Volume 126 — Federal Reporter

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

<p>1. Constitutional Law — Limitations of Police Power — Review of Regulations by Court.</p> <p>The police power of a state is not absolute, and its exercise is subject to review by the courts. Neither the Legislature nor a municipality can, under the guise of police' regulation, arbitrarily invade personal or property rights; and when such regulations are called in question the test should be whether they have some relation to the public health or public safety, and whether such is in fact the end sought to be attained. If not, they should be declared invalid, as exceeding the legislative power; but, if within such power, the courts have nothing to do with the wisdom, policy, or expediency of the law, the power to make it necessarily carrying with it the power to judge of its necessity, expediency, and justice, and primarily, at least, of the reasonableness of the means used to accomplish the end sought.</p> <p>8, Same — Interference with Private Rights.</p> <p>Laws or ordinances enacted under the police power for the protection of the public health, reasonably adapted to that end, are not unconstitutional because they may incidentally operate to deprive individuals of their property or its use without compensation, or interfere with their personal liberty, nor because they may give one person a monopoly of a certain business or occupation, private rights being required to yield in such case to the public good.</p> <p>8. Municipal Corporations — Contracts Made under Police Power — Disposition of Garbage.</p> <p>Const. Oal. art. 11, § 11, provides that municipal corporations may “make and enforce all such local, police, sanitary and other regulations as are not in conflict with general laws.” The consolidation act of April 25, 1863 (St. 1863, p. 540, c. 352), empowered the board of supervisors of the city and county of San Francisco “by regulation or order * * * to authorize and direct the summary abatement of nuisances; to make all regulations which may be necessary or expedient for the preservation of the public health, and the prevention of contagious diseases; to provide by regulation for the prevention and summary removal of all nuisances,” etc. Held that, having power, under such provisions, to itself regulate the removal and disposition of all garbage and refuse matter, the municipality had power to contract with others for such removal or disposition, and that an order granting an exclusive franchise or privilege to a person or his assigns to receive and destroy all garbage and refuse collected in the city for a term of 50 years, conditioned on his erecting and maintaining a crematory and burning all such garbage within 24 hours after the receipt and paying to the city a percentage of the gross receipts from the business was within the authority granted, as well as within the police power of the state.</p> <p>4: Same — Mode of Contracting — City and County of San Francisco.</p> <p>Under the consolidation act of April 25, 1863 (St. 1863, p. 540, c. 352), which authorizes the board of supervisors of the city and county of San Francisco to proceed under the police power by “regulation or order,” a contract for disposition of garbage may be made by an order, and the mayor’s signature is not essential to its validity.</p> <p>5. Same — Validity of Grant — Collateral Attack.</p> <p>The validity of a grant of a privilege or franchise by a municipal corporation, which amounts to a contract, and under which the grantee is acting, cannot be collaterally attacked by a private party in a suit in equity on the ground of irregularity in the exercise of its power by the municipality, nor because of the alleged failure of the grantee to perform the conditions imposed, the nonperformance of which it was provided should work a forfeiture, such matters being determinable only at suit of the granting authority.</p> <p>6. Same — Construction of Contract.</p> <p>An order of the board of supervisors of the city and county of San Francisco granted to complainant’s assignor “the sole and exclusive right and privilege” to cremate and destroy “within the city and county” all garbage or refuse for the term of 50 years, and to charge and collect the amount specified therefor at the crematory, a percentage of which was to be paid to the municipality in payment for the franchise. Held, that such order must be construed in accordance with the evident meaning of the parties as giving to complainant the right to receive for reduction at the plant built for the purpose all garbage collected in the city, and that complainant was entitled to an injunction to restrain the infringement of such exclusive right by defendants by collecting garbage and removing the same outside the city and county for disposition.</p>

<p>1. Mortgages — Superiority in Equity — Subsequent Mortgage of Legal Title to Pay Purchase Price.</p> <p>The mortgagee under the after-acquired property clause in a prior mortgage of an equitable title to land, which is subject to the condition that the mortgagor shall pay that portion of the unpaid purchase price which the purchaser of the legal title owes, before divesting him thereof, may not enforce a conveyance of the legal title, or subject to his mortgage a subsequent mortgage of that title to another for the purpose of securing the payment of a loan, a portion of the proceeds of which was applied to the payment of the unpaid part of the purchase price of the land, except upon condition that there shall be repaid to the subsequent mortgagee, out of the proceeds of the sale of the property or otherwise, the moneys which were taken from the proceeds of his loan and applied to the payment of the debt for the purchase price.</p> <p>Same — Taxes.</p> <p>The decree for the first mortgagee must also be conditioned with the repayment to the second mortgagee of the taxes upon the property which the latter has paid during the existence of his claim.</p> <p>8. Same — Future-Acquired Property — Interest Covered.</p> <p>A mortgage of future-acquired property attaches to the interest obtained by the mortgagor only, and is inferior to junior liens, incumbrances, and equities under which the property comes to the mortgagor.</p> <p>4. Cross-Bill — Requisite to Affirmative Relief.</p> <p>The general rule is that no affirmative relief can be granted to a defendant in equity in the absence of a cross-bill which prays for it.</p> <p>5. Same — Exception—Such Bill not Requisite to Compel One Who Asks Equity to Do Equity.</p> <p>There is an exception to the rule.</p> <p>It is that no cross-bill is necessary to enable a court of equity to grant any relief to a defendant, affirmative or otherwise, which the principle that he who asks equity must do equity requires the court to impose upon the complainant as a condition of granting to him all or a part of the relief which he seeks at its hands.</p> <p>6. Equity — Limitations—Right of Defendant to Equitable Relief.</p> <p>A court of chancery may, in a case in which the rules and principles of equity demand it, condition its grant of relief sought by a complainant with the enforcement of a claim or equity held by a defendant, which, by reason of the statute of limitations or otherwise, the latter could not enforce in any other way.</p> <p>7. Sam:e — Laches.</p> <p>One who has the legal title, or a parmount lien upon it, is not guilty of laches which will prevent him from asserting his equities therein in defense of a suit in chancery to deprive him of his title or lien, by the fact that he did not institute any suit or take any affirmative action to foreclose or avoid the equities of the complainant. It is time enough for him to present his equities when his legal title is assailed in a court of chancery.</p> <p>(Syllabus by the Court.)</p> <p>H 4. See Equity, vol. 19, Cent. Dig. § 450.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the District of Washington.</p> <p>This is an action arising upon a contract entered into between the appellant and the appellee in May, 1900, in the city of Seattle, state of Washington, wherein the appellee agreed to enter the employment of the government of the United States, under the full and complete direction of the chief quartermaster, department of Alaska, for such time as might be required for the completion of the work in contemplation, and to receive therefor the sum of í?5 per working day, and transportation to and from the point of engagement. The agreement is as follows:</p> <p>“This agreement, made this 6 day of June, A. D. 1900, between the government of the United States, represented by Major Gonzales S. Bingham as chief quartermaster, department of Alaska, as the party of the first part, and Ohesley C. Moses of the city of Seattle, county of King and state of Washington, as the party of the second part—</p> <p>“Witnesseth, that the said Ohesley O. Moses, of the city, county, and state as aforesaid, does agree to enter the employment of the government of the United States, under the full and complete direction of the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as party of the first part, for such time as may be required for the completion of the work, the party of the second part to receive as compensation for such services as may be required of him and as hereinafter stipulated, the sum of five dollars per working day.</p> <p>“That the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as the party of the first part, further agrees that the said Ohesley G. Moses as party of the second part, shall be furnished with the necessary transportation from the point at which he is engaged and these papers are executed to the point at which his services are required, without cost to him as the party of the second part, and when the stipulations of this agreement as hereinafter described are faithfully performed and his term of agreement shall have expired, or in case he becomes physically incapacitated through no fault of his own, the party of the first part further agrees that the party of the second part shall be furnished with return transportation from his post of duty to the point at which his contract of agreement was executed, free of expense to the party of the second part. The party of the second part further agrees that he will at all times cheerfully obey and respect the rules that may be made, and the orders that may be given, by the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, as the party of the first part, or his official representative, or authorized successor; that all the business of the department of which he may have knowledge will be zealously guarded as confidential and of strictly secret nature; that he will at all times and under all circumstances guard the interests of the government of the United States to the full and complete extent of his ability; that he will not absent himself, during his period of engagement, from his post of duty, except by permission of the said Gonzales S. Bingham, major and chief quartermaster, department of Alaska, or his official representative, or. his lawful successor, or is prevented therefrom by sickness or other intervention of Providence.</p> <p>“It is further agreed that, in consideration of the faithful performance of the terms of this agreement, the party of the second part is granted the privilege of purchasing such of the quartermaster’s and commissary supplies of the government of the United States for his own actual needs at the post at which he is assigned to duty, under such limitations as may be made by the department commander, at a cost not to exceed an advance of ten per centum over and above the cost to the United States government, to cover transportation; that quarters, as soon as available, will be furnished without expense to the said Ohesley 0. Moses, party of the second part.</p> <p>“In case that the said Ohesley 0. Moses, party of the second part, is not, at the time of the execution of this agreement, on the classified and eligible list of the civil service commission, it is further agreed by the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, that the said Ohesley C. Moses, party of the second part, if he be a skilled laborer, shall be engaged for a temporary period, at the end of which, if his services have been satisfactory, he shall be privileged to undergo an examination for permanent appointment in the classified civil service, should such examination be provided for by the United States civil service commission, and authorized by proper authority.</p> <p>“It is further agreed by the party of the second part that the violation of any or all of the stipulations of this agreement, by the party of the second part, shall give the right to the said Gonzales S. Bingham, major, and chief quartermaster, department of Alaska, party of the first part, to withhold f.’I or any part of the pay or any other emoluments to which the said Chesley C. Moses party of the second part, may be entitled.”</p> <p>It appears that the appellee proceeded from Seattle to Ft. Davis, Alaska, in pursuance of said agreement, and on or about the 1st day of July, 1900, commenced work as a carpenter upon certain buildings under construction for the quartermaster’s department at.that place, continuing at such work until July 1, 1901; that he worked 10 hours a day during the months of July, August, September, and October, except a few Sundays, when he worked but eight hours; that from November 1st to 21st he worked eight and one-half hours per day, and the remainder of the time but eight hours a day — making a total of 311 working days and nine Sundays. The appellee claims that eight hours constitutes a “working day,” under Act Cong. Aug. 1, 1892, c. 352, § 1, 27 Stat. 340 [U. S. Comp. St. 1901, p. 2521], and article 62, par. 812, of the United States army regulations, and asks that he be paid “time and a half” for all time worked in excess of eight hours on week days, and “double time” for Sundays and holidays, according to the custom prevailing at Ft. Davis during the period in question, and in the quartermaster’s department of the United States. He also asks for payment of $5 per day for 13 days after the completion of the work, during which the appellee was waiting for government transportation, and for $5 a day for 11 days occupied in making the return voyage to Seattle.</p> <p>The appellant claims that the appellee is estopped from now urging a claim for compensation for extra services, by reason of the acceptance by him, without protest, of compensation at the rate of $5 per day for each day worked, regardless of the number of hours, and receipting for the same, acquitting and discharging the government of all liability to him; also that the necessity for completing the buildings before winter, in order that the soldiers might be sheltered, constituted an emergency, which is excepted by the army regulations from the eight-hour law.</p> <p>The court below found as facts: “That by the terms of said contract said petitioner was to perform said services until the completion of said works, or until discharged with the consent of said quartermaster; that said petitioner was to receive the sum of five dollars per each working day; that said contract was silent as to the number of hours which under said agreement should constitute a working day; that the rules and regulations, of the army at that time in force providéd and provide that eight hours should constitute a day’s work in the quartermaster’s department, except in cases of emergency; that no emergency is shown to have existed at any time during the existence of said contract, or during the time said petitioner performed services; that said petitioner, pursuant to said contract, went to said Fort Davis,. Nome, Alaska, and rendered and performed services as such carpenter until he was discharged with the consent of said quartermaster, and in every way fully performed his part of said contract; that at the time said petitioner ceased to perform said services he received compensation therefor from said quartermaster at the rate of five dollars per day for each and every day he labored, without regard for, or consideration had, of the number of hours each day during which said petitioner labored; that said petitioner occupied two hundred and twenty-one and one-half hours in the performance of services as aforesaid over and in excess of the whole number of hours occupied at the rate of eight hours per day, and that in addition to the time-occupied by said petitioner in the performance of services at the rate of eight hours per day he occupied the full aggregate number of two hundred and twenty-one and one-half hours in the rendition of services as aforesaid, for which he has never received any compensation; that said number of two hundred and twenty-one and one-half hours amount to twenty-seven and 68/100 days, at the rate of eight hours per day; that at the rate of five dollars per day, being the contract price, said petitioner was and is entitled to further compensation from said defendant in the sum of one hundred and thirty-eight dollars and forty cents ($138.40); that said sum is due said petitioner, and remains unpaid.”</p> <p>From the foregoing facts the court concluded, as matter of law, that at the time said petitioner had fully performed his said agreement he received compensation from said defendant for his said services at the rate of $5 per-day for each and every day which petitioner performed such services, without regard for or any consideration had of the number of hours which petitioner worked each day; that as a matter of law said contract should be construed to mean that said petitioner undertook to perform said services at the rate of $5 per day consisting of eight hours; that under the rules of the Department of War in force at that time said petitioner was and is entitled to compensation at the rate of $5 per day consisting of eight hours per day, and would be entitled to extra compensation at the rate of $5 per day for all time occupied by petitioner in the rendition and performance of said services over and in excess of eight hours per day; that said petitioner did actually perform services as aforesaid over and in excess of eight hours per day, amounting to 27ss/100 days, which, at the rate of $5 per day, amounts to the sum of $138.40; that said petitioner is not entitled to time and a half nor to double time, as prayed for in his petition herein, nor to any part thereof, nor is he entitled to any wages for the time occupied by him in making his return voyage to Seattle, nor to any other sum claimed by him in his said petition, except only compensation at the rate of $5 per day for said overtime of 27ss/100 days, as above herein set forth.</p> <p>The judgment of the court was that the appellee do have and recover from the United States the full sum of $138.40. From this judgment and decree both parties have appealed.</p>

This action was brought in the circuit court of Elmore county, Ala., by William A. Chapman & Co., citizens of Rhode Island, against the Montgomery Water Power Company, a corporation chartered under the laws of New Jersey, to recover $150,000 damages. On the petition of the defendant corporation the case was removed to the circuit court of the United States for the Middle District of Alabama.

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

<p>1. Equity — Jurisdiction—Bill to Redeem.</p> <p>A court of equity has jurisdiction of a suit to redeem property from a mortgage after default in the payment of the mortgage debt, and the mortgagor has no adequate remedy at law.</p> <p>2. Insurance — Forfeiture—Failure to Pay Premium — Time Essence' of Agreement.</p> <p>The time of payment of a premium for insurance is, in the nature of the agreement, of the essence of the contract. A stipulation in the policy, in a note for the premium, or in any other instrument which evidences the contract of insurance or a part of it, that the insurance shall be void if the premium is not paid on the agreed day, is eonscionable, valid, and enforceable.</p> <p>3. Loan — Forfeiture for Delay — Contract for a Penalty.</p> <p>Time is not ordinarily of the essence of a contract to repay money borrowed. An agreement to forfeit or to lose money or property much in excess of interest during the delay on account of a failure to repay a loan on the stipulated day is a contract for a penalty for a failure to pay money, and is void, because compensation is the basic rule for the measure of damages, and interest during the delay gives full compensation.</p> <p>4. Equity — Decree Presumptively Correct.</p> <p>The finding and decree of a court of equity are presumptively right, and they should not be disturbed or modified by an appellate court unless an obvious error has intervened in the application of the law or some grave mistake has been made in the consideration of the facts.</p> <p>5. Abandonment — Test is Intent to Abandon.</p> <p>The test of abandonment of one’s rights is the existence or nonexistence of the intent to abandon them. The presumption is that the owner intends to preserve them. Acts indicating abandonment are not necessarily sufficient to establish it, but are generally only material as they tend to prove the intent to abandon.</p> <p>If 2. See Insurance, vol. 28, Cent. Dig. § 891.</p> <p>6. Contracts — Construction—Practical Interpretation op Parties Indicates.</p> <p>The practical interpretation given to their contracts by the parties to them while they are engaged in their performance, and before any controversy has arisen concerning them, is one of the best indications of their true intent, and courts that adopt and enforce such a construction are not likely to commit serious error.</p> <p>(Syllabus by the Court.)</p>

This is an action brought upon a policy of fidelity insurance taken out by the plaintiff in error upon its secretary and treasurer, Allen Bell. The plaintiff in error, while it was a corporation of the state of Washington, had but three persons in that state officially connected with its business. These were Charles Power, the general manager; Allen Bell, the secretary and assistant treasurer; and E. D. Manning, the auditor.

