of a motion by respondent for a rehearing in an admiralty suit, to permit the introduction of new evidence, is not ground for reversal of the decree, where respondent did not support his motion with a showing of what the evidence would be, nor present it to the appellate court, as might have been done under the admiralty rules.</p>

This cause comes to this court upon a writ of error by plaintiff in the court below to review a judgment entered for defendant in the United States Circuit Court for the District of Connecticut upon a verdict rendered by direction of the court.

<p>1. Attorney and Client—Character oe Services—Measure of Compensation—Amount Involved—Evidence.</p> <p>Where attorneys were employed by defendant, who was a prospective purchaser of a mine, to render services, both professional and nonprofessional, in examining the articles of incorporation of the corporate owner of the mine, and also to pass on the value of the mine, etc., the admission of evidence in an action for the reasonable value of such services as to the value of the mine, the value, of its production, and the value of the capital stock of the corporation, was not error, especially in view of a charge that it could be considered only for the purpose of determining the amount involved in the transaction, and the results obtained to determine the nature of the responsibility assumed by plaintiffs, and the reasonable value of their services.</p> <p>2. Same—New Trial—Review.</p> <p>The denial of a motion for a new trial by the Circuit Court cannot be reviewed by the Circuit Court of Appeals.</p>

Habeas corpus proceedings were instituted by counsel on behalf of the appellees in the superior court of the state of Washington for King county, alleging their illegal detention at Seattle by the appellant Sister Superior M. Angelique, of the House of the Good Shepherd; said detention being by authority and request of the appellant James P. Lavin, United States immigrant inspector.

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

<p>1. Life Insurance—Application for Change of Beneficiaries.</p> <p>An application for change of beneficiaries in a life policy, merely signed by part of the beneficiaries before death of insured, can have no effect.</p> <p>2. Same—Relinquishment of Rights—Want of Consideration.</p> <p>Though it is the intention of beneficiaries in a life policy by delivery of an instrument to the administrator after death of insured to evidence relinquishment of their rights, it being without consideration, they may revoke it.</p> <p>8. Pleading—Alleging Intention of Instrument.</p> <p>It will not avail one setting out an instrument, which is plainly an application by beneficiaries to change the beneficiaries, to allege that it was intended as an assignment, though such allegation is not denied.</p> <p>4. Bill of Exceptions—Evidence—Presumption on Appeal.</p> <p>In the absence of proof in the bill of exceptions that it contained all the evidence, it will be presumed on appeal that’there was evidence to sustain the ruling below that execution of an assignment was authorized, the bill purporting to contain only the evidence to which any -objection was taken by defendant.</p> <p>¶ 4. Exclusion of evidence from bill of exceptions, see note to Ladd v. Mining Co., 14 C. C. A. 248.</p> <p>6. Replevin—Damages for Detention.</p> <p>Plaintiff in replevin for life policies may recover damages for their detention after they are delivered to the marshal under the writ, defendant’s continued maintenance of his defense and insistence of his right thereto preventing plaintiff from recovering of the insurance company till the end of the litigation.</p> <p>6. Same—Rate of Interest.</p> <p>The rate of interest being lowered by statute pending a replevin suit, the successful plaintiff will recover as damages interest measured by the old rate up to the time of the change, and by the lower rate thereafter.</p>