<p>1. Preliminary Injunction — Dissolution by Pinal Decree.</p> <p>A temporary injunction ceases to be effective on the entry of a final decree in the cause.</p> <p>2. Mines — Right of Majority Owner to Wore — Idaho Statute.</p> <p>Under the statute of Idaho, as construed by its Supreme Court, the owner of the majority interest in mining property is entitled to mine the same, accounting to the owner of the minority interest for his share of the net proceeds, in the absence of any showing of fraud or wrongdoing.</p> <p>8. Same — Wrongful Exclusion of Minority Owner — Measure of Liability for Ore Appropriated by Co-Tenant.</p> <p>Although the majority owner in a mine is authorized by statute to work the same, such authority does not extend to the right to exclude the minority owner from access to the property; and where the majority owner does so exclude its co-tenant, and is working the mine and retaining the entire proceeds under a claim of sole ownership through a deed obtained by fraud, it is liable on an accounting for the gross value at the mine of its co-tenant’s share of the ore produced, without any deduction for the cost of mining; and the fact that the minority owner, on the commencement of a suit to recover his interest in the mine and ore, did' not apply for a preliminary injunction, does not estop him to claim his share of such gross value of the ore thereafter taken out by defendant so long as he is so wrongfully excluded, the fact of the commencement of the suit being notice to defendant that it continued to exclude complainant at its peril.</p> <p>4. Same — Parties Liable for Trespass.</p> <p>Where, in a suit against a corporation and its individual grantors to cancel a deed to an interest in mining property for fraud, and to recover such interest and .complainant’s share of the ore taken out, it appears that such ore was taken and appropriated solely by the corporation defendant, complainant is entitled to judgment for the value of his interest therein against such defendant alone.</p> <p>V1. See Injunction, vol. 27, Cent. Dig. § 392.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Oregon.</p> <p>This suit was commenced by the appellee Lewis McArthur La Dow in the circuit court of the state of Oregon for Umatilla county in August, 1900, to partition certain real property between himself and the North American Trust Company, and to quiet the title to certain portions of the same property as between himself and Letitia Lombard, whose interest is represented by the appellants. The plaintiff claimed to be the owner in fee simple of the undivided one-half interest in lots 3, 4, 5, 6, 7, 8, 9, and 10, in block 8, in the city of Pendleton. The complaint alleged that Letitia Lombard was asserting some claim or interest in a part of the real property, but in fact had no interest in said property. The property claimed by Letitia Lombard is a piece 27 feet and 5 inches by 100 feet, on the west side of lots 7 and 8, in block 8, of the above-described property. The prayer of the complaint is for a decree of partition of said property between Lewis McArthur La Dow and the North American Trust Company, and for a decree that Letitia Lombard has no claim upon or interest in any portion of the real property in controversy. The defendant Letitia Lombard then filed a petition and undertaking for removal. of said cause to the United States Circuit Court for the district of Oregon, alleging that the suit was of a civil nature, to partition between the plaintiff and the defendant North American Trust Company the land described in the complaint, and a suit to quiet title between the plaintiff and the defendant Letitia Lombard to the portion of the property claimed by her, and that there was in said suit a controversy which was wholly between citizens of different states, and which could be fully determined as between them, to wit, a controversy between the defendant Letitia Lombard, a citizen of the state of. Illinois, and the plaintiff, a citizen of the state of Oregon. Upon giving the bond for removal, as provided by law, the cause was removed to the Circuit Court of the United States for the district of Oregon. Thereupon the plaintiff, by leave of the court, filed an amended bill of complaint The defendant Letitia Lombard having died during the course of the proceedings, the appellants herein were substituted as her representatives, Benjamin M. Lombard and Charles H. Lombard as her sole heirs at law, and Franklin S. Akin as her administrator.</p> <p>It appears that one George A. La Dow died intestate in Umatilla county, Or., about November 1, 1876, leaving surviving him Mattie A. La Dow, his widow, and Frank E. La Dow, and the complainant Lewis McArthur La Dow, minor children; that the said minors, by the death of the said George A. La Dow, became the owners in fee simple of real property described as lots numbered 3 to 10, inclusive, in block 8, in the city of Pendleton, state of Oregon, subject to the dower rights of the said Mattie A. La Dow; that the said Mattie A. La Dow was, about November 11, 1876, appointed guardian of the person and estate of the complainant Lewis McArthur La Dow, and continued to be such guardian until on or about the 12th day of September, 1889; that on that day proceedings were instituted by the said Mattie A. La Dow in the county court of Umatilla county, Or., for the sale of the complainant’s interest in the inherited property, and one Charles H. Carter was appointed guardian ad litem of the complainant, who was then about 14 years old. Frank E. La Dow had attained his majority on December 23, 1888. A sale of the complainant’s interest was ordered on October 12, 1889. The record of the proceedings show that the sale was made on November 14, 1889, to one Charles B. Isaae, for the consideration of $15,000. The sale was confirmed by the court on January 8, 1890, and on January 11, 1890, Mattie A. La Dow, guardian of Lewis McArthur La Dow, conveyed to C. B. Isaac the undivided one-half interest in said lots 3 to 10, inclusive, in block 8, in Pendleton, Or., subject to tbe dower right of Mattie A. La Dow. This deed was witnessed, sealed, and acknowledged so as to be entitled to record, and filed for record on January 20,1890. As we shall see presently, no such sale was in fact ever made, but these proceedings constitute .a link in the chain of title claimed by the appellants to the property in controversy. On March 13, 1894, Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac conveyed the whole of the property to James A. and Bertha Howard for the expressed consideration of §40,000. On January 21, 1895, James A. and Bertha Howard conveyed to B. M. Lombard a one-half interest in the portion of the property now claimed by Letitia Lombard. On May 10, 1895, B. M. Lombard conveyed the interest he had acquired to Letitia Lombard. On October 7, 1896, James A. and Bertha Howard conveyed an undivided half interest in a portion of the same property to Letitia Lombard, thus vesting the whole title to the lot therein conveyed in Letitia Lombard, if the conveyances are found to be valid.</p> <p>The record discloses, however, another and different transaction relating to-the title to this property. It appears that Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac signed an instrument dated at Kansas City, Mo., September 1, 1889, in which lots 3 to 10, inclusive, of block 8, in the city of Pendleton, Or., were mortgaged to the Jarvis-Conklin Mortgage Trust Company, of Kansas City, to secure the payment five years after that date of the sum of $17,350. The mortgage was acknowledged by Mattie A. La Dow on September 14, 1889, before J. C. Oliver, a notary public of Los Angeles county, Cal., and by Frank E. La Dow and Charles B. Isaac on September 27, 1889, before E. E. Sharon, a notary public of Umatilla county, Or. The mortgage so acknowledged was filed for record September 27, 1889. As there was no certificate as to the official character of the acknowledging officer before whom Mattie A. La Dow made her acknowledgment, she made a second acknowledgment of the mortgage before E. E. Sharon, a notary public of Umatilla county, Or., on November 22, 1889, and the mortgage, thus acknowledged, was again filed for record on that day. On December 14, 1889, the JarvisConklin Mortgage Trust Company assigned all its right, title, and interest in and to this mortgage to S. L. Conklin, and on November 25, 1896, Conklin commenced a suit in the circuit court of the state of Oregon for Umatilla county against Mattie A. La Dow, Frank E. La Dow, Lewis McArthur La Dow, Charles B. Isaac, James A. Howard and Bertha A. Howard, his wife, Letitia Lombard, and others, for the purpose of foreclosing the mortgage. The defendants appeared and resisted the foreclosure proceedings, the defendant Lewis McArthur La Dow setting up as a defense the facts concerning the proceedings taken in the county court for the sale of the property by Mattie A. La Dow, as his guardian, alleging the filing of the petition in the county court for the sale of the property, the order of sale by the court, and the sale of the premises to Charles B. Isaac. He also alleged the facts concerning the mortgaging of the property by Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac to the Jarvis-Conklin Mortgage Trust Company, and it was alleged as a defense that both proceedings, namely, the proceedings to sell the property and the action of the parties in mortgaging the property, were each and every one of them void as against the said Lewis McArthur La Dow, and ineffectual to divest him of any interest or right or title he may have had in the property, or of which he became the owner as the heir of George A. La Dow. The defendant Letitia Lombard filed her answer in said cause, in which she set up and alleged that she was the owner in fee simple of the parcel of land 27 feet and 5 inches by 100 feet, heretofore described. Thereafter the cause was tried in the state circuit court, and a final decree entered, in which it was adjudged and decreed that the proceedings taken by Mattie A. La Dow in the county court of Umatilla county, the order of sale of the premises, the sale thereof to Charles B. Isaac, and the mortgage of the premises made by Mattie A. La Dow, Frank E. La Dow, and Charles B. Isaac to the Jarvis-Conklin Mortgage Trust Company, and each and every one of them, were absolutely void as against Lewis McArthur La Dow, and ineffectual to divest any part or parcel of his right, title, and interest of, in, or to the said premises. The court further decreed that Lewis McArthur La Dow was the owner in fee simple, free from all liens and incumbrances, of the undivided one-half interest of all of the said property, subject to the dower right of Mattie A. La Dow, and the court decreed a foreclosure of the mortgage against all the-other defendants, and all their right, title, and interest in or to said property, and every part and parcel thereof, and against each and every one of them, and decreed that the same should be sold to satisfy the sum of $16,300 due upon the mortgage, together with interest and attorney’s fees. On appeal to the Supreme Court of Oregon the decree of the lower court was in all things affirmed, the court holding that the guardian had no power under the statute of the state to mortgage the land of the ward, and that the proceedings relating to the sale of the ward’s interest in the land were fictitious, fraudulent, and void. Conklin v. La Dow, 33 Or. 354, 54 Pac. 218. In pursuance of this decree, affirmed by the Supreme Court, execution was issued by the state circuit court, and sale made of the property to S. L. Conklin, except the undivided half interest therein of Lewis McArthur La Dow. Conklin assigned his certificate of sale to the North American Trust Company, who received the sheriff’s deed therefor, and for two years prior to the beginning of the present action the North American Trust Company and Lewis McArthur La Dow were in the sole possession of all the property. After the determination of the appeal in the state Supreme Court, as above stated, the sale of the property, confirmation of the sale, expiration of the time for redemption, and the execution and delivery of the sheriff’s deed, Letitia Lombard, as one of the defendants in that action, applied to the Supreme Court for a modification of its decree, and for a recall of its mandate issued in the case. The court granted the petition, and modified its decree, reaffirming the decree of the lower court, except so far as the conflicting claims of the respondents Letitia Lombard and Lewis McArthur La Dow to a portion of the mortgaged premises were determined thereby as between themselves. As to such matters, it was adjudged and decreed that so much of the decree of the lower court as in any way adjusted or interfered with the controversy between Letitia Lombard and Lewis McArthur La Dow as to their respective rights in the premises, as between themselves, he deemed erased, as by said mandate directed, and that otherwise the decree should stand as entered.</p> <p>In the bill of complaint in -the present suit the complainant recites the foregoing proceedings and transactions, and alleges that Letitia Lombard is estopped and ought not to be permitted or allowed to plead any right, title, or interest in the premises in controversy. The prayer of the bill is that Letitia Lombard be decreed to have no right, title, or interest in or to any part of the said property; that the said proceedings in the county court of Umatilla county, Or., be decreed to be null and void and ineffectual to devest any interest or title which complainant had in the property as heir of George A. La Dow, deceased; that complainant be decreed to be a tenant in common with the defendant North American Trust Company; and that the said property be partitioned between them as tenants in common, after ascertaining the value of the dower right of said Mattie A. La Dow therein.</p> <p>The defendant Letitia Lombard denies having had notice of any invalidity of proceedings in the county court, and avers that B. M. Lombard was an innocent purchaser in good faith for a valuable consideration, relying upon the record of said proceedings, and that she in turn purchased from him, paying a valuable consideration, and without notice or intimation that the title was not perfect. She denies that any other title was conveyed by the sheriff’s deed at the foreclosure sale than that of Frank E. La Dow to an undivided half interest in the entire property, and the dower right of Mattie A. La Dow in and to the same half interest, and avers that the mortgage did not affect the interest of the complainant Lewis McArthur La Dow, to which interest she is the legal successor, by reason of the purchase thereof in good faith by B. M. Lombard, and later by herself.</p> <p>The defendant North American Trust Company does not claim to have any knowledge of the respective rights of the parties claiming title', but avers that the property is still subject to the mortgage given to the Jarvis-Conklin Mortgage Trust Company for an amount unsatisfied by the sheriff’s sale; and admits that the partition prayed for by complainant may be made.</p> <p>The case proceeded to trial, resulting in a decree adjudging the complainant and the North American Trust Company to be tenants in common and sole owners of the property in controversy, but not providing for a partition as prayed for in the amended bill of complaint. It decrees that Letitia Lombard has no right, title, or interest in or to the property, and that the proceedings had in the county court of the state of Oregon for Umatilla county in the matter of the estate of Lewis McArthur La Dow, minor, were totally ineffectual to devest any interest, right, title, or estate which belonged to said Lewis McArthur La Dow in any of the real property described, as heir of George A. La Dow. A petition for rehearing was argued, resulting in the same decree, and a motion by the defendant Letitia Lombard for a judgment on the pleadings was denied. From this decree an appeal was taken to this court.</p>

<p>1. Army — Naty—Minors—Enlistment—Validity.</p> <p>Rev. St. § 1419, as amended by Act Feb. 23, 1881 [U. S. Comp. St. 1901, p. 1007] provides that minors between the ages of 14 and 18 years shall not be enlisted for naval service without the consent of their parents or guardians; and section 1420, as amended by the same act, declares that no minor under the age of 14 years shall be enlisted in the navy service. Held, that where a minor under the age of 18 years enlisted in the navy without the consent of his father, then living, on the minor’s fraudulent representation that he was over 21 years of age, such enlistment was not void as to the minor, but was voidable only, at the instance of his father.</p> <p>2. Same — Desertion—Aerest—Habeas Corpus.</p> <p>Under Rev. St. § 1624 [U. S. Comp. St. 1901, p. 1105], providing that the United States navy shall be governed by the articles of war, and article 8, providing that such punishment as a court-martial may adjudge may be inflicted on any person in the navy who deserts therefrom, where a minor between the ages of 14 and 18 years, without the consent of his father, then living, enlisted in the navy, and received the usual pay from the date of his enlistment until after he deserted, was arrested, and detained as a deserter, he could not be discharged from custody of the naval authorities on a writ of habeas corpus sued out by his father, though the latter was entitled to demand his son’s discharge from the navy as soon as he had answered and satisfied the charges for desertion then pending against him.</p> <p>H 1. See Army and Navy, vol. 4, Cent. Dig. § 48.</p>

<p>1. Corporations — Appointment of Receiver — Federal Courts.</p> <p>Under the established rule that a new equitable right created by a state statute may be enforced in a federal court, where it can be so enforced in conformity with the pleadings and practice in equity, the right given by the New Jersey statute (Revision 1896, p. 298, §§ 65, 66) to creditors or stockholders of a corporation which has become insolvent to apply to a court of chancery for an injunction and receiver may be enforced in a federal court by mortgage bondholders and stockholders of an insolvent corporation who have a lien on its property by express contract, where such court has jurisdiction by reason of diversity of citizenship and the value in dispute.</p> <p>2. Same — Equity Jurisdiction.</p> <p>A court of equity has power independently of statute to appoint a receiver for an insolvent corporation at suit of its mortgage bondholders and stockholders, where the bill alleges that the insolvency was produced by the gross mismanagement of its directors, who are also charged with positive misconduct amounting to a breach of trust.</p> <p>8. Same — Review on Appeal.</p> <p>The appointment of a receiver for an insolvent corporation is largely within the discretion of the court, and an order making such appointment, where within the court’s jurisdiction, will not be disturbed on appeal, unless it appears to have been improvidently made.</p> <p>IT 2. See Corporations, vol. 12, Cent. Dig. §§ 2203, 2206.</p>

<p>In Error to the Circuit - Court of the United States for the District of Colorado.</p> <p>This is an action at law against the Gunnell Gold Mining & Milling Company to recover $38,295 which is alleged to be due from that company upon 37 of its bonds and the coupons attached thereto, a portion of an issue of 750 bonds of $1,000 each which were secured by a mortgage upon all of its property then acquired or thereafter to be secured by the mortgagor. The defendant answered that each of the bonds recited the fact that it was one of 750 bonds of like tenor and effect, the payment of which was secured by a deed of trust, hereafter called a “mortgage,” made by the defendant, upon all the property which it owned at the time the mortgage was made, or might acquire thereafter; that the mortgage provided that, in case of default which should continue for the period of six months, the trustee, upon the request of holders of one-fourth or more of the bonds remaining unpaid, might take possession of the mortgaged property, collect the rents, issues, and profits thereof, foreclose the mortgage, sell the property, and distribute the proceeds ratably to the holders of the unpaid bonds and coupons, and that none of the holders of any of the bonds or coupons should proceed to take possession of the property or to foreclose the mortgage, unless the trustee, after suitable notice, refused so to do. The defendant also alleged in its answer that the $1,295 which was alleged to be owing upon the coupons attached to the 37 bonds had been paid. The plaintiff demurred to the answer upon the ground that the facts therein stated constituted no defense to the causes of action set forth in the complaint, and this demurrer was overruled. Thereupon the-plaintiff replied that the $1,295 owing upon the coupons had not been paid. The plaintiff then stood upon her demurrer and this reply, and the court rendered judgment for the defendant.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of West Virginia, In Equity.</p>