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>In Murray v. Bender, 109 Fed. 585, 48 C. C. A. 555, this court had before it nearly all of the facts involved in this case. The decree of the lower court in this case was also before this court in King v. Bender, 116 Fed. 813, 54 C. C. A. 317, and the judgment of this court on that appeal has disposed of one of the questions involved in the present appeal. A statement of the facts in this case appears to be necessary to a clear understanding of the law of the case, as established by the previous judgment of this court, and the remaining questions to be determined on this appeal.</p> <p>In the year 1888 the Grand Opera House Company, a corporation, was the owner of certain real property in the city of Butte, in the then territory of Montana. On September 29, 1888, the corporation conveyed the premises to one John Maguire, taking from him a note secured by a mortgage for the purchase price, amounting to $17,000. After the execution, delivery, and recording of this mortgage, Maguire undertook the erection of an opera house upon the mortgaged premises. In the construction of this building Maguire incurred considerable indebtedness for labor performed and materials furnished for the building, resulting in the creation of liens upon the property under the statute of the state. These liens were in due course of proceedings foreclosed by a decree dated January 27, 1890, and the property sold thereunder on the 19th day of May, 1890. On April 10,. 1891, the appellant, Murray, who was the last of several redemptioners from such foreclosure sale, became invested with the title to the property by sheriff’s deed. On May 29, 1891, the Opera House Company commenced an action for the foreclosure of its mortgage upon the property, executed by Maguire in 1888. In this action Murray was made a party defendant, and in a decree entered on March 12, 1895, it was adjudged that the mortgage lien upon the land was superior to the title of Murray, but, as to the building, Murray’s title was adjudged to have priority over the mortgage lien. It was further adjudged and decreed that Murray might at any time after the sale of the premises, and before the expiration of the period for redemption as provided by law, remove from the said premises the building and improvements thereon; but, if he should fail to do so within the time prescribed, then the building and improvements should become a part and portion of said lots, and, after the time for removal specified in the decree, Murray should have no right to remove said improvements, or any of them. This decree was affirmed by the Supreme Court of the state on appeal. Opera-House Co. v. Maguire, 14 Mont. 558, 37 Pac. 607. The premises were sold, pursuant to the decree, on April 15, 1896, and were purchased by the Grand Opera House Company. The right to redeem from this sale expired under the law of the state on October 18, 1896, but prior to that time negotiations were had between Murray and the Grand Opera House Company for either a purchase or sale that would vest the ownership of the entire property in one of the parties. But the negotiations failed, and Murray proceeded to remove the chairs, scenery, and other furniture from the building, and the building from the lot. The chairs, scenery, and other furniture were removed to a warehouse, and when Murray had torn down the front end of the building it was suggested to him that he could buy a controlling interest in the stock of the Opera House Company, which would be much better than removing the building, as the building was of brick. Murray thereupon bought 1,000 or 1,100 shares of the stock of the corporation, which gave him the controlling interest in it. He then suspended the removal of the building, and proceeded to reconstruct it. When the building was reconstructed, Murray had the chairs, scenery, and other furniture removed to the opera house. This removal was completed by December 3, 1896, and on December 10, 1896, the opera house was opened to the public.</p> <p>On December 3, 1896, John O’Rourke commenced an action against the Grand Opera House Company, joining in his complaint two causes of action, one upon the promissory note of the corporation for $762, the other for $585, claimed by O’Rourke to have been paid out by him for the corporation. On the same day, under writ of attachment issued in said cause for both causes of action, the property of the Opera House Company was attached. The corporation appeared and answered the complaint, not controverting the first cause of action, but denying the facts alleged as to the second. On September 16, 1897, judgment was rendered for O’Rourke on the first cause of action, and the ease continued pending as to the other. Upon the judgment so made and entered an execution was issued, and upon December 27, 1897, the attached property was sold by the sheriff to Silas F. King. On December 3, 1896, the same day on which O’Rourke’s action was begun, John O. Bender, the appellee in the present case, began an action against the corporation upon three causes of action, aggregating $700, and on the same day attachment was issued upon his complaint, and thereupon the property of the Opera House Company was attached, subject to the attachment of O’Rourke. The appellee, obtained judgment in his action on May 21, 1898. On December 3, 1896, John F. Forbis also began an action against the corporation to recover $500. On the same day he also caused a writ of attachment to issue and the same property to be attached. His attachment was subsequent to those of O’Rourke and the appellee. On May 21, 1898, Forbis obtained a judgment against the Opera House Company in his action. On December 27, 1898, 12 months after the sale to King, O’Rourke, claiming to have a right of redemption upon his attachment still subsisting for his controverted cause of action, which continued pending after judgment had been entered upon his first cause of action, tendered to King the amount of the purchase money which the latter had paid, together with the statutory interest thereon, for the purpose of redeeming the property. On the same day the appellee served upon the sheriff of the proper county his notice of redemption, and under his said notice paid to the sheriff, for O’Rourke, the amount of money which O’Rourke had tendered to King, together with the amount which O’Rourke claimed to have been secured by his attachment. The appellee, then, as agent and attorney for O’Rourke, receipted to the sheriff for the money which he had tendered for O’Rourke, and as the agent for O’Rourke received the same. These redemptions were made within one year from the date of the sale under execution, that being the time allowed by the Montana law for redemption from execution sales. On January 10, 1899, and within the 60 days allowed by law to redeem from a redemptioner, Forbis, upon his judgment, redeemed from the redemption made by O’Rourke and the appellee. On January 19, 1899, notwithstanding these redemptions, the sheriff executed to the appellant, as purchaser under the O’Rourke judgment, a deed to the premises in controversy. On February 25, 1899, Forbis conveyed back to the appellee all rights which he acquired under his redemption. On April 4, 1899, J. 0. Bender instituted a suit against King and McFarland in the Circuit Court of the United States for the District of Montana, praying that the latter be declared trustees for him as to all rights acquired under the sheriff’s deed. The answer of the defendants denied that O’Rourke, at the time when he attempted to redeem said property, was a creditor of the corporation having a lien against the property subsequent to that upon which the same was sold, or that under said attachment lien he redeemed the property from sale, and denied that the attachment lien of the appellee was subsequent to the judgment and attachment of O’Rourke, and denied that the appellee, under his judgment, redeemed said property from the sale to King, or from the redemption attempted to be made by O’Rourke, and denied that the attachment of Forbis was subsequent to the lien on which the property was sold on execution, and denied that Forbis redeemed from said sale or from said attempted redemption. The defendant McFarland alleged that he-was in possession of the property under a lease from, and that he was paying rent to, the Grand Opera House Company. The decree of the lower court was in favor of Bender, and King appealed. On appeal, this court affirmed the judgment of the lower court, and found all the facts in favor of Bender, decreeing him to be the owner of the real property, and that King held the same in trust for him. King v. Bender, 116 Fed. 813, 54 C. C. A. 317.</p> <p>In this suit the lower court appointed a receiver, who took possession of the property and collected the rents from February 1, 1900. Murray had received these rents up to this time, and insisted that he should still collect them, and also claimed to be the owner of the seats, fixtures, scenery, etc., in the opera house, claiming this property as personalty and not a part of the realty; whereupon the court ordered that Murray be made a party to this suit. On September 23, 1899, the complainant, Bender, filed an amended bill, making James A. Murray and the Grand Opera House Company defendants. In this bill Bender alleged the facts hereinbefore recited, and further alleged that the defendant Murray claimed the chairs, stage scenery, and other fixtures in the opera house, but that the same were annexed to the realty and necessary for the use of the property, and that the same were devoted to such use when the attachments were made on December 3, 1896. The bill recited that McFarland, one of the defendants, obtained his possession of the property under a written lease executed by the Opera House Company on November 1, 1898, through and from the defendant James A. Murray, and that the property which Murray then claimed as his individual property was leased and described as the property of the Opera House Company; that since Bender notified McFarland that he (Bender) was the owner of such property, McFarland had paid of the rents to the Grand Opera House Company a sum in excess of $6,000, and that Murray, through and from the Opera House Company, had received the whole of said sum, and unjustly held the same from complainant; that Murray and the Opera House Company held the rents, issues, and profits in trust for complainant.</p> <p>In the answer to the amended bill Murray admitted the material matters of record set up in the bill, but alleged that certain property in the opera house, consisting of chairs, scenery, lamps, etc., was personal in its character, and belonged to him; alleged that McFarland was the tenant in possession of the opera house, and denied that the chairs and scenery were fixtures or annexed to the realty or necessary to its use, and denied that the Grand Opera House Company ever was the owner of such chairs, scenery, etc.;denied that McFarland procured the lease on the property through him, but admitted that McFarland had paid certain rents under said lease to the Opera House Company, the exact amount being at the time unknown to the defendant; denied that he had received from the Opera House Company the whole of said sums so paid, or that he unjustly or at all held the same from the complainant, or that he knew that the Opera House Company was not entitled to said rents from said property. He then alleged that since 1896 he had been the owner and in possession of the personal property in the opera house, consisting of chairs, scenery, etc., saving and excepting a few certain pieces of scenery; that McFarland never had any possession of such property except as the lessee of Murray; and that McFarland agreed to pay him rent therefor.</p> <p>The decree of the court below, entered on the 4th day of September, 1901, adjudged that the complainant, John O. Bender, was the rightful owner and entitled to have and possess certain premises described in the bill of complaint as the property of the Grand Opera House Company, together with the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining thereto, including the stage fixtures and appliances attached to the stage, the drop curtain attached thereto, and the chairs attached and fastened to the floor by screws and nails, but not including the scenery in the said house, nor the pianos therein, nor the loose and unattached chairs. It was also adjudged that the complainant was entitled to the rents, issues, and profits of the said property from and after the 11th day of March, 1899, the day that Bender was entitled to the sheriff’s deed, to the 1st day of February. 1900, when the receiver took possession of the property, and that the defendant James A. Murray account for and pay over to the complainant the rents, issues, and profits of the said premises, with legal interest thereon from the time the same were withheld, and that said account be referred to the master in chancery, who should take evidence thereon and state said account, and report to the court said evidence and his conclusions thereon. In pursuance of this reference the master in chancery took evidence upon the question of rents, issues, and profits due from the defendant James A. Murray to the complainant, John O. Bender, and thereupon found that the defendant James A. Murray had received, from the 11th day of March, 1899, to the 1st day of February, 1900, $480 for each month of said period of 10 months and 18 days, to wit, the sum of $5,120, and that the complainant, John O. Bender, was entitled to receive from the defendant James A. Murray, under the decree, the said sum of $5,120, and interest, as particularly specified in the findings, from the time therein mentioned to the day of judgment therein. The report of the master and his findings were returned and filed and entered in the office of the clerk of the court on the 9th day of December, 1901, and, no exceptions having been filed thereto by either party within one month thereafter, the report stood confirmed on the next rule day, as provided in equity rule No. 83. Upon this confirmed report of the master, the court entered a further decree on the 20th day of March, 1902, adjudging that the complainant, John O. Bender, have and recover of the defendant James A. Murray the sum of $6,191.80, being the amount found due by the said master in chancery, together with legal interest at the rate of 8 per cent, per annum upon the several amounts and for the several dates set forth in said report, as ascertained and computed to the date of the entry of the decree.</p> <p>From these two decrees the defendant James A. Murray has appealed to this court, assigning as error: First, the action of the court in adjudging that the complainant, J. O. Bender, was the rightful owner and entitled to the possession of the premises described in the complaint as the property of the Grand Opera House Company, including the stage fixtures and appliances attached to the stage, the drop curtain, and the chairs mentioned in the decree, and in not determining that they belonged to the defendant; second, the action of the court in determining and adjudging that the complainant was entitled to the rents, issues, and profits of the property described therein, from and after the 11th day of March, 1899, and until the time when the receiver received the rents, issues, and profits, to wit, the 1st day of February, 1900.</p>

This cause comes here upon an appeal by the Ocean Steamship Company from a final decree of the District Court, Southern District of New York, which held both vessels in fault for a collision between the steam ferryboat Chicago and the steamship City of Augusta.

In Error-to the Circuit Court of the United States for the Middle District of Tennessee.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p> <p>For opinion below, see 122 Fed. 983.</p>

Appeals from the Circuit Court of the United States for the Southern District of Illinois. In 1896 the Continental Wire Company made a trust deed of its manufacturing plant to Boyce, trustee, to secure the payment of 125 bonds, of $1,000 each. The trust deed did not specifically pledge the rents and profits, but it did provide that on default the trustee might take possession.

<p>1, Brokers—Commissions—Performance of Contract—Burden of Proof.</p> <p>Where a broker’s employment contract for the sale of certain land provided that it should be void in case of a failure of the agreement of sale, it was incumbent on the broker, in an action for commissions, to show that the agreement of sale was performed by the purchasers, or by some one who took their place under the agreement.</p>

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

<p>1. Patents—Infringement—Rail-wav Switch Rods.</p> <p>The Calvert patent, No. 651,413, for an adjustable switch rod, construed, and, as limited by the prior art and the amendment of the claims in the patent office, held not infringed by the device shown in the Strom patent, No. 625,961, conceding priority of invention to Calvert.</p>

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

This appeal is from a decree enjoining the Wisconsin Company from infringing letters patent No. 521,174, June 12, 1894, to Enoch Nation, assignor, the property of the American Company.