<p>1. Appeal — Review—Waiver op Error.</p> <p>The defendant in an action of forcible entry and detainer, by asking an instruction stating that “in this case it is conceded that the plaintiff was forcibly removed from the premises in controversy, * * * and is therefore entitled to recover possession of the premises,” ■ abandoned a defense justifying the alleged trespass, and waived an exception taken to the exclusion of evidence offered to sustain such defense.</p> <p>2. Indian Agents — Powers—Determination op Judicial Questions.</p> <p>The authority conferred on Indian agents by Bev. St. §§ 2147, 2149, 2150, to “remove from the Indian country all persons found therein contrary to law,” does not vest such an agent with power to determine a private controversy respecting the validity of a lease under which a non-citizen has gone into possession of Indian lands and made valuable improvements thereon, and to order his eviction from such land, without his removal from the Indian country. Such contracts involving private property rights are matters for adjudication by the judicial, and not the executive, department.</p>

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

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

<p>1. Resisting Indian Agent — Use of Deadly Weapon — Offense—Construction of Statutes.</p> <p>Act. Cong. July 18, 1866 (14 Stat. 178, c. 201), entitled “An act to further prevent smuggling and for other purposes,” provides (section 6) that any person who shall assault, resist, etc., any officer of the customs or his deputies, or any person authorized “by this act” to make searches and seizures, shall receive a prescribed punishment, and that if any person shall discharge any deadly weapon at any person authorized “as aforesaid” to make searches and seizures he shall be deemed guilty of felony, etc. This section, omitting the quoted portions, was incorporated into Rev. St. § 5447 [U. S. Comp. St. 1901, p. 3678], being placed in a chapter entitled “Crimes against the Operation of the Government,” with a marginal note defining it as “resisting revenue officers, rescuing or destroying seized property,” etc. Held, that using a deadly weapon in resisting án Indian agent who was making search for spirituous liquors on the reservation did not fall within section 5447.</p> <p>2. Same — Construction of Statutes — Marginal Note.</p> <p>Marginal notes in the Revised Statutes may he referred to on questions of construction, as indicating the intention of Congress not to alter by revision the substantial provisions of previous acts.</p> <p>8. Habeas Corpus — Void Judgment of Conviction.</p> <p>Where it appears affirmatively from the return in habeas corpus that the relators are imprisoned under a final sentence on a state of facts constituting no offense against the government, and which is therefore void on its face, habeas corpus is the proper remedy to procure their discharge.</p> <p>If 3. See Habeas Corpus, vol. 25, Cent. Dig. §§ 21, 22, 24, 27, 29.</p>

<p>1. Appeal — Allowance—Informality of Order.</p> <p>A formal order allowing an appeal is not essential, but it is sufficient if the record shows that an appeal was prayed, and was in fact allowed. An order granting leave to file a petition for appeal, and an assignment of errors, and a subsequent approval of the appeal bond, reciting the allowance of an appeal, is sufficient to show that the appeal was allowed when the petition therefor was filed.</p> <p>2. Same — Title for Perfecting — Extension.</p> <p>Rule 14, subd. 5 (90 Eed. clviii, 31 C. 0. A. clviii), of the rules of the Circuit Court of Appeals, providing that all appeals are returnable not exceeding 30 days from the date on which the appeal was allowed, and rule 16, subd. 1 (90 Eed. clix, 31 C. C. A. clix), making it the duty of the appellant to cause the record to be filed on or before the return day, must be observed; otherwise the appeal will be dismissed unless the time is enlarged before its expiration. An order enlarging the time for perfecting the appeal, made after such time has expired, is ineffectual.</p>

<p>1. Involuntary Bankruptcy — Tradino Corporation — Charter—Burden op Proof.</p> <p>Even if there were no question of ultra vires, the burden of proof is on the petitioning creditors to 'show that a corporation chartered for the purpose of transacting the business of a common carrier is a trading corporation within Bankr. Act July 1, 1898, e. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], providing that any corporation engaged principally in manufacturing, trading, etc., may be adjudged an involuntary bankrupt.</p> <p>2. Same — Evidence.</p> <p>The court comments on the nature of the proofs in this case, and holds that the finding of the referee that the corporation in question was “extensively engaged” in trading falls short of the statutory word “principally,” and would not justify an adjudication of bankruptcy.</p> <p>If 1. What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. First Nat Bank, 42 C. C. A. 4.</p>

<p>On Petition for a Writ of Supersedeas Pending Appeal.</p> <p>The petition of the appellants set forth the commencement of the two actions in the court below by the appellee against the appellants, the first in trespass, to recover damages for the extraction of certain ores and minerals from the locus in quo, the second in equity, to restrain further trespasses; that issues were joined in both cases; that upon the petition of appellee an order of inspection and survey of the premises was' made by the court; that an appeal was taken and perfected from said order by the appellants; that the court below had declined to stay said order; and that the execution of the same would be injurious to the appellants in many respects. The assignment of errors annexed to the appeal set forth eight grounds upon which the order was claimed to be erroneous.</p>

On Petition for Writ of Certiorari. The petitioners, the Montana Ore Purchasing Company et al., filed a petition for a writ of certiorari to review the action of the court below in making the order of inspection and survey mentioned in the next preceding case, and therein held by the court not to be appeal-able.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree of the Circuit Court, Southern District of New York, dismissing the bill on the ground that de-. fendants’ device does not infringe the claims of the patent sued on. 119 Fed. 178. The suit is brought on United States letters patent No. 430,328, of June 17, 1890, granted to Elihu Thomson for alternating current motor, and the two claims relied on are as follows:</p> <p>“(1) The herein described method of operating an alternating-current motor in which the rotation is produced by the reaction between the field and a locally-closed armature circuit carrying currents induced from the field, consisting in organizing or connecting the motor armature circuit so that it may receive an initial impulse of rotation, and upon the attainment of a predetermined speed changing or modifying such connection, so as to put the armature coils on locally-closed circuit.</p> <p>“(2) The herein described method of operating alternating-current motors incapable of self-starting, consisting in connecting the armature circuits in a manner different from that which they have during normal work, and in proper way to give the initial torque, and then automatically reorganizing the connections of such armature as to put the same on locally-closed circuit on the attainment of a predetermined speed.”</p>

This appeal is from a decree dismissing the bill of the Milwaukee Carving-Company for want of equity. The bill alleges ownership of two letters-patent for improvement in carving machines, issued to T. L. Smith and P. W. Post — one, No. 443,802, dated December 30, 1890, and the other, No. 447,796, dated March 10, 1891 — and infringement by the defendant, the-Brunswick-Balke Collender Company.

<p>In Equity. Suit for infringement of letters patent No. 424,964, for an oil or gas burner, granted to Frank R. Fennessy April 8, 1890. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 379,973, for overflow and connections for bathtubs, etc., granted to Charles H. Moore, March 27, 1888. On final hearing.

<p>1. Patents — Infringement—Suspenders.</p> <p>Tbe MacWilliam patent, No. 668,261, for an improvement in suspenders, construed, and held not anticipated, valid, and infringed as to claims 2 and 7.</p>

<p>1. Patents — Infringement—Ships’ Propellers.</p> <p>The Painton patent, No. 509,553, claim 4, for a ship’s propeller, construed, and held■ not infringed.</p>

<p>1. Master and Servant — Death op Servant — Felt.ow Servants.</p> <p>Plaintiff’s intestate was employed by defendant as a section hand, and lived, with others^ in a section house near the track. Defendant’s employés had been in the habit of cutting trains while standing on the tracks opposite the section house, to afford access to and from the house across the tracks, and on the occasion of decedent’s death he and other employés after working hours left the house to go to defendant’s depot for their own purposes, and while deceased was passing between certain cars standing on a track the opening was closed, and deceased was caught between the cars and killed, through the alleged negligence of the train operatives in failing to give deceased any warning of their intention to do so. Held, that, notwithstanding the injury occurred after working hours, the operatives in charge of the train were fellow servants of deceased, and that he therefore assumed the risk of injury from their negligence.</p> <p>If 1. Who are fellow servants, see notes to Morgan v. City of Des Moines, 8 C. C. A. 668; Canadian Pac. Ry. Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286.</p> <p>Injuries to servant while not on duty, see note to Ellsworth v. Metheney, 44 C. C. A. 489.</p> <p>See Master and Servant, vol. 34, Cent Dig. §§ 383, 500.</p>

<p>In Admiralty. Suit in rem for salvage services.</p>

<p>1. Courts — Divisions or State Court — State Laws.</p> <p>Where the constitutionality of a state statute dividing the Supreme Court of the state into divisions, and giving to each separate duties, etc., was decided by all of the justices of the Supreme Court sitting together, and the Constitution of the state provided that the judicial power should be vested in one Supreme Court, etc., such decision was by a constitutional tribunal, without regard to the fact that the petition in the case was filed in one of the divisions of the Supreme Court created by the statute.</p> <p>2. Same.</p> <p>Where a state statute dividing the state Supreme Court into divisions and conferring separate powers and duties on such divisions was held to be constitutional by all of the justices of such court sitting in banc in a case in which the question was directly involved, such decision is conclusive on the federal courts.</p> <p>If 2. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>See Courts, vol. 13, Cent. Dig. § 957.</p>

On Demurrer to Complaint. This is an action to recover damages for an alleged libelous publication.

<p>1. Bankruptcy — Petition—Joinder op Creditors — Number—Determination —Time.</p> <p>Whether the number of creditors of an involuntary bankrupt is less than 12, so as to entitle a single creditor to file an involuntary bankruptcy petition, as authorized by Bankr. Act July 1, 1898, c. 541, § 59, els. “b” and “d,” 30 Stat. 561, 562 [U. S. Comp. St. 1901, p. 3445] is to be determined as of the date of the petition.</p> <p>2. Same — Number op Creditors.</p> <p>In determining whether the number of creditors of a bankrupt was less than 12, so as to entitle a single creditor to sign an involuntary bankruptcy petition, creditors induced not to join by the voluntary assignee of the alleged bankrupt, acting in behalf of creditors, and not as the agent of the creditor signing the petition, should be counted.</p> <p>8. Same — Withdrawal prom Petition.</p> <p>Where a corporation authorized its agent to assent to an alleged bankrupt’s assignment, on a condition which was complied with, and the assent was made by the agent, but not under seal, and the agent had no authority to execute any instrument under seal, and thereafter the corporation, forgetting such assent, joined in a bankruptcy petition against the debtor, and thereafter ratified the act of its agent under seal, and applied to withdraw from the bankruptcy petition on the ground that it joined therein under a mistake of fact, such application should be granted.</p>

<p>Motion Made by Defendant for Dismissal of the Action or Leave to Serve Supplemental Answer.</p>

<p>1. Corporations — Contracts—Execution—Signature by Agent — Personal Liability.</p> <p>Where a contract sued on stated that it was between D., of defendant tool company, whose principal office and address was at Chicago, 111., party of the first part, and plaintiff, party of the second part, and recited that whereas D. had acquired sole and exclusive right to manufacture and sell a certain device, it was agreed that defendant should manufacture the same under certain stipulations, and the contract was signed by J. W. D., party of the first part, and plaintiff corporation, party of the second part, the contract was the personal obligation of D., and not the obligation of defendant company, with which D. was connected.</p>

<p>1. Seizures — Statutes—Constitutionality—Objections—Estoppel.</p> <p>Where certain tea was seized, on reimportation, the importer was not estopped to claim that the statute under which the seizure was made was unconstitutional, by reason of the fact that, on a former seizure of the tea on original importation under the same statute, he had given a bond to carry the tea out of the country, and not reimport it</p>

Defendants were arrested at Malone, N. Y., August 17, 1903, where they had presented themselves to the federal authorities, claiming to have been born in the United States, and were returning from a visit to China. A hearing was subsequently had before Hon. F. J. Gray, United States commissioner at Ogdensburg, N. Y. Both defendants were represented by counsel, and admitted they had come into the United States from Canada, and were Chinese persons, not of the exempt class.

<p>1. Unfair Competition — Substituting Different Article for That Called for.</p> <p>A merchant filling orders from customers for an article advertised by the manufacturer, and well known by its trade name, with a different and inferior article, is chargeable with unfair trade, and may be enjoined at suit of the manufacturer.</p> <p>TT I- 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 Trade-Marks and Trade-Names — Unlawful Competition — Names of Articles — Right to Use.</p> <p>Where plaintiff, wbo was the owner of a trade-name “Le Page’s,” which it attached to glue manufactured by it of high grades, sold to defendants without restriction glue of a lower grade in quantities, which defendants bottled in small quantities, and labeled “Le Page’s Glue,” such use of the name “Le Page’s” did not constitute unlawful competition.</p> <p>IT 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>Motion for Reargument.</p>

<p>1. Nonsuit — Failure to Prove — Surprise—New Trial.</p> <p>Where, in an action for injuries in the operation of a street railway, plaintiff was nonsuited for failure to prove that defendant controlled or operated the railway, a hew trial will not be granted on the ground that plaintiff’s counsel was surprised by the defense of defendant’s want of control, on a statement of plaintiff’s counsel only that he believed he would be able to produce such evidence on a new trial, as against the positive assertion of defendant’s counsel that no such evidence existed.</p>

<p>1. Aliens — Deportation—Exclusiveness op Executive Authority.</p> <p>By section 21, Act March 3, 1903 (32 Stat. 1218, e. 1012 [U. S. Comp. St. Supp. 1903, p. 180]), authority is conferred on the Secretary of the Treasury, when satisfied that an alien has been found in the United States in violation of said act, to cause such alien to be arrested and returned to the country whence he came at any time within three years after landing in this country; and an alien who is subject to such deportation, and who has been taken into custody for that purpose, cannot be discharged by a court on a writ of habeas corpus, notwithstanding any illegality in the proceedings.</p>

<p>1. Aliens — Deportation—Act March 3, 1903.</p> <p>The authority conferred on the Secretary of the Treasury by section 21, Act March 3, 1903 (32 Stat. 1218, c. 1012 [U. S. Comp. St. Supp. 1903, p. 180]), to cause the deportation of aliens found in the United States in violation of said act, does not extend to aliens who entered the country before its'passage, and when their entry was lawful, and the question of the 'time of the entry of an alien arrested and held for deportation thereunder is one involving the Jurisdiction of the officers assuming to exercise such authority, and may be inquired into by a court on a writ of habeas corpus.</p>

<p>1. Federad Courts — Jurisdiction.</p> <p>A federal court bas no jurisdiction of a suit removed from the state court unless the jurisdictional facts appear on the face of the pleadings to have existed at the time the suit was commenced as well as at the time of the filing of the petition for removal.</p> <p>2. Same — Joinder of Defendants.</p> <p>Where an action against several defendants is sought to be removed to the federal court, all the defendants should join in the petition.</p> <p>3. Same — Rearrangement of Parties.</p> <p>Where a suit to quiet title to a mine was brought against several defendants^ and only two of them joined in a petition to remove the cause to the federal court for diversity of citizenship, and the failure of the other defendants to join was sought to be obviated by a rearrangement of parties according to their alleged adverse interests, but such rearrangement did not extend to all of the defendants, .the citizenship of one not being stated, and the want of interest and the citizenship of the heirs of certain deceased defendants were not disclosed, the defect of misjoinder of the defendants was fatal.</p> <p>H 2. See Removal of Causes, vol. 42, Cent. Dig. § 90.</p>

<p>On Motion to Remand Cause.</p>

<p>On Demurrer to Indictment for Violation of Section 5440.</p>

<p>L Copyrights — Publication—Pleading—Evidence.</p> <p>Where, in a suit for infringement of a copyright, defendant pleaded a publication of the original painting without marking the same as required by law, by exhibiting it at the Royal Academy, evidence of the exclusiveness of such exhibition was admissible without amendment of the bill bringing forward such allegations as would avoid the effect of the exhibition alleged by the plea to amount to a publication.</p> <p>2. Same — Paintings—Notice op Copyright — Inscription on Original.</p> <p>Rev. St. § 4962, as amended by Act June 18, 1874, c. 301, 18 Stat. 78 [U. S: Comp. St. 1901, p. 3411], provides that no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof, if it be a painting, by inscribing upon some visible portion thereof a notice of the copyright. Held, that where a bill for the infringement of a copyright on a painting alleged that after taking out the copyright plaintiff began the publication of the painting, and printed and continued to print copies, on every one of which was printed the word “Copyright,” etc., and defendant filed a plea to the whole bill, alleging a prior publication of the original painting without being inscribed with notice of the copyright, the plea was sufficient to defeat the bill.</p>