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

<p>In Bankruptcy.</p>

<p>1. Public Lands—Sale before Issuance of Patent—Bona Fide, Purchasers.</p> <p>Where an entryman of public lands sold the land to defendant’s vendor after the issuance of the entryman’s final certificate, who thereafter sold the land to defendant before the issuance of patents, which were subsequently issued to the original entryman, the fact that defendant purchased before the issuance of the patent did not deprive him of the rights of a bona fide purchaser for value.</p> <p>¶ 1. See Public Lands, vol. 41, Cent. Dig. § 368.</p> <p>2. Same—Vacation of Patent—Fraud—Evidence.</p> <p>A patent for public land will not be set aside on the ground of fraud committed by the patentees, where the proof is only sufficient to raise a suspicion of fraud not amounting to a conviction.</p> <p>8. Same.</p> <p>Facts reviewed, and held insufficient to authorize a decree setting aside a patent for public lands on the ground of fraud alleged to have been committed by the patentees.</p>

<p>1. United States Commissioners—Poavers as Magistrates—Issuance of SubPCENÁS.</p> <p>Under Rev. St. § 1014 [U. S. Comp. St. 1901, p. 716], whieb authorizes United States commissioners to act as examining and committing magistrates^ in criminal cases in any state “agreeably to the usual mode of process against offenders in such state,” a commissioner in New York, sitting as a magistrate, has power to issue subpoenas for witnesses, criminal magistrates of tlie state being given sucb power by statute; but under Code Cr. Proc. N. Y. § 618, which in effect provides that no person shall be obliged to attend as a witness out of the county of his residence upon, a subpoena issued by a magistrate, unless on an order indorsed thereon by a court or judge on a showing made, a commissioner has no power to compel the attendance of a witness by a subpoena issued by him at the instance of a defendant, and served outside of the county where the hearing takes place, unless an order therefor is obtained from a federal court or judge in conformity to the state practice.</p> <p>2. Same—Punishment of Witness foe Contempt.</p> <p>By the weight of federal authority, a United States commissioner is held to be an officer of the court which appointed him, and without power to nnnish for contempt in proceedings before him, such power being in the court.</p>

<p>1. Trade-Mark—"Club” Cocktails—Propriety of Designation.</p> <p>The word “Club,” as applied to a brand of cocktails, is not a term of description, but an application of a common word to a commercial article in an arbitrary or fanciful sense to indicate origin or ownership, and is consequently appropriate as a trade-mark.</p> <p>¶ 1. Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p> <p>2, Same—Prior Appropriation—Sufficiency of Evidence.</p> <p>In 1892 complainants adopted, and have since used, the term ‘‘Club Cocktails” as a distinguishing trade-name for their bottled cocktails. About 1892, and perhaps earlier, a limited quantity of bottled cocktails was put on the market under the name of “Outing Club Cocktails,” but these goods made little or no impression on the trade, and the use of the name was in the nature of an experiment, and was transitory and inconsiderable. In 1898 the manufacturer of the “Outing Club Cocktails” caused to be inserted in Mida’s Kegister a label on which those words appeared, with the statement, “Used since 1894.” Held, that the evidence did not establish any commercial use of the word “Club,” as applied to cocktails, sufficient to show an appropriation thereof as a trade-name prior to complainants’ adoption thereof.</p> <p>3. Same—Unfair Competition.</p> <p>In 1892 complainants began the use of the phrase “Club Cocktails” as the distinguishing trade-mark for their goods. Several years later the defendants began selling bottled cocktails under the name “Boston Cocktails,” and in 1900 adding the word “Club,” calling their product since that time “Boston Club Cocktails.” Complainants built up an extensive trade in “Club Cocktails,” both in this country and abroad, and their goods received a universal trade recognition, and completely occupied the market. Defendants’ reason for incorporating the word “Club” in the name of their product was that they heard some other dealer was using their original designation. On two occasions defendants filled orders for “Club Cocktails” by furnishing their own goods. There is no similarity between the label and the size and color of the bottles used by the respective parties. HeW, that the defendants’ adoption of the word “Club” constituted unfair competition entitling complainants to an injunction.</p> <p>¶ 3. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

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

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

<p>1. Removal of Causes—Diverse Citizenship—Defendants of Different Citizenship—Separable Controversy—Determination.</p> <p>Where a defendant who is a citizen of the same state as plaintiff is joined with a defendant of different citizenship, and such defendant claims the right to remove the cause to the federal court on the ground that the causes of action against the defendants are separable, such question is to be determined by an examination of the complaint alone.</p> <p>¶ 1. Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.</p> <p>See Removal of Causes, vol. 42, Cent. Dig. § 115.</p> <p>2. Same.</p> <p>Defendant J. received under the will of her husband certain real estate and personal property for life, remainder to plaintiffs. Defendant J. insured the property with defendant insurance company for $2,875, the policy providing that in case of loss the insurer should be bound for three-fourths of the actual cash value of the property. After loss' a settlement was made between defendant J. and insurer, fixing the loss at $1,500. Thereafter plaintiffs, who were remaindermen, brought suit against J. and the insurance company, claiming, as against the insurance company, to recover the entire face value of the policy, and, as against J., that the insurance covered the interest of the remaindermen, and that J. was a trustee of the fund to hold for herself for life, remainder to plaintiffs. Plaintiffs and J. were citizens of the same state, but defendant insurance company was not. Held, that the controversies between plaintiffs and each defendant were different and separable, and that the insurance company was therefore entitled to remove the cause to the federal court.</p> <p>8. Same—Petition for Removal—Verification.</p> <p>In the absence of an express requirement of Act Cong. Aug. 13, 1888, c. 866, § 3, 25 Stat. 433 [U. S. Comp. St. 1901, p. 510], providing for removal of causes, where a cause is sought to be removed on the ground of the separable controversies between plaintiffs and defendants, only one of whom is entitled to remove for diverse citizenship, the petition for removal need not be verified.</p>

<p>1. Aliens—Chinese—Exclusion—Nature op Proceeding—Bail.</p> <p>A proceeding for the deportation of a Chinese alien under the exclusion acts is not criminal in its nature so as to entitle such alien to bail, as a person accused of crime, pending appeal from a commissioner’s order of deportation.</p> <p>¶ 1. Citizenship of the Chinese, see notes to Gee Ford Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.</p> <p>2. Same.</p> <p>A proceeding under the exclusion acts for the deportation of a Chinese alien, though- civil in its nature, is sui generis, and the District Judge to whom an appeal is taken from a commissioner’s order directing deportation has inherent power to admit the alien to bail pending the appeal.</p> <p>3. Same.</p> <p>Chinese Exclusion Act Nov. 3, 1893, c. 14, § 2, 28 Stat. 8 [U. S. Comp. St. 1901, p. 1322], providing that an order of deportation shall be executed by the United States marshal of the district within which such order is made, and pending execution the Chinese person shall remain in the custody of the marshal and shall not be admitted to bail, applies only where the order of deportation is final, and does not prevent the admission of a Chinese alien, ordered to be deported, to bail pending an appeal from such order.</p> <p>¶ 3. See Aliens, vol. 2, Cent. Dig. § 94.</p>

<p>This cause comes here upon a motion for a preliminary injunction to restrain the production on the stage of the Metropolitan Opera House, New York City, of the opera of Parsifal.</p>

On application by the importers to review a decision (G. A. 1,271) of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of Detroit on importations made November 25 and December 7, 1891, and January 2 and S, 1892.

<p>1. Reference —Findings of Special Master—Revision by Court.</p> <p>A special master to whom is referred a question of damages in an action at law is appointed in aid of the court, which is not bound by his findings, although no exceptions are filed thereto.</p> <p>2. Same—Costs—Introduction of Irrelevant Testimony.</p> <p>The cost of taking testimony before a referee or special master, which is irrelevant to the matter referred to him, will be taxed to the party introducing the same.</p>

<p>1. Contracts—Sale of Cotton for Future Delivery—Legality under South Carolina Statute.</p> <p>Code S. C. 1902, §§ 2310, 2311, which provide that contracts for the sale of cotton for future delivery shall be void unless at the time it was the bona fide intention of both parties that the cotton so sold should be actually delivered and received, and that in any action to collect a claim based on such a contract the burden shall rest on the plaintiff to prove such intention, cannot be invoked by a defendant to defeat an action by brokers to recover money advanced as margins at his request to protect contracts for the purchase of cotton made for him by plaintiffs on the New York Cotton Exchange, by the rules of which it is expressly provided that the parties to such contracts shall be bound to deliver and receive the cotton sold, even though he testifies that he did not intend to receive the cotton bought, but merely to gamble on the market price, where it is shown that in each case he was notified that the purchase was made in conformity with such rules, and made no objection thereto, and did not disclose his real intention to plaintiffs.</p>

Application by the importers, S. M. Lawder & Sons, for review of the decision of the Board of General Appraisers, which affirmed the assessment of duty on certain merchandise imported at the port of Baltimore. In assessing duty, the collector considered the case one of undervaluation, UDder section 7 of the customs administrative act of June 10, 1890, c. 407, 26 Stat. 134, as amended by section 32 of the tariff act of July 24, 1897, c. 11, 30 Stat. 211 [U. S. Comp.