<p>Application of J. B. Ryer, Son & Co., importers, for review of the decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on certain imported merchandise.</p> <p>The decision of the board, by De Vries, General Appraiser, reads as follows:</p> <p>The return of the local appraiser described this merchandise as “portiéres composed of flax and cotton, .raised in their manufacture to form a pile, flax the component material of chief value. They were therefore returned for duty as flax pile fabrics, at 60 per cent, ad valorem, under paragraph 342,” Tariff Act July 24, 1897, c. 11, § 1, Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663]. They were’ accordingly assessed for duty by the collector. The protestants claim the articles “dutiable at nine cents per square yard and 35 per cent, ad valorem, if unbleached, and twelve cents per square yard, if bleached, dyed, or colored, or at 47% per cent, ad valorem, under paragraph 315, Act July 24, 1897,” c. 11, § 1, Schedule I, 30 Stat 178 [U. S. Comp. St. 1901, p. 1659], No testimony was introduced at the hearing, and the return as to the character of the goods for that reason becomes final. We find the facts herein as returned by the appraiser, recited above.</p> <p>The question for decision is, are the articles, as found, properly dutiable under the provisions of paragraph 315, as claimed? It is not necessary to decide in this case whether or not they were properly assessed. This question is to be determined largely from the proper interpretation to be placed upon paragraph 315 when read in conjunction with paragraph 342. Paragraph 315 reads:</p> <p>“(315) Plushes, velvets, velveteens, corduroys, and all pile fabrics, cut or uncut; any of the foregoing composed of cotton or other vegetable fiber, not bleached, dyed, colored, stained, painted, or printed, nine cents per square yard and twenty-five per centum ad valorem; if bleached, dyed, colored, stained, painted, or printed, twelve cents per square yard and twenty-five per centum ad valorem: provided, that corduroys composed of cotton or other vegetable fiber weighing seven ounces or over per square yard,’ shall pay a duty of eighteen cents per square yard and twenty-five per centum ad valorem: provided further, that manufactures or articles in any form including such as are commonly known as bias dress facings or skirt bindings, made or cut from plushes, velvets, velveteens, corduroys, or other pile fabrics composed of cotton or other vegetable fiber, shall be subject to the foregoing rates of duty and in addition thereto ten per centum ad valorem: provided further, that none of the articles or fabrics provided for in this paragraph shall pay a less rate than forty-seven and one-half per centum ad valorem.”</p> <p>Paragraph 342 reads:</p> <p>“(342) All pile fabrics of which flax is the component material of chief value, sixty per centum ad valorem.”</p> <p>Reading the purview or body of paragraph 315 down to the first proviso in connection with paragraph 342, we ascertain precisely what merchandise is intended to be covered by the former. Such a comparison shows that, while paragraph 315 prima facie covers all pile fabrics “composed of cotton or other vegetable fiber,” yet, when read in connection with paragraph 342, which covers “all pile fabrics of which flax is the component material of chief value,” the latter is found to be the more specific provision for all pile fabrics composed in chief value of flax, excepting such from the provisions of paragraph 315. It requires neither authority, nor more than the suggestion of this comparison, to deduce the indisputable conclusion that the body of paragraph 315 does not extend to or include, as written in the tariff act, any pile fabrics of which flax is the component material of chief value, but does extend to and include all other pile fabrics composed of cotton or other vegetable fiber. The question of the ^.ope of the words “fabrics” and “articles” does not enter into the inquiry thus far. Note Stem v. United States, 98 Fed. 417, 39 C. C. A. 119, and In re Stern, G. A. 4609.</p> <p>With this ascertainment borne in mind, we proceed to consider the exact import of the several provisos to paragraph 315. In so doing, the cardinal principle of construction and the scope of the provisos to the paragraph must be borne in mind. The general principle has been concisely stated in G. A. 4834, wherein the board said: “The uniform construction of statutes has been that the proviso is limited to the particular paragraph to which it forms a part, unless by the express language thereof the Legislature has provided for a more extended application.” The rule was stated by the Supreme Court of the United States in the case of U. S. v. Dickson, 15 Pet., page 165, 10 L. Ed. 689, wherein the court said: “We are led to the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso carves out special exceptions only out of the enacting clause, and those who set up any such exception must •s'Stablish it as being within the words, as well as within the reason thereof.” The same principle is enunciated in Endlich on Interpretation of the Statutes, § 186; supported by many authorities, wherein it is said: “Moreover, a proviso is always to be construed with reference to the immediately preceding parts of the clause to which it is attached, and limits only the passage to which it is appended, and not the whole section or act, or at least only the section with which it is incorporated.” In the case of U. S. v. J. Allston Newhall & Co. (C. G.) 91 Fed. 529, the Circuit Court for Massachusetts said: “Under the former principle of statutory construction, a proviso is to be strictly construed, and it takes no case out of the enacting clause which does not fall fairly within its terms.”</p> <p>Applying these rules of interpretation to the provisos to paragraph 315, no one of them can be said to apply to pile fabrics of flax chief value, under the general rules of construction, unless there are some express words in the particular proviso that extends it to such fabrics. This is the inevitable conclusion from that reached in the first instance, to wit, that the body of the act does not apply to pile fabrics of flax chief value. The particular proviso invoked in this case is the second one to the paragraph in question There appears to be no language in that paragraph which would seem to extend its scope beyond that of the body of the paragraph preceding it. On the contrary, there appears to be express language in the proviso which limits it to the materials covered by the body of the paragraph. We take it, there can be no question about the third proviso and its effect, inasmuch as by the language thereof it is expressly limited to “articles or fabrics provided for in this paragraph.” In determining the exact scope of the second proviso, it will be noted that those parts thereof descriptive of the merchandise to which it is applicable are almost in htec verba with the similarly descriptive language in the body of the paragraph. Both body and proviso purport to assess duties upon “plushes, velvets, velveteens, corduroys, or other pile fabrics composed of cotton or other vegetable fiber.” The proviso extends to articles and manufactures, while the body of the act would seem to extend to fabrics of these materials. But if it is true, as we have seen, that the exact language used in the body of the act, when construed in connection with paragraph 342, does not extend to pile fabrics of flax chief value, we do not think, under the authorities cited, that it can be said that the proviso which uses the same language as descriptive of the merchandise which it covers extends to a class of fabrics not included, within the body of the act. Moreover, it will be observed that there is a uniform arrangement of rates of duty specified in the body of the paragraph, and those rates are increased 10 per centum in the proviso when the fabrics provided for in the body of the act are made into articles or manufactures. The third proviso to the paragraph continues this harmony of arrangement by placing a minimum rate of 47% per centum ad valorem upon all of the duties levied in the preceding parts of the paragraph. This harmony of arrangement obtains if the construction which we have placed upon the body of the paragraph is correct; but, if it should be held that this proviso extends to articles and manufactures made from pile fabrics of flax chief value, then we introduce the inharmonious provision into the tariff act that pile fabrics made of flax are dutiable at 60 per centum ad valorem, but, when further manufacture is bestowed upon them, and further labor is employed in making them into articles, the rate of duty is thereupon reduced from 60 per centum to 47% per centum. We cannot hold that such an obviously absurd intent was in the mind of Congress at the time of the enactment of the statute under consideration. Speaking of the interpretation of the various parts of the statute, Sutherland on the Interpretation of Statutes, par. 240, states: “They are to be brought in harmony, if possible, and so construed that no clause, sentence, or word shall be void, superfluous, or insignificant.” It is one of the cardinal principles of statutory construction that effect should be given to all parts of a statute, if possible, and that that construction of two possible ones should be adopted which would give effect to all of the provisions of the act under consideration. If, as otherwise appears, paragraph 315 does not extend to pile fabrics or articles of flax chief value, then the harmonious construction can be placed upon the provisions as written. In our opinion, the provisions of paragraph 315 of the act in question do not extend to pile fabrics or articles composed in chief value of flax. The protest, being based upon the assumption that such articles are included within the provisions of that paragraph, is overruled.</p>

<p>1. Bankruptcy — Issues—Determination—Review.</p> <p>A referee’s determination of an issue of fact as to whether an alleged bankrupt, who was a private banker, was also engaged chiefly in farming, would not be reversed on appeal unless the finding was flagrantly against the weight of the evidence.</p> <p>2. Acts of Bankruptcy — General Assignment — Insolvency.</p> <p>The making of a general assignment for the benefit of creditors is an act of bankruptcy, regardless of the debtor’s solvency.</p> <p>3. Persons Liable — Farms—Private Bankers.</p> <p>Bankr. Act July 1, 1898, c. 541, § 4, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], provides that any natural person, except a person engaged chiefly In farming, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt, and shall be subject to the provisions and entitled to the benefits of the act, and that private bankers, but not national banks or banks incorporated under statute or territorial laws, may be adjudged involuntary bankrupts. Held, that where a referee found that, though an alleged bankrupt was a private banker, he was engaged chiefly in farming, a petition to adjudge him an involuntary bankrupt should be denied.</p> <p>1[ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>f 2. See Bankruptcy, vol. 6, Cent. Dig. § 80.</p> <p>! 3. What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.</p>

<p>1. Malicious Prosecution — Probable Cause — Effect of Conviction.</p> <p>The fact that a plaintiff in malicious prosecution was convicted of the crime charged, which conviction remains unimpeaehed, is conclusive against him as to probable cause.</p> <p>If 1. See Malicious Prosecution, vol. 33, Cent. Dig. §§ 52, 53.</p>

<p>1. Aliens — Immigration—Exclusion op Anarchists — Fact op Anarchistic Bbliep — Decision op Board op Special Inquiry — Conclusiveness.</p> <p>A decision of the immigration board of special inquiry that an immigrant is an anarchist is not open to review by the United States Circuit Court in habeas corpus proceedings.</p> <p>2. Same — Constitutionality op Statute — Guaranty op Religious Freedom and Freedom op Speech.</p> <p>Immigration Act March 3, 1903, c. 1012, § 2, 32 Stat. 1214 [U. S. Comp. St. Supp. 1903, p. 172], by which alien anarchists are excluded from the United States, is not in contravention of article 1 of the amendments to the Constitution, providing that Congress shall make no law prohibiting the free exercise of religion or abridging the freedom of speech.</p>

<p>Appeal by C. L. Tiffany & Co., importers, from the decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on certain imported merchandise. G. A. 4224.</p> <p>The opinion of the Board of General Appraisers, delivered by General Appraiser Tichenor, reads as follows:</p> <p>The articles in question are bowls, vases, trays, wine pitchers, teacups, altar sets, flower stands, and other completed articles, manufactured from jade by cutting, carving, or other means. They were assessed for duty at 45 per cent, ad valorem under the provision in paragraph 97, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1633), for articles composed of mineral substances, decorated, and are claimed to be dutiable at 10 per cent, ad valorem under the provision in paragraph 435, Schedule N, § 1, c. 11, Act July 24, 1897, 30 Stat. 192 (U. S. Comp. St. 1901, p. 1676), for “precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, and not set,” or at 20 per cent, ad valorem under section 6 of said, act, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), as nonenumerated manufactured articles.</p> <p>As appears from G. A. 4166, jade is not, in strict commercial or scientific parlance, a precious stone, but may be included with those known as semiprecious or fancy stones. It is described in the Standard Dictionary as “a hard, tough, greenish silicate, used for making ornaments, etc.; a name given to jadeite and nephrite, a variety of amphibole; called also axstone.” It is highly valued in China, where it is said to have been used for some thousands ■of years in making articles such as those here in question (which come from there), as well as smaller articles, either for ornamental or decorative use, including jewelry. It differs essentially in formation and appearance from •diamonds and the few other gems known as precious stones, which have a natural cleavage, and to which the trade terms used in the tariff, “cleaving,” “splitting,” particularly apply. It assimilates more closely in appearance and character to agate, garnet, jasper, onyx, and the other so-called semiprecious stones, manufactures of which are provided for in paragraph 115, Schedule B, § 1, c. 11, of the tariff act, 30 Stat. 159 (U. S. Comp. St. 1901, p. 1636). Even though it were conceded that jade is in a commercial sense a precious stone, the protestants’ claim would still be inadmissible, as the articles here in question are no longer “precious stones,” or “stones” of any kind, in commercial sense. They are bowls, vases, teacups, pitchers, etc., known in trade by these names, and are completed articles of utility. They are jade wares, just as articles of similar form and use made from china clay are known as chinaware. A block of marble, after having been converted by the sculptor’s ■chisel into an object of statuary, is still marble, to be sure, but has ceased to be a block of marble, and is known in commerce and in art as statuary — ■ marble statuary, to be sure, but as statuary. “We think the term [“precious stones”], as used in Schedule N, applies to all stones known as precious, whether in their original condition, or advanced beyond it by cutting, polishing, etc., so long as they remain stones in the commercial sense of the word.” Erhardt v. Hahn, 55 Fed. 273, 55 C. C. A. 99. Being manufactured articles composed of a mineral substance, they cannot be made dutiable under section 6 of the tariff act, since they are specially provided for in paragraph 97 of the act. As the protest does not claim that the articles are dutiable at 35 per cent, ad valorem under that paragraph, it is not necessary for ■us to decide whether they are decorated, or not, in contemplation of law.</p> <p>We find as matter of fact:</p> <p>(1) That the merchandise in question consists of bowls, vases, wine pitchers, teacups, altar sets, flower stands, and other articles of utility, all completed and ready for the uses for which intended.</p> <p>(2) That said articles are manufactured from the mineral substance known as jade, and which is sometimes designated in commerce as a semiprecious stone.</p> <p>This case is distinguishable from that considered in G. A. 4069, where' ■certain handles for penholders and other articles made of agate, which were imported under the tariff act of March 3, 1883, c. 121, 22 Stat. 514, were held to be dutiable at 10 per cent, ad valorem, provided for “precious stones of all kinds,” by virtue of the similitude clause in section 2499, Bev. St. In the present case the protest does not claim under the similitude clause (section 7, c. 11, Act July 24, 1897, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]). Therefore that clause cannot be considered. Hahn v. Erhardt, 78 Fed. 620, 24 C. C. A. 265. Furthermore, it would not be applicable here if it were specifically claimed, since it only applies to articles not enumerated, whereas the merchandise here in question is enumerated as articles composed of mineral substance. Mason v. Robertson, 139 U. S. 624, 11 Sup. Ct. 668, 35 L. Ed. 293. See, also, G. A. 1717, 2999, and 3162.</p>

-In Error to the Circuit Court of the United States for the Western District of Missouri. This action was brought by Lyt T. Johnston, the defendant in error, against George S. Tamblyn and Robert L. Tamblyn, doing business as partners under the name of Tamblyn & Tamblyn, the plaintiffs in error, and resulted in a verdict in favor of the plaintiff in the lower court.

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

<p>1. Fires — Spread—Ownership op Property — Railroad—Liability.</p> <p>Where a railroad company owned a tract of unplatted low land, which was not used for railroad purposes, and permitted the city to use the land as a public dumping ground, the railroad retaining no substantial control over the conduct of the work, and no fires were set out or maintained in the dump with the railroad’s consent or for its benefit, the railroad’s ownership of the ground, or the fact that on one occasion it had made suggestions as to the filling, and had twice assisted in subduing fires which had broken out in the dump, were insufficient to render the railroad liable for damages to plaintiff’s building from fire communicated from a fire originating in the dump.</p> <p>2. Same — Nuisance.</p> <p>The collection of refuse or waste materials of a city, and the deposit thereof by the city authorities on land with the consent of the owner, is the proper exercise of a municipal function, and hence the maintenance of such dump is not of itself a nuisance.</p> <p>8. Same — Municipal Corporations — Gathering Repuse — Powers—Ministerial Functions.</p> <p>The gathering of refuse and waste by a city, and the establishment, maintenance, and operation of dumping grounds for its ultimate disposal, under the direction of the officers of the city health department, is a duty of local or municipal concern, not performed in the exercise of any governmental function; and hence the city is liable for the negligence of its officers and agents engaged in the performance of such work.</p> <p>4. Same — Local Laws — Federal Courts — Application.</p> <p>Whether a municipal corporation in a state is responsible for negligence of its officers in any stated ease is a matter of local law, which it is the duty of the federal courts within such state to follow, when made manifest by legislative action or the decisions of the highest state court.</p> <p>5. Same — Instructions.</p> <p>Where, in an action to recover damages from fire originating in a dump maintained by defendant city, the court repeatedly charged that the city was not liable unless it omitted the exercise of ordinary care and diligence in the management of the dump, an instruction defining negligence as the failure to observe for the protection of the interests and property of another person ordinary eare, precaution, and vigilance was not error, for failure to include the element of duty owing by the city to plaintiff.</p> <p>6. Same — Construction op Instructions.</p> <p>Instructions to the jury must be considered in their entirety, and not by excerpts isolated from their context.</p>

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

This was a suit in equity, which grew out of the following facts: Thomas Barrett, Jr., a citizen of Georgia, secured certain options from owners on both sides of the Savannah river in the states of South Carolina and Georgia for the purpose of obtaining a site upon which to erect a plant for the purpose of utilizing the water power of said river at a point near Ring Jaw Shoals.

<p>1. Legacy — Expenditure for Legatee’s Education — Subsequent Recovery.</p> <p>Where an executor expends the greater part of a legacy, payable when the legatee should become of age, for the legatee’s support and education, turning over the balance to her after her marriage, and about the time she becomes of age, the legatee cannot, more than 12 years afterwards, have the estate opened up for the purpose of compelling payment of the legacy a second time.</p> <p>2. Administration of Decedent’s Estate — Purchase by Executor — Validity.</p> <p>Where an executor, who is also a surviving partner in a firm in course of liquidation, explains to the sole legatee of the deceased partner the desirability of her disposing of her interest in the remnants of the firm property, and offers to purchase the same at a price to be fixed by a business man of experience and standing to be selected by her, and she approves of the suggestion, and selects a business man to act for her, and the executor buys the legatee’s interest at an adequate price fixed by such business man, the sale will not, 12 years later, be set aside upon-her application, though, for the purpose of perfecting the title, the-executor, as such, conveys to his copartner, who reconveys to him individually.</p> <p>3. Same — Executor’s Compensation — Allow arce op Extra Pees.</p> <p>Where an executor, having rendered extraordinary services in the conduct of litigation for the estate and for its legatee, arranges with the legatee for extra compensation, one-half of which is to he paid to a relative of decedent who has received nothing under the will, which arrangement is carried out, and the executor’s final account approved hy the legatee, she cannot, 12 years later, object to such extra compensation.</p> <p>4. Same — Pinal Account — Pailure to Pile.</p> <p>'Where an executor and the sole legatee of an estate presented to the probate court an affidavit showing the complete settlement of the estate, and reciting a discharge of the executor by the legatee, and the executor’s final account is indorsed with a release by the legatee, the fact that the final account then presented to the court was not filed, but was retained by the executor, is immaterial.</p>

<p>1. Appeal — Grounds of Affirmance — Questions not Raised Below.</p> <p>While a judgment may be affirmed upon a ground other than that which influenced the trial court, the general rule is that a theory of a case or an assumption of fact adopted by a trial court with the acquiescence of the parties will be followed by an appellate court to which the cause is taken; and such rule will be applied where the ground relied on in the appellate court to support a judgment otherwise erroneous involves a question of fact not fully developed at the trial, to which the attention of neither the trial court nor opposing counsel was called.</p> <p>2. Same.</p> <p>Where the only question controverted on the trial of an action of ejectment was the validity of a tax deed under which defendants claimed, •which was sustained by the court (the sufficiency of plaintiff’s title, except for such deed, being assumed), an appellate court will not affirm the judgment on the ground (asserted in that court for the first time) that an abstract of title introduced in evidence by stipulation to prove plaintiff’s title failed to show that a trustee had power to execute one of the deeds through which plaintiff claimed; the question being one which ' could have been definitely determined if it had been raised in the trial court.</p> <p>8. Statutes — Powers of Legislature at Special Session — Limitation by Governor’s Proclamation.</p> <p>Under the Constitution of Colorado, which provides that in the calling of special sessions of the General Assembly the Governor shall indicate the subjects of legislation to be dealt with, and that the business of any such session shall be confined to the matters specifically mentioned in the proclamation, where one of the subjects named in a proclamation was, “To provide to reduce the penalties and interest on delinquent taxes to one half the present rates,” the Legislature was authorized to legislate on the general subject of reduction, the extent of such reduction being a matter within its discretion; and the fact that the reduction made was not exactly that recommended did not render the statute unconstitutional.</p> <p>4. Same — Constitutionality—Title of Act.</p> <p>Under Const. Colo. art. 5, § 21, providing that “no bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed- in its title,” as construed by the Supreme Court of the state, an act entitled “An act concerning penalties and interest on delinquent taxes and providing for the manner of advertising and collecting the same, and repealing all acts in conflict therewith” is not unconstitutional; the words added to those stating the general subject of the act being germane to such subject, and properly subdivisions thereunder.</p> <p>5. Tax Sale — Statute Governing — Repeal of Prior Acts.</p> <p>Act Colo. March 3, 189-4 (Sess. Laws 1894, p. 45), relating to penalties and interest on delinquent taxes, and repealing all laws in conflict therewith, superseded all prior legislation fixing the amount of such penalties and interest, and governs as to the amount which could lawfully be included in tax sales made after it went into effect.</p> <p>6. Same — Validity—Sale for Excessive Amount.</p> <p>A sale of land for taxes for 60 cents more than the amount lawfully due, where the total amount was only $12.03, was for an excess which was relatively appreciable, and vitiated the sale.</p>

<p>1. Mails — Fraudulent Use — Indictment.</p> <p>Where an indictment for using the mails for the purpose of furthering a scheme to defraud, in violation of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], alleged that said scheme and artifice was to be effected by opening correspondence and communication with persons sought to be defrauded by means of the post office establishment of the United States, etc., an objection that the indictment was insufficient for failure to allege that the use of the mails was part and parcel of the scheme was not well taken.</p> <p>2. Same — Intention—Beneeit to Accused.</p> <p>In a prosecution for violating Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], prohibiting any person to further any scheme to defraud by opening communication with persons to be defrauded by means of the United States post office, the defendant’s intention to obtain a benefit by the alleged fraud, or to convert the money obtained thereby to his own use, is not an element of the offense.</p> <p>8, Same — Duplicity.</p> <p>In a prosecution for using the United States mails to further a scheme to defraud, in violation' of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], an indictment charging that the scheme was to be effected by opening correspondence or communication with those persons by means of the post office, “and” by inciting them to open correspondence with a certain concern, was not objectionable for duplicity.</p> <p>4. Same — Evidence.</p> <p>Where a scheme to defraud was dependent on the use of the mails for its success, and the evidence showed such a wholesale use of the mails that an intelligent mind could reach no other conclusion than that such use was contemplated by the persons originating the scheme from the beginning, the evidence was sufficient to establish that the use of the mails was a parcel of the alleged scheme, though no witness testified to such fact directly, and it appeared that some of the communications between the swindlers and their victims were exchanged without the use of the mails.</p> <p>1f 1. Matter relating to frauds and counterfeiting as nonmailable, see note to Timmons v. United States, 30 C. C. A. 86.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The appellant is charged with the crime of obtaining $100 worth of jewelry at Youngstown, Ohio, by false pretenses contrary to the laws of that state. He was arrested as a fugitive from justice and brought before a magistrate of the city of New York, August 11, 1902. Pending the hearing the accused obtained writs of habeas corpus from the Supreme Court of New York, which were subsequently dismissed, and he was remanded to the city prison for further examination. On August 18, 1902, another city magistrate issued a warrant directing that the accused forthwith be brought before him. This was done, an examination was had and the accused was committed, pursuant to section 830 of the New York Code of Criminal Procedure, for a period of 30 days to enable an arrest to be made on the warrant of the Governor in extradition proceedings. The Governor of Ohio having duly made requisition, dated August 13, 1902, the Governor of New York, after a hearing, at which the accused was represented by counsel, issued his warrant, dated August 22, 1902, directed to the police commissioner of New York City, directing him to arrest the accused and deliver him to the duly accrédited agent of Ohio to be taken to that state. The warrant recites that it has been represented by the Governor of Ohio that the accused stands charged in that state of the crime of securing property by false pretenses, which is a crime under the laws of Ohio, and that he has fled from that state. The warrant further recites that the requisition was accompanied by affidavits and other papers, duly certified by the Governor of Ohio to be authentic, charging the accused with having committed the said crime and with having fled from Ohio and taken refuge in the state of New York. On August 22d, the same day that the Governor issued his warrant, the United States District Court for the Southern District of New York allowed a writ of habeas corpus, returnable September 3, 1902, to test the validity of the commitment by the magistrate. On the 23d of August the accused was arrested by the police commissioner, by virtue of the Governor’s warrant, and on the same day the writ of habeas corpus was served. The attorney who represented the accused before the Governor swears that he informed the Governor that a writ of habeas corpus had been allowed by the United States District Court. A second writ of habeas corpus, to test the validity of the Governor’s warrant, was allowed by the District Court on August 29th, and was served on that day. After the production of the accused the hearing was adjourned until September 3d. The Police Commissioner made return to the writ that he held the accused by virtue of the Governor’s warrant. On September 16, 1902, the District Court discharged both writs and remanded the accused to the custody of the police commissioner. In his opinion the District Judge says: “Exactly what occurred at the hearing before the Governor is not before me, as the return to the writ does not set forth the, proceedings, but enough appears in the petitioner’s papers to show that the Governor was proceeding with a due regard to the rights of the accused.” The originals of. the papers used before the Governor are not now before the court, but papers which are sworn to be copies by the attorney who represented the accused are set forth in the record. It appears that at least one witness was examined before the Governor, but no authentic report of the testimony or the proceedings appears in the record.</p>

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

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

<p>1. Building Contracts — Controversies—Decision—Implied Provisions..</p> <p>Where a building contract did not provide that the architect’s decision on any disputed question should be final and conclusive, a provision to such effect could not be implied.</p> <p>2. Same — Performance of Work — Satisfaction of Designated Person.</p> <p>Where a sub-building contract provided that the materials should be furnished and the work performed under the direction and to the satisfaction of the architects, and, in order that their direction might be effectively exercised, declared that the subcontractor at all times must afford safe and proper facilities for inspection by the architects, the contractor, or their representatives, and that any improper material must be immediately removed, and unsatisfactory work made right, and that, if the subcontractor refused to remove or rectify, the contractor could terminate the contract and finish the same at the subcontractor’s expense, it was the duty of the architects and the contractor to object to material claimed to be defective as the work went on, and order the same removed, and hence, after the work had been completed, the owner was not entitled to make a deduction from the contract price for alleged unsatisfactory material and work.</p> <p>3. Same — Architects’ Certificate.</p> <p>Where a sub-building contract provided that the certificate of the contractor’s superintendent or of the architects should, be necessary before any installment should be paid while the work was going on, and that the final certificate should be conclusive evidence of the performance of the contract, such provisions did not make the production of a final certificate a condition precedent to the subcontractor’s right to recover on completion of the contract.</p> <p>4. Same — Performance of Contract — Question for Jury.</p> <p>Where a subcontract for' the furnishing of the marble work of an office building provided that the marble should be “Blanco P. Carrara” marble, and plaintiff’s witnesses testified that such marble was not pure white, but was marble of the character furnished, and that pure white marble was known as “Blanco Puro,” while the architects testified that by “Blanco P. Carrara” marble they meant to specify pure white marble, whether plaintiff had substantially complied with the contract was a question for the jury.</p> <p>Í3. See Contracts, vol. 11, Cent. Dig. §§ 1308, 1312.</p>

<p>L Master and Servant — Injuries to Servant — Negligence of Master-Pleading.</p> <p>Bates’ Ann. St. §§ 4364-89c, 4364-69, require factory owners to box all shafting operating near passageways, and to provide suitable seats for female employés when not necessarily engaged in active duties, etc. Plaintiff, who was employed in a factory, was injured by her skirts becoming entangled with an unboxed shaft projecting outside of the building near a window customarily used by the employés as a passageway and for a seat. Held, that a petition alleging such facts, and that defendant well knew that the window was customarily used as a passageway, and the dangerous character of the shaft, and that it negligently omitted to warn plaintiff of the danger from the shaft, and omitted to provide seats for employés, and that the custom of the employés to use the window as a seat was known to defendant, and that plaintiff did not know or apprehend any danger from the shaft by which she was injured, sufficiently stated a cause of action for defendant’s negligence.</p> <p>9. Same — Assumption of Risk.</p> <p>Where plaintiff in an action for injuries to a servant by a revolving shaft alleged that she was a young woman, unacquainted with machínery or the dangers to be apprehended therefrom to persons employed in the vicinity of the shaft, and that defendant had not warned plaintiff of the danger, the petition sufficiently negatived the defense of assumption of risk.</p> <p>S. Same — Contributory Negligence.</p> <p>Where plaintiff was injured by her skirts becoming caught on a rapidly revolving shaft under a window in which she was seated, and, in a petition to recover damages from such injuries, she alleged that she was unacquainted with the danger, and that it had been customary for her. and other employés, while resting, with defendant’s knowledge, to sit in the window, and that defendant had given no warning against the practice, the petition was not demurrable on the ground that the facts stated showed plaintiff guilty of contributory negligence, as a matter of law.</p>

<p>1. Insurance — Continuance of Policy — Contract—Comfletion.</p> <p>Where, after defendant had sent notice of cancellation of plaintiff’s policies for failure of plaintiff to pay premiums, defendant wrote plaintiff that if they still desired the policies to be again put in force they should send cheek for the full amount by return mail and plaintiff on the same day and before destruction of the buildings insured mailed his check for the premiums as requested, the contract to again put the policies in force became binding from the time plaintiff’s letter containing the check was posted.</p> <p>8. Same — Validity of Acceptance.</p> <p>Where an insurer offered to reinstate policies which had been canceled for failure of insured to pay premiums, provided insured would send cheek for the full amount of the premiums by return mail, and insured immediately sent the check, and had ample funds in the bank to meet the same before the check could have been presented in the ordinary course of the mails, the fact that at the time the check was sent insured’s bank account was overdrawn did not render the check insufficient to constitute an acceptance of insured’s offer.</p> <p>8. Same — Federal Courts — Jurisdiction—Determination—Circuit Court of Appeals.</p> <p>Where a case is removed from a state court to the United States Circuit Court and the jurisdiction is sustained, the question of jurisdiction cannot be reviewed on a writ of error to the Circuit Court of Appeals.</p> <p>If 3. Review of jurisdiction of circuit courts, see note to Excelsior Wooden-Pipe Co. v. Pacific Bridge Co., 48 C. C. A. 351.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>Writ of error by the defendant below to review a judgment rendered in favor of the plaintiff below in the Circuit Court for the Eastern District of New York.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, sentencing V. Clementine Harvey, plaintiff in error, to imprisonment upon a verdict of guilty, under section 3893, Rev. St. U. S. [U. S. Comp. St. 1901, p. 2658]. The indictment was for having “unlawfully, willfully, and knowingly deposited, and caused to be deposited, for mailing and delivery, in the post office of the United States, in the city of New York, certain unmailable matter, to wit, articles designed and intended for the prevention of conception and to procure abortion — that is to say, certain pellets inclosed in a pasteboard box.”</p>

<p>1. Appeal — Final Order — Directing Payments from Fund in Court.</p> <p>An order of a Circuit Court allowing its clerk a commission on a fund in the depository of the court, awaiting final decree in a pending cause, and directing the drawing of a check on said fund therefor, is a final order and appealable.</p> <p>2. Jurisdiction of Federal Courts — Transfer of Causes — Act Creating New District.</p> <p>The effect of section 7 of Act March 11, 1902, c. 183, 32 Stat. 64, 66 [U. S. Comp. St. Supp. 1903, pp, 66, 69], dividing the state of Texas into four federal judicial districts, which section transfers to the courts of the new Southern District jurisdiction over all pending causes of which they would have had jurisdiction if they had been instituted when such c¿uses were commenced, was to deprive the courts of the other districts of jurisdiction to make any further orders in such causes.</p> <p>If 1. Finality of judgments and decrees for purpose of review, see notes to Central Trust Co. of New York v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.</p>

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

<p>1. Appeal by One of Joint Defendants — Necessity of Notice to Codefendants.</p> <p>A separate appeal by a single party from a joint decree against him and others cannot be maintained without notice to the other defendants.</p> <p>H1. See Appeal and Error, vol. 2, Cent. Dig. § 2139.</p>

<p>1. Review on Error — Case Tried to Court.</p> <p>Where a jury was waived by stipulation in the Circuit Court, the finding of the court was general, and no bills of exceptions were taken to the rulings during the progress of the trial, the record presents no question for review by the appellate court.</p>

The plaintiff in error is a corporation created under the laws of New York. Prior to June 26, 1900, it was the owner of two certain patents for machines for seeding and processing raisins. Other persons and corporations at Fresno, Oal., engaged in the raisin-seeding business, owned certain other patents. Litigation had arisen between the owners of these patents.

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

<p>Appeal from the Circuit Court of the United States for the District of Vermont.</p> <p>This cause comes before this court on appeal from a decree granting an injunction against the infringement of complainant’s patent No. 548,149, granted October 15, 1895, to H. C. White for a stereoscope.</p>

<p>L Patents — Construction of License.</p> <p>A license executed by the owner of a number of patents granted to defendant the right to “make, use, sell, and practice for the regulation or control of dynamo electric machinery for the purpose, except respecting patent No. 478,344, of regulating or controlling electric motors of its own manufacture, * * * any of the inventions aforesaid.” Meld, that such license did not include the device of patent No. 478,344, especially in view of the fact that such construction was placed on the contract by both parties for a number of years.</p>

In Equity. Suit for infringement of letters patent No. 583,408, for automatic mechanism, for unloading and feeding sugar cane, granted to James Mallon May 25, 1897. On final hearing.