<p>1. Injunction—Against Action at Law.</p> <p>A suit having been commenced, to cancel complainant’s subscription to stock of a corporation and to require repayment of a sum paid tbereon, an action at law, in another federal court, on the subscription, commenced after the suit in equity, and in which the full and adequate remedy of an equity court cannot be afforded, will be enjoined, notwithstanding pendency of a third suit in a state court to wind up the affairs of the corporation.</p>

<p>Habeas Corpus Proceeding. On motion to admit to bail.</p>

<p>Writ of Habeas Corpus to Discharge from Custody of Immigration Officers.</p>

<p>1. Personal Property Tax—Suit to Enjoin—Propriety.</p> <p>Both under Rev. St. § 3224 [U. S. Comp. St. 1901, p. 2088], providing that no suit to restrain the assessment or collection of any tax shall be maintained in any federal court, and on general principles of equity, an injunction suit cannot be maintained to restrain the collection by town authorities of a personal property tax; there being an adequate remedy at law to be had, by paying the tax and bringing an action to recover it, and it being contrary to public policy to tie up the collection of taxes.</p> <p>2. Same—Allegations op Fraud.</p> <p>The allegation in a bill to restrain town authorities from collecting a. personal property tax that the town’s board of review, including its assessor, “wrongfully, fraudulently, and unlawfully confederated, connived, and colluded to Injure plaintiff by placing on said assessment roll” the property in question, is insufficient to lay a foundation for equity jurisdiction.</p> <p>8. Same—Effect of' Fraud.</p> <p>Fraud in levying a personal property tax will not confer jurisdiction in equity to enjoin the tax, where the legal remedy remains adequate.</p>

<p>1. Trusts—Construction.</p> <p>Where an instrument creating a trust provided that, whenever a majority in interest of the .beneficiaries should vote to transfer the property to a corporation, the trustee should convey the same, discharged of the trust, and that the proceeds of such sale, after payment of liabilities of the associated beneficiaries, should be dividéd among the beneficiaries, and on such division, sale, and transfer, if no further property remained in the trustee, the association should be dissolved, such provision contemplated a sale by the trustee only for cash.</p> <p>2. Same—Action against Trustee—Pleading.</p> <p>Where a trust authorized the trustee to sell the property for cash only, a bill alleging that he threatened to transfer, or had already transferred, the property to a corporation for no consideration except the shares of such corporation, was not demurrable.</p> <p>8. Same—Multifariousness.</p> <p>Where a trustee acted for the beneficiaries in the administration of a trust and as manager of the business of an association operating the trust property, a bill against such trustee alleging breaches of trust both in his capacity as trustee and as manager was not multifarious.</p> <p>A Same—Joinder of Actions.</p> <p>Where a bill was brought against a trustee for alleged breach of trust, for an accounting, and to restrain a transfer of the trust property, an action against members of an executive committee, appointed to manage such trust property for an association of beneficiaries, charging conspiracy with the trustee to effect the alleged transfer, was not germane to the cause alleged in the bill, and could not be joined therewith.</p>

<p>In Equity. ( Motion to dismiss for lack of jurisdiction.</p>

At Law. Upon demurrers to two pleas in abatement; one attacking the jurisdiction of the court, and the other seeking dismissal of the suit because filed by a nonresident without furnishing bonds for costs.

<p>1. Stock Subscriptions—Variance by Parob.</p> <p>Defendants in an action on their written stock subscription which In 'no way intimates that they subscribed as agents or other than as principals may not show an oral agreement with the president of the corporation that their subscription was for others.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. § 1760.</p> <p>2. Same—Directing Issuance in Name oe Another.</p> <p>Defendants are no.t released from liability for an assessment on stock under their stock subscription by their direction in the subscription, and compliance therewith, that the stock be issued in the name of another, who did not own any of the shares, though the subscription provided that only the holders of shares of record on the books at the time of assessments should be liable therefor; this applying only to bona fide changes of ownership.</p>

<p>1. New Trial—Submission to Jury—Waiver of Objection.</p> <p>Tbe question of contributory negligence having been submitted to the jury in precise accordance with defendant’s request, it cannot, as ground for new trial, claim that the evidence thereon called for binding instructions for it.</p>

<p>1. Unlawful Competition—Goods—Similarity of Labels.</p> <p>Plaintiff manufactured and sold soap put up in single-cake packages, marked, “Old Mill Soap,” with a picture of an old mill, and, underneath, “Made by Swift & Co., Chicago,” and on each side was printed the same words. Defendant, under the name Crown Manufacturing Company, put up soap in similar packages, on the top of which was printed, “Old Stone Mill Soap,” with a picture of an old mill, and, under it, “Made by Crown Mfg. Co.,” with the same words on each side. -The situation of the letters and the type of the names were similar in each case, and the appearance of the package was well calculated to deceive the public. Eeld, that defendant’s act constituted unfair competition.</p> <p>¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1, Master and Servant—Personal Injuries—Negligence of Fellow Servant-New York Statute.</p> <p>New York Laws 1902, p. 1748, c. 600, giving an action to an employé tbe same as if be bad not been employed, in cases wliere he is injured by defects in the ways, works, or machinery due to the negligence of the employer or one intrusted by him with supervision, or by reason of the negligence of a superintendent, does not confer a right to recovery for the negligence of an ordinary fellow servant in failing to warn the plaintiff of the lowering of a “scale,” by which he was injured.</p> <p>2. Same—Common-Law Doctrine.</p> <p>A servant cannot recover at common law for an injury inflicted by the negligence of a fellow servant.</p> <p>¶ 2. See Master and Servant, vol. 34, Cent. Dig. § 352.</p> <p>3. Same—General Allegation—Effect.</p> <p>The allegation in a servant’s complaint for injuries that they were caused “without fault, neglect, or want of due care on his part, but solely and only through the fault and neglect of the defendant, his agents, servants, and employes,” is too general to amount to an allegation of an act of negligence.</p>

<p>1. Bills and Notes—Transfer—Bona Fide Purchaser—Payment—Answer..</p> <p>In an action on certain notes, an answer alleging that the notes were not to be paid except from the profits of the theatrical venture of which plaintiff and his predecessors in title had notice, and that there were no profits accruing from such venture, stated a good defense to the notes.</p> <p>¶1. See Bills and Notes, vol. 7, Cent. Dig. § 1372.</p> <p>2. Same—Demurrer.</p> <p>Where an answer in a suit on certain notes alleged that the notes were to be payable only out of the profits of a venture, and that no profits had accrued, an objection that such agreement was verbal, and could not be proved to defeat the notes, could not be considered on demurrer to the answer.</p>

<p>1. Unlawful Competition—Patented Articles—Manufacture—Form of Article.</p> <p>Where a patented article was manufactured by both plaintiff and defendants, and the similarity in the article made by defendants was only such as was necessary in the making and operation of such article, and, though the form of the boxes in which the instruments of both parties were packed was similar, the circulars and labels used on defendant’s boxes distinguished the origin of their instruments, and were not similar to plaintiff’s labels, except as to the picture of the instrument, defendants were not guilty of any misrepresentation tending to lead the public to believe that their instruments were manufactured by plaintiff, and were therefore not guilty of unfair competition.</p> <p>¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1. Accounting!—Equity Jurisdiction—Adequate Remedy at Law.</p> <p>A suit in equity for an accounting, not growing out of a trust relation, cannot be maintained unless tbe bill discloses such a complexity in the account as to render the remedy at law unduly burdensome and embarrassing.</p>

<p>Petition for the review of an order made by a referee in bank-ruptcy adjudging the title of certain personal property claimed by the Columbus Buggy Company to be in the trustee of the bankrupt.</p>

<p>Application to have an alleged copartnership adjudicated' a bankrupt, notwithstanding the interposition by several of the alleged members of the firm of answers alleging their infancy and denying that they are members of the firm or copartnership.</p>

<p>1. Mortgages—Debt Secured—Implied Agreement.</p> <p>Where a mortgage executed by a bankrupt secured a part of the indebtedness evidenced by certain notes only, and not an open account, an agreement that the account should also be secured by the mortgage could not be implied in favor of subsequent creditors of the bankrupt.</p> <p>2. Bankruptcy—Secured Claims—Application of Payment.</p> <p>Where a bankrupt was indebted to a creditor on three notes secured by a mortgage and on an open account which was unsecured, and made payments without any instructions as to their application, the creditor was entitled to apply the payments on the unsecured indebtedness.</p>