In Equity. Suit for infringement of letters patent No. 628,253, granted July 4, 1899, to Maurice D. Pendergast and James M. Whidden. On motion for preliminary injunction. The following is a copy of machine alleged to have been infringed:

<p>1. Constitutional Law — Exercise of Judicial Functions by Executive Officer — Determining Citizenship of Immigrant.</p> <p>Congress is without power, under the Constitution, to commit to the executive department of the government the right to determine finally the question of the citizenship of a person applying for admission into the United States; but under its power to exclude aliens it may 'properly commit the question in the first instance to the immigration officers, with plenary power to determine the facts on which citizenship depends, in doing which they act in a quasi judicial capacity, although not vested with any of the judicial power of the United States in a constitutional sense; and it is also competent to provide for an appeal from such decision to the head of an executive department, whose decision shall be final, and that if no appeal is taken the determination of the inferior officer' shall be final.</p> <p>2. Same.</p> <p>The Supreme Court of the United States has decided what facts must exist to constitute a Chinese person born within the United States a citizen thereof, and as the Department of Commerce and Labor is charged by the Constitution with the regulation of interstate and foreign commerce, including the coming of persons into the United States, Congress may devolve on the officers of that department the power to determine the existence or nonexistence of the facts on which the right to enter the United States depends. As such persons have a tribunal in which to be heard, a hearing on notice, with opportunity to present evidence, a judgment, and the right of appeal, all according to the law of the land, they are not denied due process of law.</p> <p>8. Chinese Exclusion — Determining Question of Citizenship — Conclusivenbss of Decision.</p> <p>Where Chinese persons applying for admission to the United States either make no claim to citizenship therein to the immigration inspector, or, if making such claim, fail or refuse to introduce any evidence in support thereof, the burden of which is cast upon them by the statute, the adverse decision of the inspector on their right to enter, if not appealed from, is conclusive, and they are not entitled to raise the question of citizenship in the courts by proceedings in habeas corpus.</p> <p>111. Citizenship of tbe 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>1. Aliens — Exclusion—Appeal—Hearing De Novo.</p> <p>On an appeal from an order of a United States commissioner excluding a Chinese alien to the United States District Court, the bearing is de novo, and not on the testimony taken before the commissioner.</p> <p>3. Same — Borden of Proof.</p> <p>Under Chinese Exclusion Act May 5, 1892, c. 60, § 3, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1320], providing that any Chinese person or person of Chinese descent arrested under the provisions of the act shall be adjudged to be unlawfully within the United States unless such person shall establish by affirmative proof to the satisfaction of the justice, judge, or commissioner, his lawful right to remain in the United States, the burden of proving that a person arrested as a Chinese alien not entitled to enter is a Chinese person or a person of Chinese descent is on the United States.</p> <p>8. Same — Method of Proof.</p> <p>Whether a person arrested for violating the Chinese exclusion act is a Chinese person should be proved by persons who have made a study of racial characteristics, so as to be capable of giving expert opinions with reference to the race of the accused.</p> <p>4. Same — Witnesses—Competency of Experts.</p> <p>A witness whose only information as to the racial characteristics of a Chinese person was derived from the reading of an unknown article in McClure’s Magazine and from the perusal of letters of a certain author in journals, together with his experience of three months as a government Chinese inspector, and from association with friends whom he designated as Chinese, was insufficient to entitle him to testify as an expert as to whether an accused was a Chinese person within the Chinese exclusion acts.</p> <p>5. Same.</p> <p>Where a witness had not read anything on the subject of racial distinctions, and his only experience with regard thereto was acquired in his position as Chinese inspector in charge, since 1902, the duties of which office consisted largely in directing subordinates, he was not competent to testify as an expert that accused was a Chinese person within the United States exclusion acts, though he had observed those whom he considered to be Chinese persons, and had been called on, as a part of his duties, to decide whether a person was a Chinese person or not.</p> <p>6. Same.</p> <p>Where a witness on cross-examination admitted that his only means of judging between a Chinaman, a Japanese person, or Korean was the method of arranging the hair and the language spoken, and that, if the queue was eliminated, and he did not hear the man speak, he could not tell a Chinaman from a Japanese or Korean, he was not entitled to testify as an expert as to whether accused, charged with violating the Chinese exclusion acts, was in fact a Chinese person.</p> <p>7. Same — Nature of Proceeding.</p> <p>A proceeding for the exclusion of an alleged Chinese person, in so far as the trial of the issue as to whether or not accused is a Chinese person is concerned, is to be regarded as criminal in its nature.</p> <p>8. Same — Confession.</p> <p>In a proceeding to exclude an alleged Chinese person from the United States, statements made by him, while in jail, to the officer who arrested him, without any admonition that what he might say would be used against him, and tending to show him to be a Chinese person, were inadmissible against him.</p> <p>2. Citizenship of Chinese, see notes to Gee Fook Sing, 1 C. C. A. 212; Dee Sing Far v. United States, 35 C. C. A. 332.</p> <p>9. Same.</p> <p>Statements made by an alleged Chinese alien that he was born in China, that his parents and grandparents were Chinese persons, were mere expressions of opinion, and unavailable as proof of his nationality against him.</p> <p>10. Same — Witnesses—Compelling Accused to Testify.</p> <p>In a proceeding for the exclusion of an alleged Chinese person the district attorney was not entitled to compel accused to take the stand and submit to an examination, or to answer a question as to whether or not he was a Chinese person, accused not being required to testify against himself.</p>

On Motion to Direct a Verdict. • The plaintiff was injured by a collision with a train of cars at a crossing of ' the defendant company’s tracks in the town of Fulton, Ky. He was in the employment of an express company, and driving an ordinary express wagon, when a slowly moving train of about four or five cars pushed against the wagon with such force as to upset the wagon and throw the plaintiff to the . ground.

<p>1. Equitable Assignments — Priority—Notice to Debtor.</p> <p>Orders given by a contractor for tbe payment of money due or to become due under his contract constitute equitable assignments of the fund, pro tanto, where given for a valuable consideration; and the right of priority as between different assignees depends upon the date of the notice given by the assignee to the debtor, and not upon the date of the orders, such notice being essential to perfect the claim of the assignee against the debtor.</p> <p>3. Same — What Constitutes Notice.</p> <p>A contractor for a city building made an order requesting the city comptroller to issue a warrant in favor of a bank, to be charged to his account, which he presented to the comptroller, who accepted it conditionally by an indorsement thereon. The contractor subsequently delivered such order to the bank, which advanced him money thereon. Held, that the presentation of the order to the comptroller by the contractor was not notice to the city of an equitable assignment of money due or to become due the contractor, since it had not at that time become effective, but that the date of the claim, as fixing its priority with respect to other assignees, was the date upon which notice was given to the comptroller by the bank of its ownership of the order.</p> <p>8. Mechanics’ Liens — Notice to Owner of Claim — New Jersey Statute.</p> <p>Under the New Jersey statute, the mere filing with the financial officer of a city of a claim for materials furnished to a contractor for a city building creates no lien upon the' money which may be due the contractor, and such officer is not thereby justified in withholding payment of tbé same longer iban tbe 90 days given the claimant within which to commence suit, and give notice thereof to the city.</p> <p>11. See Assignments, vol. 4, Cent. Dig. §§ 102, 149, 150.</p> <p>4. Execution — Levy on Fund — Lien Acquired.</p> <p>A levy of execution on the interest of the judgment debtor in money due from a city on a contract under the law of New Jersey creates a lien which takes priority of subsequent equitable assignments of the fund by the debtor.</p> <p>5. Attachment — Levy on Fund — Lien Acquired.</p> <p>An attachment of the interest of a defendant in a fund gives the creditor only such rights in the fund as the debtor has at the time of the levy, and is subject to equitable assignments previously made which were enforceable against the debtor, whether or not they had been perfected so as to be enforceable against the holder of the fund.</p>

<p>In Bankruptcy. Demurrer to petition.</p>

<p>t. Customs Duties — Classification — Antiseptic Preservative — Boracic Acid — Borax—Chemical Compounds — Unenumerated Articles.</p> <p>Held, that a certain antiseptic preservative, consisting of an intimate mechanical mixture of boracic acid and borax, the former being the more valuable component, is an article not enumerated in the tariff act of July 24, 1897, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626], either as “boracic acid,” under paragraph 1, Schedule A, § 1, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626], as “chemical compounds,” under paragraph 3, Schedule A, § 1, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1627], or as “borax” or “borate material,” under paragraph 11, Schedule A, § 1, c. 11, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1627], and is therefore subject to assessment at the same rate of duty as boracic acid, under said paragraph 1, by virtue of section 7 of said act, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], which prescribes that “on articles not enumerated, manufactured of two or more materials, the duty shall be assessed at the highest rate at which the same would be chargeable if composed wholly of the component material thereof of chief value.”</p>

<p>1. Bankruptcy — Federal Court — Jurisdiction—Title to Personalty — Adverse Claim.</p> <p>A Federal District Court, sitting in bankruptcy, has no jurisdiction to try title to personalty scheduled by the bankrupt as a part of his assets, as against a buyer claiming under an alleged executed sale thereof.</p> <p>3. Same — Preferred Claims — Proof—Surrender of Preference.</p> <p>Where a creditor of a bankrupt has received a preference he cannot prove his claim without surrendering the preference.</p> <p>If 2. See Bankruptcy, vol. 6, Cent. Dig. § 498.</p>

<p>Appeal from Judgment and Order of the United States Commissioner.</p> <p>Defendants were arrested at Ogdensburg, August 17, 1903, charged with a violation of the Chinese exclusion act. On the hearing before Hon. Ered J. Gray, United States Commissioner, at Ogdensburg, September 2, 1903, both defendants were represented by counsel, and each admitted himself to be a Chinese person, not of the exempt class, who had entered the United States from Canada. The commissioner found them not lawfully entitled to be or remain within the United States, and ordered them deported to the empire of China, from which judgment and order defendants appeal to this court.</p>

<p>Application for an Order Granting a New Trial.</p>

In Voluntary Bankruptcy. The following question has been certified by the referee to the court for decision: “Are the fees stipulated to be paid in a note due before the filing of a petition in bankruptcy, but placed in the hands of an attorney after the filing of the petition in bankruptcy, a claim absolutely owing and payable at the time of filing the petition in bankruptcy, and allowable as a part of such claim?” It appears from the record that on October 5, 1903, Keeton,…

<p>1. Bankruptcy — Notes—Attorney’s Fees — Claims.</p> <p>Where a note executed by a bankrupt contained a stipulation for the payment of 10 per cent, attorney’s fee if the note was collected by suit, and, though the note was due at the time the bankruptcy petition was filed, it was not placed in the hands of an attorney for collection until after the proceedings were instituted, the claim for attorney’s fees was not a fixed liability absolutely owing at the time the petition was filed, under Bankr. Act July 1, 1898, c. 541, § 63, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], and was therefore not allowable as a claim against the bankrupt’s estate.</p>

<p>1. Corporations — Actions by Receiver against Stockholders — Minnesota Statute.</p> <p>Under the decisions of the Supreme Court of Minnesota construing chapter 272, p. 315, Laws Minn. 3899, which authorizes a court to marshal the assets and ascertain the debts of an insolvent corporation, to levy an assessment upon its stockholders and to appoint a special receiver for its collection, which decisions are binding upon the federal courts, such act is applicable to corporations previously organized and to stockholders who became such prior to its passage. Nor is the act, as so applied, in contravention of the Constitution of the United States.</p> <p>2. Same — Defenses.</p> <p>In an action against a stockholder of an insolvent Minnesota corporation, brought by a receiver appointed under the state statute to collect an assessment levied by a court in proceedings instituted thereunder, it is not open to the defendant to deny the sufficiency of the debts of the corporation to require such assessment.</p> <p>3. Same — Set-Off—Claims against Corporation.</p> <p>In an action by the receiver of an insolvent Minnesota corporation to enforce his statutory double liability for the benefit of the corporation’s creditors, the defendant cannot set off an indebtedness due from the corporation to him against the assessment made, which would result in making him a preferred creditor, contrary to the purpose and intention of the state law.</p> <p>H 3. See Corporations, vol. 12, Cent. Dig. § 1009.</p>

<p>L Garnishment — Allowance of Counsel Fees to Garnishee — Pennsylvania Statute.</p> <p>Under Act Pa. April 22, 1863 (P. L. 527), providing that a garnishee who shall be found not to have any property of defendant, nor to owe him any debt, other than is admitted in his answer, shall be entitled to the allowance of a reasonable counsel fee out of the property in his hands, a corporation garnished as trustee, which by its answer fully and truthfully set out all the facts, and admitted having in its possession a certain sum, which it held for defendant as income from the trust fund, but denied plaintiff’s right to the principal of such fund, is entitled to the - allowance of a counsel fee from such income for successfully contesting plaintiff's claim to the principal.</p>

<p>1. Collision — Measure of Damages — Superintendence of Repairs.</p> <p>Where the master of a barge injured in collision was also the owner, no allowance will be made for his tíme in superintending the repairs, in addition to the demurrage allowed for loss of earnings of the vessel.</p> <p>2. Same — Allowance for Permanent Injury.</p> <p>Where a vessel suffered permanent injury from a collision, of such character that it cannot be repaired at a reasonable cost, an allowance may properly be made therefor as an item of damages in addition to the cost of the repairs made.</p> <p>51. See Collision, vol. 10, Cent Dig. § 288.</p>

<p>1. Banks and Banking — Collection of Drafts — Measure of Duty — Ordinary Care.</p> <p>Where drafts are sent from one bank to another for collection and remittance, the measure of duty of the collecting bank is the exercise of ordinary care and reasonable diligence.</p> <p>2. Same — Evidence.</p> <p>Plaintiff mailed to defendant bank for collection on July 1st two drafts, amounting to $1,425.50, on S. Bros. Co., who were in good credit. On July 3d three more drafts, aggregating $1,622.41, and on July 5th other drafts amounting to $2,757.85, were drawn on the same company. The drafts were received by defendant, respectively, on July 5th, 7th, and 9th, with directions to collect and remit without protest. The drafts were presented on the days they were received, and the drawees on each occasion stated that they would pay the drafts as soon as they could verify the amounts from the invoices for which the drafts had been drawn, and requested that the drafts be held until such verification could be made. On July 9th plaintiff requested defendant to inform it whether the drafts had been paid, and on the same day defendant answered by telegram that one of the drafts had been paid that day, and that the others would be paid in a few days. On July 10th plaintiff telegraphed defendant to return the drafts if' not paid that day, which was accordingly done. Before July 9th plaintiff had permitted the drawers to overdraw their account $3,000, and, after receiving the telegram of July 9th, permitted a further overdraft of $2,000; and, by reason of the nonpayment of the drafts, plaintiff lost by such overdraft an amount not exceeding $2,000. HeM, that plaintiff’s loss was not chargeable to defendant’s alleged negligence in failing to promptly return the drafts after presentation and nonpayment.</p> <p>if 1. See Banks and Banking, vol. 6, Cent. Dig. § 598.</p>

<p>1. Customs Duties — Classification—Gad uol — Chemical Compounds — Alcoholic Medicinal Preparations.</p> <p>Gaduol, an alcoholic extract of cod liver oil, which is unsuited in its imported state to be used as a medicine, but is intended for such use after preparation in the form of an emulsion by the manufacturer, is not dutiable under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631], for “medicinal preparations containing alcohol, or in the preparation of which alcohol is used,” but is dutiable under paragraph 3 of said act, relating to “chemical compounds.”</p>

_ On application by Eimer & Amend, importers, to review the decision of the Board of General Appraisers, which affirmed the decision of the collector of customs at the port of New York. The merchandise in question was all classified, either as etched glassware or as blown glassware, under Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 100, 30 Stat. 157 [U. S. Comp.

<p>L Bankruptcy — Proceeds of Liquor License — Bights of Mortgagee.</p> <p>The police commissioners of the city of Boston having uniformly by their acts refused to recognize a mortgage of a liquor license as against public policy, but having permitted the sale of such licenses by trustees in bankruptcy for the benefit of the general creditors of the bankrupt licensee, by allowing the trustee to nominate his successor, a court of bankruptcy will not recognize and enforce the claim of a mortgagee of such a license to the proceeds thereof when sold by a trustee, on the ground that such enforcement would be contrary to the policy of the police commission, without whose consent and co-operation it would be powerless to realize anything from such asset of a bankrupt.</p> <p>1Í1. Franchises and licenses as assets in bankruptcy, see note to Fisher v. Cushman, 43 C. C. A. 389.</p>

On application by the importers, A. Steinhardt & Bro., to review a decision (G. A. 5251) of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York.