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

<p>In Bankruptcy.</p>

<p>At Chambers. On application for writ of habeas corpus.</p>

<p>1. Trust—Agreement Creating Construed—Rights of Parties Determined.</p> <p>Complainant was the holder of certain stock of a corporation as collateral security for notes' of a lumber company. At the instance of such company, and for its benefit, she transferred the stock to defendant bank to carry out an agreement of the company to give defendant a majority of the stock for voting purposes for the term of five years, the company covenanting with complainant to pay any assessments against the stock. Defendant executed to complainant a receipt reciting that the stock was not delivered as security for any debt, but in compliance with the agreement of the company, and was to be held for voting purposes only, complainant to receive any dividends paid thereon. It further provided that the stock might be reissued in any other name at the option of defendant, which should return an equal number of shares at the end of five years; that complainant should pay any assessments on the stock, but if not so paid, and paid by defendant, it should recoup itself with interest out of subsequent dividends, holding the stock in the meantime as collateral security. Defendant caused •the stock to be reissued in the name of an employé, as it also did other stock which it held in pledge from the lumber company. An assessment was subsequently made on the stock, which the lumber company paid on the amount of stock it had in pledge with money lent it by defendant and charged to its account. The assessment was not paid on any other stock, and it was all sold for the nonpayment and bought in by the corporation which issued it. Defendant did not notify complainant of the assessment, nor that her stock had been reissued, and she had no knowledge of such facts. Defendant, having bought the interest of the lumber company in the pledged stock at execution sale, caused a certificate to be issued for the exact number of shares received from complainant, which it tendered to her at the expiration of the five years, conditional on her paying it the amount of the assessments paid thereon, which she refused to do, and thereupon she brought suit to recover the stock. Seld, that the agreement under which the stock was delivered created a trust which bound defendant as trustee to return the stock unconditionally at the stipulated time, unless after notice to complainant of the assessment, and her failure to pay the same, it exercised its option to pay it and to look to future dividends for repayment; that having caused the identity of her stock to be lost and failed to notify her of any assessment thereon, or to pay the same itself it could not charge her with the amount of assessments which had been paid on the substituted stock by her pledgor.</p>

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

<p>Appeals from the District Court of the United States for the Northern District of California.</p> <p>The several libels herein set forth, arising out of one event, namely, a collision between the Norwegian steamship Tellus and the British_ steamship Belgian King, were consolidated, by order of the court below, and tried upon one hearing. Several decrees were entered by the District Court, and, by. stipulation of the respective parties, appeals from the several decrees were presented to this court upon one record.</p> <p>It is alleged, in the amended libel of G. B. Hunter and the Wallsend Slipway Company for salvage services rendered to the steamship Tellus, that they are the sole owners of the British ship Belgian King, a vessel of about 2,170 tons register, and at the time mentioned of the value of about £25,000 sterling; that on the 17th day of July, 1900, the Belgian King, then being in ballast, left the port of San Francisco, bound to the port of Seattle, in the state of Washington; that between 10 and 11 o’clock p. m. of that day, when about 25 miles to the southward and westward of Point Arena, on the coast of California, and 7 miles distant from land, dense fog then prevailing, a collision took place between said Tellus and the ship Belgian King, the former being laden with a full cargo of coal, and bound from Comox, in British Columbia, to the port of San Francisco; that the collision occurred without any negligence on the part of the officers and crew of the Belgian King; that both ships sustained damage by reason of said collision, the Tellus having a large hole made in her port bow between her collision bulkhead and bulkhead No. 1, through which the water, in large quantities entered, and, fearing that the ship would sink almost immediately, of which there was great danger, her entire company went on board the Belgian King; that the Belgian King remained by the Tellus until the following day; that on the morning of that day, the Tellus being still afloat, but having a great deal of water in her, and still leaking, and in danger of sinking, the master of the Tellus requested the master of the Belgian King to take the Tellus in tow for the purpose of assisting her to the port of San Francisco as speedily as possible; that thereupon the Belgian King made fast to the Tellus with 120 fathoms of a 4-ineh steel hawser, and towed her until she arrived at a point about three miles distant from the entrance to the Bay of San Francisco, when the hawser parted; that, the sea being then smooth, the master of the Tellus did not deem it necessary for the Belgian King to again make fast to her, and started the Tellus ahead under her own steam; that the Belgian King accompanied her in order to render any assistance needed, and so continued until about 8 o’clock p. m. of said 18th day of July, when the vessels arrived at an anchorage in the said harbor, at a point six or seven miles from where said hawser parted. It is alleged that the Tellus was and is in her damaged condition of a value of £18,000 sterling, or thereabouts, and the value of her cargo of coal not less than $21,000; that the said ship was so seriously injured and damaged as to render her liable to sink at any moment, and, together with her cargo, become a total loss before she could, by her own unaided efforts, reach a place of safety, and that it would have been extremely dangerous to the lives of her officers and crew to remain on board of her, for the purpose of attempting to navigate her to a place of safety, without the immediate presence and aid of the Belgian King; that by reason of the premises the libelants are entitled to recover against the said Tellus and her cargo a reasonable salvage reward for the services alleged to have been rendered.</p> <p>The owners of the Belgian King also libel the steamship Tellus, her tackle, apparel, and furniture, for the amount of damages sustained by the Belgian King in said collision, in the sum of $14,000. It is alleged in the libel that “at about 45 minutes past 10 o’clock on the night of said 17th day of July, a long blast of a steamer’s whistle, which afterwards proved to be that of the steamship Tellus, was heard, apparently about three points off the starboard bow of the ship Belgian. King, whereupon the engines of said Belgian King were immediately put to slow, and she proceeded ahead at a rate of about three knots an hour, which was as low a rate of speed as was consistent with good steerageway, which speed was maintained until her engines were reversed as hereinafter mentioned. In a few minutes thereafter, two blasts in quick succession of the whistle of the approaching vessel were heard, which were interpreted by those "on board of the Belgian King to mean: T am directing my course to port.’ Then the helm of the Belgian King was immediately put to starboard, and two blasts of her whistle were sounded, indicating: T am directing my course to port.’ In a short time after, the approaching vessel again gave two blasts of her whistle, which appearing to be close by, the engines of the Belgian King were stopped and reversed full speed, and three blasts of her whistle, indicating, ‘Jly engines are going at full speed astern,’ were sounded. Shortly after, the masthead light of thé approaching vessel was sighted about two points off the starboard bow of the Belgian King, and then her red light came in view, and then, in a time so short thereafter as to render it impossible for those navigating the Belgian King to adopt any measures to avoid it, a collision took place between the two vessels, the Belgian King coming in contact with the port bow of the Tellus, which was then being navigated across the bow and course of the Belgian King, in consequence of which the Belgian King was extensively damaged, that is to say: Eighteen plates on her bows broken, bent or cracked; eight frames broken; breast hooks bent; stringers broken; collision bulkhead bent, and the bulkhead frame crushed and broken; some of the plates were cracked below the water line so that the forward compartment filled with water; and doing other and extensive damage.”</p> <p>■ The California & Oriental Steamship Company also libel the steamship Tellus, her tackle, apparel, and furniture, for the amount of damages sustained by it, as charterer of the Belgian King, in the loss of contracts and delay of the ship for repairs after said collision, in the sum of $18,694. The navigation of the Belgian King is described in the same terms as those employed in the libel filed by the owners of the Belgian King.</p> <p>In answer to each of these libels the Tellus Steamship Company admits that the collision occurred, that the Tellus was damaged thereby, and that it was towed by the Belgian King to San Francisco. It denies that the Tellus was in a sinking condition at any time, but avers that as water was coming into the ship, and it being nighttime and foggy, they were not satisfied that it was safe to remain on board; but that in the morning, when the true condition of the ship could be ascertained, they found the ship in no danger, and returned to her. It is denied that the Tellus was in serious danger at any time, except in the event that she should meet with heavy weather. It is denied that the Tellus was navigated in violation of the rules of navigation, or otherwise than with the greatest care and skill, and avers that the officers of the Belgian King were solely to blame for the collision, by reason of the high speed which was maintained almost to the moment of collision, and by reason of their lack of knowledge of the meaning, of signals or their correctness in interpreting them. It is prayed that the various libels against the Tellus be dismissed.</p> <p>At about the time of the filing of the libels against the Tellus, the Tellus Steamship Company filed a libel against the Belgian King, her tackle, apparel, and furniture, for the amount of damages sustained by the Tellus by reason of said collision, and for the loss resulting from the deprivation of the use of the vessel while being repaired, in the total sum of $45,000. The libel describes the movements of the Tellus on the night of the collision, as follows: “At half past 10, the fog having then settled down, the master ordered that the engines be run at slow speed, the said vessel then making about three knots an hour. About this time a long blast from a steam whistle was heard about ahead of the Tellus, and at some distance away, which whistle was immediately answered by a long blast from the Tellus. A similar long blast was again heard and again answered, and like signals were kept up, all at an interval of about two minutes between blasts, and all indicating an approaching steamship. That as soon as the master of the Tellus discovered from the said whistles that the said approaching steamship was still ahead of the Tellus, and that she could not be far away, he ordered the helm to port, and gave a short blast on the steam whistle to indicate to the approaching ship the fact that the Tellus was being directed to the starboard. That the approaching steamer again gave a long blast, which as before was answered, and was, after about 30 seconds, followed by a short blast from the Tellus indicating a continued turning by her towards the starboard. That thereupon the engines of the Tellus were stopped, and so continued until the approaching steamer, which afterwards proved to be the steamship Belgian King, of about 2,000 tons, bound from San Francisco to Seattle, gave two short blasts, and immediately three longer blasts. Immediately the engines of the Tellus were reversed at full speed, so that said vessel’s way was actually stopped. In a short time the lights of the Belgian King came into view, said vessel bearing about one and one-half points on the bow of the Tellus, and in about one-half of a minute the Belgian King struck the Tellus on the port bow, cutting deeply into the same down to and below the water line, and breaking her frames, beams, plating, and decks from the afterpart of the collision bulkhead to the corner of No. 1 hatch, a distance of about 10 feet, and otherwise seriously injuring her. * * * That for a long time prior to the collision aforesaid, and up to the occurrence of the same, the master and officers of the said Belgian King, notwithstanding the fact that a thick fog was prevailing, and that the said steamship was all of the time in said fog, and that it was impossible to see more than a very short distance ahead, were proceeding at a high rate of speed, and, notwithstanding that •they knew from the signal blasts that were blown by the Tellus that another vessel was in close proximity to her, and that there was risk of collision unless due precaution should be had on her part, they failed to stop the engines of said ship until they could ascertain the location of the Tellus, by reason whereof, although the Tellus had been and was stopped, the said Belgian King came into collision with said Tellus; all of which acts on the part of the said master and crew of the Belgian King were negligently done, and with lack of proper care and skill in navigation.”</p> <p>The District Court held that the collision must be attributed to the fault of the Belgian King in not stopping when she became aware that she was in close proximity to the Tellus, instead of moving ahead at a low rate of speed. The libels against the Tellus were therefore dismissed, and a decree entered for the Tellus Steamship Company in its cross-libel against the Belgian King in the sum of $32,622.14. From these decrees appeals have been taken to this court.</p>

This is a proceeding which was begun by E. B. Crissey, the plaintiff in error, against E. N. Morrill and Alexander Caldwell, the defendants in error, who were stockholders of the Interstate Loan & Trust Company, to enforce a liability imposed upon them as stockholders under and by virtue of the laws of the state of Kansas, where the Trust Company was incorporated and had its domicile.

On May 23, 1901, Thomas Lee Humphreys made a written contract with E. A. Long, the plaintiff below, to construct and complete a brick building for him by September 1, 1901, for the sum of $6,600.

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>This is a writ of error sued out by the plaintiff in error (defendant below) to reverse a judgment in favor of the defendant in error for personal injuries sustained by him by reason of a collision occurring on the line of railway of the plaintiff in error at East Buffalo, in the state of New York. The plaintiff below was a porter in a sleeper, and in the service of the Pullman Company. The collision occurred by reason of an open switch, a freight or switch engine leaving the track and plunging into the sleeper in which the plaintiff below was riding.</p> <p>To the declaration the defendant below filed a plea of the general issue, with two special pleas, setting forth the contract between the defendant in error and the Pullman Company, dated July 21, 1900, being the date upon which Difendaffer entered into the service of that company. This contract is entitled, “Contract of Employment,” and, so far as is material to the case in hand, is as follows:</p> <p>“Be It Known, That I the undersigned hereby accept employment by and enter into the service of The Pullman Company upon the following express terms, conditions and agreements, •which in consideration of such employment and the wages thereof, I do hereby make with said The’ Pullman Company, to-wit:</p> <p>* * * * ' * * * * * •</p> <p>“Fourth: I assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge. The Pullman Company and its officers and employés, from any and all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me in such employment or service.</p> <p>“Fifth: I am aware that said The Pullman Company secures the operation of its cars upon lines of railroad, and hence my opportunity for employment, by means of contracts wherein said The Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employés of said The Pullman Company in cases provided for in such contracts, and I do hereby ratify all such contracts made or to be made by said The Pullman Company and do-agree to protect, indemnify and hold harmless said The Pullman Company with respect to any and all sums of money it may be compelled to pay or liability it may be subject to under any such contract, in consequence of any injury or death happening to me, and this agreement may be assigned to any such corporation or person and used in its defense.</p> <p>**********</p> <p>“I have read and understand every word of this paper.</p> <p>“Joshua Difendaffer. [Seal.]</p> <p>“Signed, sealed and delivered in the presence of</p> <p>“E. H. Schalí.”</p> <p>To the special pleas the plaintiff below replied “that, at the time of the execution of the said contract mentioned in said second plea, the said Pullman Company, through its agents and servants, with intent to deceive and deprive the plaintiff of his legal rights, falsely and fraudulently represented to him (the plaintiff) that said contract was a document or paper relating simply to the routine business connected with the plaintiff’s duties as porter in the employ of the said Pullman Company, and was a paper of no significance other than the mere registration and facts connected with the trip as porter about to be made by the plaintiff for the Pullman Company, and that said contract did not in any way tend to deprive the plaintiff of his rights to recover in case he suffered injury through the negligence of the said Pullman Company, or of any one or more of the various railroad lines over which its. sleeping cars were run; and that thereupon, being deceived and misled by the statements, and representations of the said Pullman Company’s agents and servants, this plaintiff then and there signed his name to the said contract or document, and that at the time the same was not read by the plaintiff, and was not read by any one to the plaintiff, and this plaintiff had no-idea that the provisions of the said document were of the nature now claimed to be by the defendant, until after he had suffered the injuries set forth in his declaration and had brought suit to recover therefor, and that no consideration moved from the said Pullman Company or from the New York Central & Hudson River Railroad Company, or from any one for either, to this plaintiff, and that said signature of the plaintiff to the said document yras obtained through fraud and misrepresentations. And this the plaintiff is ready to verify.”</p> <p>There was rejoinder to the replication, denying the allegations of the replication. At the trial the facts of the collision and the resulting injury were not seriously disputed, the case turning upon the contract introduced in evidence by the defendant below. There were but two witnesses testifying upon the subject—the plaintiff in his own behalf, and Schall, the subscribing witness. The plaintiff testified, with respect to the contract, that the signature thereto was his, but he did not know when he signed it, whether it was on the day he went to work for the company or after that, or whether it was before he went to work for the company. He also said he never signed any paper before he went to work; that he signed papers every trip in and every trip out, and signed whatever was put before him to be signed. At another stage of his testimony he said that he handed in his application for employment, and the president of the Pullman Company said to him, “ ‘Go to work.’ * * • * I do not know how long after that it was when I signed this. It was just the first thing”; that the paper was not read to him, nor was he told what it was. Mr. Schall, the chief clerk in the district office of the Pullman Company, testified that he remembered signing the paper as a witness; that the paper was given the plaintiff below right after he had filled out his application for employment; that the witness asked Difendaffer to read it carefully, and if he did not understand any parts of it to come back and it would be explained to him, and asked him to sign the document in the presence of the witness; that Difendaffer took the paper, went into the outer office, and remained about half an hour; that he does not know whether Difendaffer read the paper or not. He returned, and the witness asked Difendaffer if he understood the paper. He said that he did, and he then signed his name, and Schall signed it in his presence as a witness, and thereupon he went into the service of the company.</p> <p>At the conclusion of the evidence, the defendant below requested of the court a peremptory charge to the jury to return a verdict for the defendant, which motion was denied, and to which due exception was taken.</p>

Ini Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio. This was an action brought by the administrator of John J. Korn, deceased, to recover damages for the death of Korn through the negligence and wrongful act of the defendant railway company.