<p>1. Telegraphs — Death Messages — Delay—Mental Anguish — Actions.</p> <p>An action against a telegraph company for delay in delivering a death message cannot be maintained for the recovery of damages consisting of mental anguish alone, either under Acts Va. 1899-1900, p. 724, providing for the recovery of damages for delay in the delivery of telegraph messages, or independent of such act.</p> <p>2. Same — Damages—Certainty.</p> <p>In an action for delay in delivering a telegram announcing the death of plaintiff’s father, plaintiff could not recover expenses incurred in making a trip to attend the funeral when it was too late, he having been otherwise advised of his father’s death, which he would not have incurred^ had the telegram been delivered, such damages being too uncertain and' problematical.</p> <p>IT 1. Damages for mental suffering from delay in delivering telegram, see notes to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 571; Western Union Tel. Co. v. Coggin, 15 C. C. A. 250; Same v. Morris, 28 C. C. A. 62.</p>

<p>Appeal by Importers from the Decision of the Board of General Appraisers.</p> <p>Note G. A. 1986 and 3132.</p>

<p>Appeal by the Importers from a decision (G. A. 5130) of the Board of United States General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York.</p>

<p>In Admiralty. On petition for rehearing.</p>

<p>1. Removal of Causes — Diversity of Citizenship — Nominal Parties.</p> <p>Where the only relief prayed for by complainants in a suit in equity was the cancellation of certain deeds through which a defendant claimed title to lands, or that he be decreed to hold the title in trust for complainants, the sole controversy was between complainants and such defendant, and, where there was the requisite diversity of citizenship between them, a removal of the cause was not prevented by the joinder of other nominal defendants, who, as shown by the pleadings, had no interest in the lands.</p> <p>2. Same — Motion to Remand — Review on Appeal.</p> <p>The action of the trial court in overruling a motion to remand made by the removing defendant will not be reviewed by the appellate court on the ground that the evidence showed that another defendant,' who was a citizen of the same state as complainants, was an indispensable party to the controversy, where the evidence is not in the record, and the bill and petition for removal showed the cause to be removable.</p> <p>3. Circuit Court of Appeals — Jurisdiction—Jurisdictional Questions.</p> <p>Where a party, defeated in the Circuit Court, elects to appeal the whole case to the Circuit Court of Appeals, and does so, assigning errors relating to the jurisdiction of the Circuit Court, and also on the merits, the Circuit Court of Appeals has jurisdiction, and may certify the jurisdictional question involved, or decide it, although the other assignments of error are abandoned.</p> <p>IT 1. See Removal of Causes, vol. 42, Cent. Dig. § 70.</p>

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

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

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

This is a motion to dismiss a writ of error, and affirm the judgment of the Circuit Court, Southern District of New York, on the ground that the bill of exceptions was not presented, allowed, signed,, or filed within the term at which the judgment was entered.

This is a bill to restrain infringement of letters patent No. 332,393, granted 0. and A. Potts, July 14, 1885, and letters patent, No. 369,898, granted to same parties August 23, 1897. Both patents are for improvements in clay disintegrators.

<p>1. Patents — Infringement—Silos.</p> <p>The Harder patent, No. 627,732, for improvements in silos having a continuous opening -from top to bottom, claim 4, which covers broadly braces between the edges of the walls forming the opening, door sections for closing the opening, and reinforcing strips for the door sections, is not limited to the special form of braces and strips described and shown in the specification and drawings, but is entitled to a reasonable application of the doctrine of equivalents, and as so construed is infringed by the structure of the Schlichter patent, No. 653,967.</p>

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

<p>1. Injury to Servant — Negligence—Assumption op Risk — Contributory Negligence — Distinct Depenses.</p> <p>Assumption of risk and contributory negligence are distinct and separate defenses. The former rests in contract, the latter in tort</p> <p>2. Same — Assumption op Risk not Based on Contributory Negligence.</p> <p>The defense of assumption of risk is not conditioned or limited by the existence of contributory negligence, and the latter is not an element or attribute of it.</p> <p>Assumption of risk is alike available whether the risk assumed is great or small, whether the danger from it was imminent and certain or remote and improbable, and whether or not the servant was guilty of contributory negligence in assuming the risk or in exposing himself to the danger.</p> <p>8. Same — General Doctrine.</p> <p>A servant, by entering or continuing in the employment of a master, without complaint, assumes the risks and dangers of the employment which he knows and appreciates and those which an ordinarily prudent and careful person of his capacity and intelligence would have known and appreciated in his situation.</p> <p>4 Same — Estoppel.</p> <p>An employs cannot be heard to say that he did not appreciate or realize the danger where the defects were obvious and the dangers would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.</p> <p>5. Same — Defects and Dangers.</p> <p>A servant, by continuing in the employment without complaint, assumes the risks of the defects and dangers which arise during the service, to the same extent that he assumes those which existed when he entered the employment.</p> <p>6. Same — Defects Arising from Negligence of Master.</p> <p>Among the risks and dangers which the servant assumes by entering or continuing in the employment without notifying his master of them, are those which arise from the failure of the master to completely discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and reasonably safe appliances to use.</p> <p>1T1. Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p> <p>7. Same — Factory Act of Missouri — Effect.</p> <p>The factory act of Missouri (2 Rev. St. 1899, § 6433), which requires gearing and belting to be guarded, does not abolish the defense of assumption of risk. It does not deprive parties of their right to contract concerning the risks of their avocations.</p> <p>8. Same — Peremptory Instruction.</p> <p>Where the uncontradicted evidence discloses the fact that the defect in the place or machinery was obvious, and the danger from it apparent to an ordinarily prudent person of the intelligence and capacity of the servant, and that the servant entered .upon or continued in the service without complaint of it, the defense of assumption of risk is conclusively established, there is no question for a jury, and the court should instruct them to return a verdict for the master.</p> <p>9. Facts — Errors.</p> <p>A young woman 20 years of age was injured by slipping her fingers into the mashing cogs of gearing in a factory where she had worked more than six months, and where she had been frequently called upon to operate, for 10 or 15 minutes at a time, the forming machine which she was tending when she was injured. In stopping and starting the machine she moved the greasy handle of a lever from a point eight inches from the exposed cogs to a point five or six inches from them, and then back again. When she commenced to work at this machine the cogs were covered, but they had been uncovered for six weeks before her injury, she had been aware of this fact, and she had continued to operate the lever for, 10 or 15 minutes each day during the six weeks after the cogs were exposed, when her hand slipped from the lever between the cogs, and her fingers were injured. The court refused to instruct the jury to return a verdict for the defendant, and charged them that the servant did not assume the risk of the exposed machinery unless the danger from it was so imminent that no ordinarily prudent person would have incurred it.</p> <p>Held: (1) The defense of assumption of risk was not conditioned by the imminence of the danger; and (2) the defect of the exposed gearing was obvious and the danger apparent, and the court should have instructed the jury that the servant could not recover.</p> <p>(Syllabus by the Court.)</p> <p>IT 7. See Master and Servant, vol. 34, Cent. Dig. § 545.</p>

<p>1. Injury to Servant — Negligence—Duty of Master.</p> <p>The master is not required to supply the best, newest, or safest appliances to secure the safety of his servants, nor is he bound to insure the safety of the place or of the machinery he furnishes. His duty is discharged if he exercises ordinary care to furnish a place and appliances reasonably safe and suitable for the use of his employés.</p> <p>2. Same — Factory Act — Assumption of Risk.</p> <p>The factory act of Minnesota (Gen. St. 1894, § 2248), which requires employers to guard or fence dangerous machinery as far as practicable, does not abolish the defense of assumption of risk. It does not deprive parties of the right to contract regarding the risks of their avocations.</p> <p>V1. See Master and Servant, vol. 34, Cent. Dig. §§ 172, 173, 181, 182.</p> <p>3. Same — Assumption of Risk.</p> <p>A servant, by entering or continuing in the employment of a master without complaint, assumes the risks and dangers of the service which he knows and appreciates, and those which an ordinarily prudent person of his capacity and intelligence would have known and appreciated in his situation, including the risks and dangers which arise from the failure of a master to fully discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work, and reasonably safe appliances to use.</p> <p>4. Same — Estoppel to Deny Appreciation of Open Dangers.</p> <p>An employé cannot be heard to say that he did not appreciate or realize the danger, where the defects were obvious, and the dangers would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.</p> <p>A Trial — Peremptory Instruction — Assumption of Risk.</p> <p>Where the uncontradicted evidence discloses the fact that the defects in the place or in the tools were obvious, and the danger from them apparent to an ordinarily prudent person of the experience and capacity of the servant, when placed in his situation, and the employé entered upon or continued in the service without complaint, the defense of assumption of risk is conclusively established, and the court should instruct the jury to return a verdict for the defendant.</p> <p>6 Injury to Employe — Evidence.</p> <p>A young man, 20 years of age, who had worked around sawmills for some months, and had used a cant hook 6 days, stood upon a bumper 18 inches high, composed of a timber 12 by 12, and 12 feet long, and a timber 6 by 12, and from 6 to 10 feet long, placed upon it so that it would present a face of 6 inches, took hold of a log lying upon an inclined deck by the' side of the bumper with a cant hook, lifted, his cant hook slipped, and he fell forward onto the carriage of a sawmill, and was borne against the saw, so that his hand was injured. The saw was boxed, with the exception of the space requisite for the' movement of logs against it which were to be sawed. There was no post at the lower end of the bumper for the workman to steady himself against, as there was in some other mills. The bumper was somewhat shaky, and the cant hook was loose in the socket. The plaintiff sought to recover damages on account of these defects. They were open and visible, and he testified that he was aware of them all, but that he did not realize the danger.</p> <p>EeM, the defects were obvious, and the dangers so apparent to an ordinarily prudent person of his intelligence and ability that by continuing in the employment five days he assumed the risk of these defects and dangers, and that the court should have instructed the jury to return a verdict for the defendant.</p> <p><Syllabus by the Court.)</p>

<p>L Infringement of Patent — Bill.</p> <p>In a bill of complaint charging infringement of letters patent, the averment of infringement under the form “your orator further shows on information and belief, that” &c. is sufficient as matter of pleading; the fact of infringement not being necessarily within the knowledge of the complainant.</p> <p>(Syllabus by the Court.)</p> <p>1T1. Pleading in patent infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p>

<p>1. Patents — Validity—Joint Patent foe Separate Inventions</p> <p>Two persons cannot obtain a valid joint patent for different improvements on tbe same machine, invented by each separately, without the participation and knowledge of the other.</p> <p>2. Same — Cream Separators</p> <p>The Mélotte & Reuther patent, No. 521,722, for improvements in cream separators, is void as covering separate inventions of the joint patentees.</p> <p>If 1. See Patents, vol. 38, Cent. Dig. § 124.</p>

<p>In Equity. Suit for infringement of letters patent No. 358,604, for furnace protecting, granted to Gordon,. Strobel & Raureau March 1, 1867.. On final hearing.</p>

<p>1. Patents — Accounting fob Infringement — Profits.</p> <p>On an accounting, in a suit for infringement of a patent for a machine, complainant is not entitled to an allowance for profits on parts furnished by defendants to replace those of machines previously sold, and for which it does not appear that any charge was made.</p> <p>IT 1. Accounting for profits by infringer of patent, see note to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8.</p> <p>See Patents, vol. 38, Cent. Dig. § 570.</p>

<p>1. Patents — Violation op Injunction against Infringement — Contempt.</p> <p>Defendants, enjoined from infringement of a patent, cannot be absolved from tbe charge of contempt in violating the injunction, on the ground that the subsequent infringement was not obvious, and that they proceeded under advice of counsel, where they also proceeded with full notice, and knowingly assumed the risk of violating the injunction.</p>

<p>1. Bills and Notes — Negotiability—Federal Courts — Following State Laws.</p> <p>The negotiability of a note is a question pertaining to the law mer- ■ chant, with regard to which federal courts are not bound by local decisions, unless predicated on a special statutory enactment defining the elements of a negotiable instrument.</p> <p>2. Same — Stipulations in Note.</p> <p>Where a note was executed in Missouri, the fact that it provided that it should be paid at the office of the payees in Kansas City, Mo., did not render the note subject to the rulings of the Missouri courts as to its negotiability in an action thereon in the federal courts sitting in Missouri, in the absence of express legislation limiting the negotiability of such instruments.</p> <p>3. Same — Title Mortgages — 1Transfer—Stipulations.</p> <p>Where, in an action on a cattle note, it was agreed that plaintiff became the owner and holder for value of the note and mortgage, and on the back of the note was an indorsement that the mortgage securing it bore the amount of revenue stamps required by law duly canceled, which indorsement was signed by the payees, such stipulation and memorandum sufficiently indicated an intent to pass the mortgage as a part of the assignment of the note, without regard to the latter’s negotiability.</p> <p>4. Same — Chattel Mortgages — Animals—Description.</p> <p>A chattel mortgage on cattle, describing them as 300 head of native territory and Texas four and five year old steers, was not objectionable for failure to distinguish between the territory and Texas steers, it being proved that the only principal difference between the two classes was that generally Texas cattle had long horns, while territory cattle sometimes had long horns and sometimes not.</p> <p>5. Same.</p> <p>Where a chattel mortgage on cattle described them as 300 head of steers, “all branded P on the left hip and Pm on the left side,” in the mortgagor’s pasture, about 10 miles southwest of V., in the Cherokee Nation, Ind. T., and the evidence showed that cattle answering such descriptive brands and ages were in the pasture at that .time, and that the pasture contained no other cattle, the description was sufficient.</p> <p>6. Same.</p> <p>Where, in an action founded on a chattel mortgage on cattle, defendant offered prior mortgages claimed to have been given on the same cattle, but the description therein did not state the county, territory, or state where the cattle mortgaged were located, nor attempt to segregate the cattle covered by plaintiff’s mortgage from the larger number attempted to be described in the mortgages offered, and the brands described were not the same, the mortgages were properly excluded.</p> <p>1Í1. State laws as rules of decision in federal courts, see notes to Griffin v. Overman Wheel Co., 9 C. C. A, 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>See Courts, vol. 13, Cent. Dig. § 979.</p> <p>7. Same — Mortgages—Construction.</p> <p>Where a memorandum on the hack of a chattel mortgage on cattle recited that the cattle were to he fed by the mortgagor during the term of the mortgage, and that at least three days before the maturity of the note secured thereby they should be shipped and consigned to the mortgagees, and when sold by them the proceeds should be applied, first, to the payment of the mortgagees’ commissions, and the balance, or so much as necessary, to the satisfaction of the indebtedness, etc., but that if the cattle were not consigned to the mortgagees or sold by them the mortgagor should pay a commission of 50 cents a head, such agreement did not constitute the mortgagees the agents of an assignee of the note and mortgage for the purpose of selling the cattle for the assignee’s benefit.</p> <p>8. Same — Conversion.</p> <p>Where a mortgage on cattle provided that until default the mortgagor should keep the cattle in a particular place and take care of them at his proper cost and expense, and that in case of sale or attempt to sell or dispose of the same it should be lawful for the mortgagee or his assigns to take possession of and sell the cattle, and thereafter the mortgagees assigned the note and mortgage to plaintiff, and before the maturity thereof the mortgagors shipped the cattle to the mortgagees, by whom they were sold to defendant, who had constructive notice of the mortgage, defendant’s purchase thereof constituted a conversion as against plaintiff.</p>

The plaintiff seeks to recover in this action damages alleged to have been sustained by it by reason of the breach of a contract entered into between it and the defendant for the sale and delivery of a lot of brick. Among the defenses set up by the answer is a plea of former adjudication.

<p>1. Specific Performance — Contracts Enforceable — Equity Jurisdiction.</p> <p>A court of equity has jurisdiction of a suit to compel the specific performance by a corporation of a contract to deliver a specified amount of its capital stock in payment for work which gave to such stock its only value, and where the entire capital stock is small, and presumably has no general market value; nor is such jurisdiction lost by the fact that after the filing of the bill the stock is sold by defendant to others, but will be retained to determine and award complainant compensation therefor.</p> <p>2. Equity Jurisdiction — Waiver of Objection.</p> <p>A defendant; by answering to the merits of a bill and going to hearing without objection, waives the right to object that the suit is not cognizable in equity, where the subject-matter is within general equitable jurisdiction.</p> <p>8. Contracts — Performance—Estoppel.</p> <p>A corporation which contracted with another for the construction by the latter of an electric railway line, to be completed within a stated time, agreeing to procure the right of way, is estopped to insist on the time limit in defense to an action for the contract price, or that the work was not fully completed, where the delay was in large part, and the n(^completion entirely, due to its own default in failing to procure right of way.</p> <p>4. Same — Damages for Breach.</p> <p>Where complainant contracted to build an electric railway line for defendant, which agreed to procure the right of way, and represented that it had done so, but in fact failed to obtain a right of way over certain parts of the line, by reason of which it could not be completed to the full length contemplated by the contract, complainant was entitled to recover the direct profits it was prevented from earning under the contract by such default of defendant.</p> <p>IT 2. See Equity, vol. 19, Cent. Dig. § 120.</p>

<p>1. Collision — Steam Vessels Meeting — Negligent Change oe Course.</p> <p>The steamer Thomas Wilson, leaving Duluth, and the steamer George G. Hadley, coming in, were approaching each other in the daytime, port to port, on nearly parallel but slightly diverging courses, sufficiently far apart to involve no danger of collision if maintained. When 1,500 feet apart, the master of the Hadley, having received instructions from a tug to proceed to a different port, ordered the helm hard astarboard. The master of the Wilson, observing the change of course, and supposing the Hadley to be sheering, at once put his helm aport, and afterwards hard aport, maintaining his speed until his vessel was struck on the port side by the Hadley and sunk. Each vessel was going at a speed of about 11 or 12 miles, and no signal was given by either until they were within 900 feet, and approaching each other, when the Hadley gave a signal of two whistles, which was not answered, and she then reversed, but made no change in course. Held, that the Hadley was solely in fault; that, in view of the original courses, no signal was required from the Wilson by the rules; that she was prudently navigated, and was not in fault for failing to answer the Hadley’s signal, because she could not then have avoided collision, and also because she acted in extremis.</p> <p>2. Same — Damages—Death op Seamen.</p> <p>Damages awarded against the vessel in fault for a collision in Lake . Superior for the death of seamen under the rule of the Minnesota Supreme Court.</p>