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>The facts are stated in the opinion of the court.</p>

The suit in the Circuit Court was brought by the appellee, widow of Andrew Saxlehner, deceased, and successor to his business, a resident of the city of Budapest, and a subject of the Kingdom of Hungary, against the appellant, a citizen of the state of Illinois, resident of Chicago, to enjoin appellant from using the word “Hunyadi” as a name for waters manufactured and sold by appellant, and from using a style of bottle, capsule, and label similar to that used by appellee…

<p>1. Bankruptcy—Orders—Mode of Review.</p> <p>An order made by a court of bankruptcy, on petition of a creditor, directing the sale of property which had previously been set apart to the bankrupt as a homestead, is not one from which an appeal is expressly authorized by section 25 of the bankruptcy act, but is one made in the course of a bankruptcy proceeding, and revlewable on petition to revise under section 24.</p> <p>¶ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>2. Same—Jurisdiction of Bankruptcy Court.</p> <p>The homestead of a bankrupt, exempt from his general debts under the laws of the state, does not pass to his trustee, and the court of bankruptcy is without power to order its sale because a particular creditor may have the right, under such laws, to subject it to the payment of his debt.</p>

<p>1. Appeal—Review op Instructions—Sufficiency of Exceptions.</p> <p>An exception taken in gross to the refusal of numerous instructions asked will not be noticed on appeal if some of the instructions refused were erroneous or superfluous.</p> <p>8. Sales—Construction of Contract.</p> <p>Defendant contracted to furnish plaintiffs, who were dealers In oil, with their entire requirements for new barrels for a certain year, at specified prices. Plaintiffs were accustomed to purchase barrels from their customers after they were emptied, and use them again. Held, that such contract did not require them to purchase secondhand barrels instead of ordering new ones, when they were compelled to pay more than the contract price therefor, but that they were entitled to call on defendant for such number of new barrels as they required in conducting their business in the ordinary and businesslike way.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from an order of the United States Circuit Court for the Southern District of New York granting an interlocutory injunction in a suit for infringement of complainant’s patents Nos. 680,415 and 680,458, granted August 13, 1901, to O. H. Kingsland.</p> <p>For opinion below see 117 Fed. 621.</p>

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

<p>Appeal from the Circuit Court of the United States for the Western District of New York.</p> <p>Appeal from a decree dismissing bill filed by tfie complainant for the infringement of two letters patent granted to C. S. Bradley, the patent in controversy on this appeal being No. 468,148. The opinion of the Circuit Court will be found in 111 Fed. 742.</p>

<p>1. Appeal—Appealable Orders—Continuance op Interlocutory Injunction.</p> <p>Under section 7 of the act creating the Circuit Courts of Appeals, as amended by Act June 6, 1900 (chapter 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 550]), which provides for an appeal from any interlocutory order or decree granting “or continuing” an injunction, an order made on an application for reargument of a motion for an injunction and a motion to vacate, overruling both said motions and continuing the injunction previously granted, is appealable, although the original injunction was not formally vacated, but merely suspended pending the disposition of such motions.</p> <p>¶ 1. Review of interlocutory decree granting or continuing injunction in Circuit Court of Appeals in patent cases, see notes to Fisher v. Browne, 3 C. C. A. 572; Southern Pac. Co. v. Earl, 27 C. C. A. 189; New York, N. H. & H. R. Co. v. Sayles, 32 C. C. A. 484.</p> <p>2. Patents—Suit por Infringement—Preliminary Injunction.</p> <p>Where the defense of license is set up in a suit for infringement of a patent, and the evidence offered on the hearing of a motion for a preliminary injunction is of such contradictory character that the validity of such license cannot be determined therefrom, an injunction should not be granted until final hearing. •’</p> <p>¶ 2. See Patents, vol. 38, Cent. Dig. § 489.</p>

<p>1. Patents—Validity and Infringement—Hose Supporters.</p> <p>Tbe Gorton patent, No. 552,470, for a hose supporter, field not anticipated, entitled to a broad construction, and infringed, on review of an order granting a preliminary injunction, and on a consideration of certain alleged anticipatory patents not before the court in prior suits.</p>

For opinion below see 113 Fed. 599. This cause comes before this court upon appeal from a decree of the United States Circuit Court for the Southern District of New York dismissing bill for infringement of patent No. 555,033, granted February 18, 1896, to complainant, as assignee of Thomas C. Beaumont, for a hot water bath fixture.

This cause is brought here by appeal from a decree of the United States Circuit Court for the Northern District of New York dismissing bill for infringement of complainant’s patent No. 473,087, granted to Edmund Schade April 19, 1892, for a plane iron. For opinion, below see 115 Fed. 813.

<p>1. Naturalization—Perjury in State Court—Jurisdiction of Federal Court—Status of State Tribunal.</p> <p>Under Const, art. 3, § 1, providing that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may ordain and establish, and that the judges shall hold office during good behavior, and shall receive a compensation which shall not be diminished during their continuance in office, state courts acting in the naturalization of aliens pursuant to the authority given by Congress remain state tribunals, and do not become in any degree courts of the United States; and hence a perjury committed in such proceedings is an offense against the state, and not the federal sovereignty, and, in the absence of statute conferring jurisdiction on the federal courts, is exclusively a matter of state cognizance.</p> <p>2, Same—Statute Giving Federal Courts Jurisdiction,</p> <p>Act July 14, 1870, c. 254, 16 Stat. 254 [U. S. Comp. St. 1901, p. 3654], entitled “An act to amend the naturalization laws and to punish crimes against the same,” etc., provides (section 1) that “in all cases where any oath or affidavit is made or taken under or by virtue of the law relating to the naturalization of aliens or in any proceedings under such laws” any person who knowingly swears falsely shall be punished, etc. Section 4 made the provisions of the act applicable to all naturalization proceedings before any court, and provided that “the courts of the United States shall have jurisdiction of all offenses under the provisions of this act in or before whatsoever court or tribunal the same shall have been committed.” When incorporated into the Revised Statutes of 1875, section 1 of this act became section 5395 [U. S. Comp. St. 1901, p. 3654], being placed in the chapter entitled “Crimes against Justice,” while the other sections were distributed elsewhere. Section 4 became section 5429 [U. S. Comp. St, 1901, p. 3670], and, with the portion of this section above quoted omitted, was made applicable only to sections immediately preceding, thus excluding section 5395. Held that, notwithstanding the changes on revision,- section 5395 still conferred on the federal courts jurisdiction of a perjury committed in naturalization proceedings in a state court, in the procedure prescribed by Congress.</p> <p>8. Same—Requirement of State Statute.</p> <p>Laws N. Y. 1895, c. 927, p. 742, provides, in addition to the procedure prescribed by Congress in the naturalization of aliens, that an application in the form of a petition, accompanied by an affidavit of some citizen who may or may not afterwards be a witness, shall be filed 14 days before final action, etc. Held, that perjury in the making of this affidavit was not punishable in the federal courts under Rev. St. § 5395 [U. S. Comp. St. 1901, p. 3654], punishing perjuries occurring in naturalization proceedings; section 711, cl. 1 [U. S. Comp. St. 1901, p. 577] giving United States Circuit and District Courts jurisdiction of all crimes and offenses cognizable under the authority of the United States.</p>

<p>L Carriers—Injury to Passenger—Parties—Servants—Joinder—Pleading.</p> <p>Where an engineer and conductor of a railroad train were joined with the railroad company as defendants in an action for injuries to a passenger from the derailment of the train, the averment of the accident and injuries resulting therefrom to the plaintiff, though sufficient to constitute a cause of action against the railroad company, was insufficient as against the engineer and conductor.</p> <p>3. Same—Liability of Servants.</p> <p>Servants of a railroad company in charge of a train on which a passenger was injured are not personally liable to such passenger for the injuries sustained unless the injury resulted from the misfeasance and positive wrongs of such servants.</p>

<p>1. Contracts—Breach—Elements of Damage—Verdict—Form.</p> <p>Where, in an action for breach of contract, plaintiff’s damages were alleged under four heads—for defendant’s failure to supply water, for defendant’s failure to provide a derrick, for failure to transport coal, and for denying an option to do certain additional work—a verdict finding in favor of plaintiff, and finding a specific sum of damages separately under each of such heads, >vas not erroneous.</p> <p>2. Same—Evidence.</p> <p>In an action for breach of a quarry contract, evidence held insufficient to support a verdict in favor of plaintiff for not furnishing water and a 16-ton derrick, as provided by the contract.</p> <p>3. Same—Work and Labor—Quasi Contract.</p> <p>Where a contract for the quarrying of marble required plaintiff to uncover and quarry not less than 50,000 cubic feet during the year 1901, and that, if he uncovered more than such amount, he should have an option of quarrying it on the same terms, and, by reason of his failure to quarry the amount required, he forfeited his right to the option, but he did certain additional uncovering which was beneficial to defendant, the owner of the quarry, plaintiff was entitled to recover for the benefit so conferred.</p>

<p>1. Habeas Corpus—Record—Supplemental Facts.</p> <p>In a habeas corpus proceeding to obtain relief from Imprisonment for contempt, the petitioner is entitled to supplement the record by alleging such additional facts as tend to show that his misbehavior was not a contempt. As to how far, see Ex parte Cuddy, 9 Sup. Ct. 703, 131 U. S. 280, 33 L. Ed. 154.</p> <p>2. Contempt—Federal Court—Officers—Resistance.</p> <p>Where relator was charged with contempt in resisting an officer of a federal District Court in the execution of orders of such court, it was immaterial whether at the time of the resistance the court was actually in session, with the judge then present, or whether the place of resistance was some distance from the actual place where court was usually held, so long as it was not in the actual presence of the court, or so near thereto as to embarrass the administration of justice.</p> <p>8 Same—Trustee in Bankruptcy—Assault—Contempt—District Court-Jurisdiction.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 [U. S. Comp. St 1901, p. 3420], providing that the District Courts of the United States sitting in bankruptcy are continuously open, and section 63 (30 Stat. 563 [U. S. Comp. St. 1901, p. 3448]), declaring that a trustee in bankruptcy is an officer of the court, such court has jurisdiction to summarily try and determine the merits of a proceeding to punish relator for an assault on a trustee in bankruptcy in the performance of his duties as such, as a contempt of such court.</p> <p>4 Same—Habeas Corpus—Circuit Court—Review.</p> <p>Where a federal District Court had jurisdiction to punish relator for an assault on a trustee in bankruptcy as for a contempt, alleged errors and irregularities in such proceeding could not be reviewed by the Circuit Court on a writ of habeas corpus.</p>

<p>1. Federal Courts—Jurisdiction—Statutes.</p> <p>Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], declaring tbe jurisdiction of federal circuit courts, limits tbe jurisdiction as to actions removed from state courts, as well as to actions originally begun in the circuit court.</p> <p>¶1. See Removal of Causes, vol. 42, Cent. Dig. § 3L</p> <p>2. Removal of Causes—District to Which Cause may be Removed.</p> <p>Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 435 [U. S. Comp. St. 1901, p. 510], providing that a cause removed from a state court shall be transferred to the circuit court to be held in the district where such suit is pending, should be construed to mean the district within the territorial limits of which the suit is pending in the state court.</p> <p>8. Same—Establishment of Districts—State Legislation—Effect.</p> <p>Where the boundaries of a federal judicial district were established by act of Congress, such districts could not be affected by subsequent state legislation organizing new counties, and changing county lines so as to change the district to which suits brought in the state courts of such counties might be removed.</p> <p>4 Same.</p> <p>Where, by reason of the subsequent organization of new counties after the establishment of federal judicial districts in the state, one of the counties was in two federal districts, a suit originating in the state courts of such county, and removable to the federal courts, could-be removed to either federal district, without regard to the district in which the county seat of the county was located.</p> <p>6. Same—Parties—Citizenship—Formal Defendant.</p> <p>Where a suit was brought to set aside certain land contracts against a nonresident defendant, and the register of deeds of the county in which the suit was brought was joined for the mere purpose of restraining him from recording such contracts pending the litigation, such officer was a mere formal party, and the fact that his citizenship was the same as that of plaintiff did not prevent the noncitizen defendant from removing the cause to the federal court.</p> <p>6. Same—Amount in Controversy.</p> <p>Where, on motion to remand a cause removed to the federal court, the removal petition stated that the amount in controversy exceeded $2,000, and it was alleged in the complaint that land contracts sought to be set aside were of greater value than $2,000, a contention that the matter in dispute did not exceed $2,000 in value was without merit.</p> <p>¶ 6. Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 26 C. C. A. 459.</p>

<p>Involuntary Bankruptcy.</p>

<p>1. Musical Compositions—Copybtght—Peoduction—Imitation.</p> <p>Plaintiffs were the owners and producers of a copyrighted song, which was rendered during the performance of an extravaganza by an actress who was required during the action to step to one of the boxes, single out a particular person, and sing the song to him alone, accompanied by certain gestures, postures, and other artistical effects; she being assisted in the chorus by a number of other actresses. Eeid, that an imitation of the actress while singing such song by another actress, in which she, in good faith, attempted to mimic the postures and gestures of the originál actress, etc., and used the chorus of the song only as a vehicle for the imitation, was not prohibited by Rev. St. § 4966, as amended in 1897 [3 U. S. Comp. St. 1901, p. 3415], prohibiting any person from publicly performing or representing any dramatic or musical composition for which a copyright had been obtained, without the consent of the proprietor.</p>

The complainant, a railroad corporation, claiming to own a right of way ioo feet wide for each of two parallel lines of railroad crossing land owned by the defendants, under a deed describing the right of way granted by the words: “A strip of land ioo feet in width, being 50 feet in width on each side of and parallel with the center line of the main track of thé Oregon Railway & Navigation Company’s railroads as the same are staked out and located over and across the lands…

<p>1. Wharves—Liability of Owners fob Injury of Vessel—Obstructions in Bottom.</p> <p>It Is the duty of a wharfinger to ascertain the condition of the bottom of the waters adjacent to his wharf which the public is invited to use, and if there are any dangerous obstructions to remove the same, or, if that cannot be done, to notify vessels using the wharf of their existence and position; and a general notice by the owners of a bulkhead to the master of a vessel of the depth of water, and that he must be responsible for any injury to his vessel while lying at the bulkhead, will not relieve such owners from liability for an injury caused by a rock projecting three feet from the bottom, of the existence of which the master was not notified.</p>

<p>On Exceptions to Report of Referee.</p>

<p>1. Involuntary Bankruptcy—Petitioning Creditors — Number — Competency.</p> <p>Where one of the three creditors signing an involuntary bankruptcy petition had received a preference within four months prior to the filing of the petition, which he had not surrendered, and ivas therefore disqualified from signing the petition, and there was no request for an amendment of the petition by including the names of other creditors, the-petition will be dismissed.</p>

<p>1. Shipping—Charter Party—Liability por Freight.</p> <p>Under a charter party providing that the charterer shall provide a full and complete cargo of sludge, he to pay $1.75 per ton for freight, there can be recovery only for the amount shipped; there being no evidence that the vessel could have prudently taken more of such a cargo, or that the master erred in his judgment that that was all she could prudently carry.</p> <p>2. Same—Demurrage.</p> <p>Complainant, on a libel for demurrage, is not .precluded from proving the exact loading and discharging times by having previously presented a bill for a smaller amount.</p> <p>¶ 2. Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.</p>

<p>1. Arrest—Persons Liable—Second Arrest op Person on Bail.</p> <p>A court which has In its custody a person charged with a crime has exclusive custody and jurisdiction until the question of his guilt or innocence is determined; and a person arrested on a commissioner’s warrant, and either in custody or held to hail pending his examination for removal to another district to answer to ‘a criminal charge, is not subject to a second arrest, for removal to a different district, until the first proceeding has been terminated.</p>

<p>In Bankruptcy. On certificate from H. A. Fuller, Referee.</p>

<p>In Bankruptcy.</p>

<p>1. Federal Courts—Jurisdiction—Diverse Citizenship—Aliens—Limited . Partnership.</p> <p>Where certain of the members of a limited partnership organized under the laws of New York were aliens, and such partnership was joined with a foreign corporation as a plaintiff in an action in the federal court in New York against a firm composed of citizens of New York, such limited partnership should not be treated, for the purpose of determining jurisdiction, as if it were a corporation located in New York, but the members thereof retain their individual rights as aliens entitled to sue in the federal courts.</p> <p>¶ 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>2. Trade-Marks—Labels — Actions—Parties.</p> <p>Where a bill by a corporation and a limited partnership for infringement of certain trade-marks and labels and for unfair competition showed that both plaintiffs had an actual, though not an equal, interest in the use of the marks and labels, they were properly joined as plaintiffs in such suit.</p> <p>3. Same — Infringement — Unlawful Competition — Causes of Action — Joinder.</p> <p>Where both the trade-mark and labels claimed to be owned by plaintiffs were made use of by defendants in the same acts that would con-' stitute a violation of the rights of the plaintiffs as to both, plaintiffs were entitled to join in a single suit in equity a cause of action for infringement of the trade-mark and labels and for unlawful competition.</p> <p>¶3, Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p> <p>A Same—Validity of Trade-Mark—Geographical Names—Demurrer.</p> <p>In a suit for infringement of certain trade-marks and labels and for unlawful competition, an objection that the trade-marks are invalid because consisting of geographical names, etc., cannot be considered on demurrer.</p>

<p>This matter comes up on writs of habeas corpus and certiorari directed to the marshal of the district who has the petitioner in custody under a warrant for removal issued by a District Judge of this district directing his removal from the city of New York to Washington, D. C., to plead to an indictment.</p>

<p>1. Involuntary Bankruptcy—Jury Trial— When Demandablb—Denial That Petitioners are Creditors.</p> <p>The only issues on which a person against whom an involuntary petition in bankruptcy has been filed is entitled of right to a jury trial are with respect to his insolvency and the acts of bankruptcy with which he is charged. He is not entitled to one with respect to whether the petitioners are in fact creditors, so as to be entitled to maintain the proceedings.</p> <p>¶1. See Bankruptcy, vol. 6, Cent. Dig. § 140.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Specifications of Objections to Discharge.</p>