<p>At Law. On motion of. defendant for judgment non obstante veredicto.</p>

<p>1. Trade Marks — Extent of Monopoly Conferred — Infringement.</p> <p>The representation of a horse on packages containing a salve used to cure galls or abrasions of the skin of horses and cattle is generic in character, and the registration of such a representation as a trade-mark cannot give a monopoly of the right, and exclude others from using any representation of a horse on medicine of the same character, but the exclusive right is limited to the representation of a horse of the same or substantially similar appearance, style, or position.</p> <p>2. Same.</p> <p>The term “Gall Cure” is descriptive of a medicine, and cannot be monopolized as a trade-mark, standing alone, and when used as such in connection with a picture is not infringed by the use of the words as a part of the name of another remedy in connection with another and distinctive picture.</p> <p>3. Same.</p> <p>The words, “Be Sure and Work the Horse,” standing alone, cannot be appropriated as a trade-mark for a gall cure where it is shown that they are directive, and also descriptive of the characteristics of a class of remedies which are more effective when such direction is followed. And a trade-mark in which such words are combined with a picture is not infringed by their use by another unless in connection with a similar picture.</p> <p>4. Same — Unfair Competition — Imitation of Packages.</p> <p>The boxes, cartons, and labels used by complainant and defendants for packing the remedies for galls on horses and cattle, made and sold by the parties, respectively, compared, and held to show no greater similarity than would-naturally exist in view of the similarity of the remedies, and not to render defendants chargeable with unfair-competition by imitating complainant’s packages.</p> <p>if 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>if 4. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1 Customs Duties — Classification—Printing Paper.</p> <p>Eeld, that the provision in Tariff Act July 24, 1897, c. 11, $ 1, Schedule M, par. 396, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1671], for “printing paper * * * suitable for books and newspapers,” is not limited to such paper as is suitable for printing both books and newspapers, and that certain paper used for printing covers of booklets, pamphlets, and the like, but not suitable for printing newspapers, is properly classifiable for duty under said provision, rather than under paragraph 402 of said act (30 Stat. 189 [U. S. Comp. St. 1901, p. 1672]), covering “all other paper not specially provided for.”</p>

<p>1. Customs Duties — Timeliness oe Peotest.</p> <p>At the time of the original liquidation of duty on an importation of merchandise, the importers failed to protest against the exaction of duty on certain charges; but later, on the reliquidation of the entry solely to include a damage allowance, they filed a protest against the duty on the charges, which had not been affected in any way by the reliquidation. Held, that the protest was within the requirement of section 2931, Rev. St. U. S., that protests against excessive exactions of duty shall be filed “within ten days after the ascertainment and liquidation of the duties.”</p>

<p>Appeal by the Importers from a Decision (G. A. 4946) of the Board of United States General Appraisers.</p>

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

At Law. In November, 1902, Salin Ghazel & Co., of New York, ordered from H. Poulin-Latouche, of France, 150 gross of horn combs to be paid for in cash on delivery, the shipper to draw at sight. The bill of lading was to accompany the bill of exchange and to be delivered to Ghazel & Co. on payment.

<p>1. Customs Duties — Classification—Enamel Paint</p> <p>Held, that certain so-called enamel paint, consisting of a white paint containing zinc, but not containing lead, ground in linseed oil, varnish being added to give a gloss, but without affecting the character of the mixture as a paint, is more specifically enumerated under the provision in paragraph 57, Tariff act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1630], for “white paint or pigment containing zinc, but not containing lead,” than under the provision in paragraph 53 of said' act, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1630], for “varnishes,” or that in paragraph 58 of said' act, 30 Stat. 154 [Ú. S. Comp. St. 1901, p. 1630], for “all paints, * * * whether crude or dry or mixed, or ground with water or oil or with solutions other than oil, not otherwise specially provided for.”</p>

<p>1. Partnership — Receivers—Discretion.</p> <p>Where the appointment of a receiver to take charge of the funds to be derived from a partnership adventure would involve damage to both parties, which could easily be avoided by the defendant giving bond to comply with a judgment of the court in an action for an accounting between the parties, the court, in its discretion, will refuse to appoint such receiver on the execution of such bond.</p> <p>2. Same — Power of Court.</p> <p>In an action for an accounting between partners engaged in a joint adventure, the court has power to take a common-law bond from the defendant to secure its compliance with the judgment ultimately to be rendered, in order to obviate the necessity of the appointment of a receiver.</p> <p>8. Same — Interest—Estoppel.</p> <p>Where, in an action for an accounting between partners, the court required defendant to g-ive a bond to obviate the appointment of a receiver, the giving of the bond operated to estop defendant to dispute the right of the court to require it to pay interest on all moneys belonging to partnership while in defendant’s hands.</p> <p>4. Same — Payments.</p> <p>Where suit was brought for an accounting between members of a firm engaged in the construction of a railroad, and the court required defendant to give a bond to obviate the appointment of a receiver, subsequent payments by defendant to subcontractors, etc., were made at its peril, unless directed by order of a court of competent jurisdiction after notice to complainants, and an opportunity to them to defend the suit.</p>

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

<p>In Bankruptcy.</p>

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

<p>In Admiralty. Action for wrongful death. On exceptions to libel.</p>

This suit was brought in the United States Circuit Court for the District of Washington on March 15,1897, by the appellant, a British corporation, against Dexter Horton & Co., Bankers, a corporation organized under' the laws of the state of Washington, and other lienholders, for a foreclosure of all of the appellees’ right, title, lien, and equity of redemption in and to certain lands in the state of Washington. An amended bill of complaint was filed August 1, 1898.

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

The plaintiff in error, Austin B. Fletcher, brought this suit by petition in the court of common pleas of Lucas county, Ohio, for the benefit of himself and the general creditors and stockholders of the Toledo, Ann- Arbor & North Michigan Railway Company, and of all the bondholders of said company who did not participate in a certain reorganization scheme of said company, mentioned in said petition, against Wellington R. Burt, who had been receiver in a consolidated cause…

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>The bill in this case was filed by the appellee, who claims certain rights as assignee of two leases .given by Noah Conrad and Anna E. Sheets, respectively, on May 4, 1898, to one Carr, conferring the exclusive right to operate on the lands described therein for gas and oil, against the appellant, who claims, as assignee, similar rights under leases executed by the same lessors on April 12, 1894, to the Fairfield Gas & Oil Company, which last-mentioned leases, as the bill states, had been abandoned by the appellant at the time when the leases under which the appellee claims were executed. The bill alleges that the appellee took possession of said lands, and that the appellant has since invaded the possession under claim of right acquired by its said leases, and is erecting a derrick and beginning a well for the purpose of taking the oil and gas in said lands, and intends to prosecute its said purpose. The relief prayed is that the appellant may be enjoined from further acts of trespass, and that the cloud upon the appellee’s title created by the appellant’s claims under the earlier leases may be removed. The appellant answered the bill denying that its said leases had been abandoned, claiming them to be in full force, denying that the appellee had at any time been in possession of the lands, but admitting that the appellant had taken possession and was preparing and intending to operate thereon for taking the oil and gas, justifying itself under its leases. The bill was sustained at the hearing upon the pleadings and proofs in the Circuit Court, the presiding judge being of opinion that the lessee in the leases of 1894 had forfeited its claims thereunder by neglecting for so long a time to enter upon the performance of Its own obligations under it, and a decree was entered granting the relief prayed.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Georgia.

<p>1. Quieting Title — Jurisdictional Allegations — Possession.</p> <p>Equity has jurisdiction of a bill to remove a cloud upon the title to real estate where both the legal title and possession in complainant are shown by the bill; but the requisite possession is negatived where it appears from the bill that defendants, with complainant’s consent, drilled, producing oil wells on the land in compliance with the terms of the lease, which is alleged to constitute the cloud on complainant’s title, and that they are in possession of such wells, and producing oil therefrom, having their own casing, tools, and machinery on the land.</p> <p>2. Oil Leases — Remedy of Lessor for Breach — Equity Jurisdiction.</p> <p>After the leasehold estate of a lessee, under an oil and gas lease providing for the development of the land and the operation of any producing wells obtained on a royalty basis, has vested by the completion of paying wells, and he is still in possession of the same, producing oil therefrom, if he fails to fully develop the land or protect its lines the lessor’s remedy is not by a suit in equity for a forfeiture of the lease, but by an action for damages for its breach.</p> <p>8. Same — Forfeiture.</p> <p>In all oil and gas leases a covenant to “protect the lines” and to “well develop” the land is implied, and the fact that such covenants are expressed in the same general words adds nothing to the lessee’s obligation, and the lease cannot be forfeited for a breach of such covenants where he has in good faith done what in his judgment was required to comply therewith.</p> <p>4. Same — Construction of Covenants.</p> <p>A covenant in an oil lease to drill one well every two months after oil is produced until the land is well developed is complied with where the required number of wells bave been drilled, although not at regular intervals of two months, and a court of equity will not decree a forfeiture because of such fact, especially where the lessor made no objection on that ground when they were being drilled.</p> <p>6. Same — Abandonment.</p> <p>A court will not decree a forfeiture of an oil lease on the ground that the lessee has abandoned development of the land, where up to the time of the filing of the bill he has drilled the full number of wells specifically required by the lease, and is still in possession of and operating the same.</p>

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

<p>1. Patents — Infringement—Identity of Principle of Operation.</p> <p>A structure may be within the terms of the claims of a patent and still not an infringement, unless the principle of the two devices is substantially identical.</p> <p>2. Same — Computing Scales.</p> <p>The Pitrat patent, No. 385,005, for improvements in weighing and price scales, of the type in which the connecting rod between the platform and the price-indicating member of the beam, including the head-block, remains stationary, while the beam is moved laterally through the head-block, when limited, ..s it must be to sustain its validity in view of the prior art, to the specific construction shown, is not infringed by scales of the type in which the beam is retained rigidly in place while the head-block and connecting rod are shifted laterally to reach the proper place on the price-beam. The Ozias patent, No. 316,348, the Sanderson and Ozias patent, No. 451,075, and the Culmer patent, No. 486,663, all for improvements on computing scales of the same type as that of the Pitrat patent, construed and held not infringed. The Mellinger reissued patent, No. 11,738, also for improvements in scales of the same character, held, void for anticipation as to claims 1 and 4, and not infringed as to claims 2, 9, 10, and 11.</p> <p>8. Same — Contributory Infringement.</p> <p>One who makes and sells a machine having peculiar provision for the intended incorporation therein of a valid patented device is liable as a contributory infringer, if the expected incorporation is thereafter made by another; but, if his machine is equally adapted to the use of other devices known to the art, he is not liable, if another of his own volition incorporates that of the patent.</p>

<p>1. Patents — Handhold on Oar Seats — Anticipation.</p> <p>Davis patent, No. 648,927, relating to certain improvements in the backs of ear-seats by the addition of a handhold from the cut-out corner of the seat, intended for the use of passengers compelled to stand in the aisle, held not anticipated by McKelvey and Van Beek patent, No. 363,661; Gilfillan patent, No. 436,829; Gilfillan and Emmert patent, No. 421,356; or Stevenson reissued patent, No. 6,429.</p> <p>2. Same.</p> <p>Where it was claimed that Davis patent, No. 648,927, for handhold on car-seats, was anticipated by Hale patent, No. 626,831, but the patentee testified that before the issuance of the patent to Davis his partner disclosed such handhold to witness, and that witness immediately took steps to put it into commercial use, and the Hale patent made no claim for the seat-back or the handle, which was merely shown in one of the specifications thereof, the Davis patent thereon subsequently issued was not anticipated by the Hale patent.</p> <p>3. Same — Patentable Novelty.</p> <p>Davis patent, No. 648,&27, for a handhold on the inside corner of car-seats, for the benefit of passengers compelled to stand in the aisles of crowded cars, is not void for lack of patentable novelty.</p>

<p>In Equity. Suit for infringement of letters patent No. 702,560, for an oil burner, granted to William R. Jeavons June 17, 1902. On final hearing.</p>

Regular terms of the Circuit and District Courts of the United States for the district of Nebraska are required to be held at Omaha commencing on the first Monday in May and on the second Monday in November of each year. December 17, 1903, during the November term of the District Court held at Omaha, the grand jury returned into that court an indictment against Charles H. Dietrich, charging him with bribery under section 1781 of the Revised Statutes [U. S. Comp.

Indictment for conspiracy under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], returned into the District Court November 16, 1903, and remitted to the Circuit Court under section 1038 [U. S. Comp. St. 1901, p. 723].

Indictment under section 3739 of the Revised Statutes [U. S. Comp. St. 1901, p. 2508] charging that the defendant, while a senator in Congress from the state of Nebraska, did “hold and enjoy” a contract theretofore entered into between himself and the United States for the use and occupation, for purposes of a United States post office at Hastings, Neb., of a lot and building owned by the defendant.

Indictment charging defendant, while a senator in Congress from the state of Nebraska, “duly elected, qualified and sworn according to law to perform the duties of his said office,” with taking, receiving, and agreeing to receive a bribe from Jacob Fisher for procuring and aiding to procure for said Fisher the office of postmaster at Hastings, Neb. Defendant entered a plea of not guilty.

<p>1. Bankruptcy — Pleading—New Matter — Replication.</p> <p>Where an alleged bankrupt answered the petition and alleged new matter, in that the amount he had received from the sale of his goods, which the petition alleged as the act of bankruptcy, he had used in paying off certain of his debts, such allegation, in the absence of a replication, must be taken as true.</p> <p>2. Same — Preference.</p> <p>Where an answer to an involuntary bankruptcy petition admitted that the bankrupt owed debts which he was unable to pay, and that he had transferred his property for cash, and had applied the proceeds in payment of some of his debts, such answer constituted an admission that the bankrupt had preferred some of his creditors over others, which constituted an act of bankruptcy.</p> <p>8. Same — Insolvency—Admission—Surplusage.</p> <p>Where a bankrupt admitted his insolvency in his answer to an involuntary bankruptcy petition, his willingness to be adjudged a bankrupt on that ground, as authorized by Bankr. Act, July 1, 1898, c. 541, § 3, subsec. 5, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], may be inferred.</p> <p>4. Same — Reservation of Rights.</p> <p>Where an alleged involuntary bankrupt admitted his insolvency in his answer, his reservation of a right to move to dismiss the proceedings for irregularities and want of notice was too indefinite to be considered.</p>

<p>1. Removal op Causes — Amount in Controversy — Remand.</p> <p>Act March 3, 1887, c. 373, § 6, 24 Stat. 555 [U. S. Comp. St. 1901, p. 511], provides that if in any suit removed from a state court to the United States Circuit Court it shall appear, at any time after such suit has been removed, that it does not involve a controversy within the jurisdiction of the court, the Circuit Court shall proceed no further, but shall dismiss the suit or remand it to the court from which it was removed. Hold, that where a suit in which plaintiff demanded $2,250 was removed to the Circuit Court, and after the removal plaintiff filed a supplemental pleading, alleging that there was a bona fide error in the account on which the complaint was based of $448.75, which reduced the claim to less than the amount necessary to give the Circuit Court jurisdiction, the case would he remanded to the state court.</p>

Appeals from the Circuit Court of the United States for the District of Kansas. Held: and that the county, through its proper officers, caused said county warrants to be canceled; that the refunding bonds so received by Doak were thereafter sold and delivered to the Municipal Investment Company of the City of Chicago, which company thereafter, in January, 1889, in turn sold and delivered said bonds, for value, to the…

<p>1. Wiles — Construction—Limitations or Estate.</p> <p>A court will not cut down an estate once granted absolutely in fee by limitations contained in subsequent parts of a will, unless the intent to limit the devise is manifested clearly and unmistakably; if the expression relied upon as a limitation be doubtful, the doubt will be resolved in favor of the absolute estate.</p> <p>2. Same — Continsent Devise Over.</p> <p>When a devise or bequest over to a third person is made dependent upon the death of the first taker as a contingency, as by the words, “if either of my children should die,” the death referred to is generally held to be one occurring during the lifetime of the testator, although when the devise is of a remainder there may be a question as to whether a death during the lifetime of thé testator is referred to or a death before the remainder falls in.</p> <p>8. Same — Estate of • Devises.</p> <p>A will construed, and held to vest a daughter of the testator with title in fee simple to land devised to a trustee for her benefit, and subsequently conveyed to her by the trustee under power given by the will, and not to limit her estate to a life interest.</p>

<p>1. Parties — Suit to Set Aside Provisions of Will — Necessity of Joining Legatees.</p> <p>Under the general equity rule that all persons whose interests will be directly affected by the judgment sought must be made parties to the suit, the legatees and distributees of a testator are indispensable parties to a suit in a federal court by an heir at law to obtain a construction of the will and to have a large number of its provisions, including the residuary clause, set aside as invalid on different grounds, so as to leave the decedent intestate as to a large portion of his estate, unless special circumstances are shown which bring the case within some recognized exception to such rule.</p>

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

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

<p>1. Customs Duties — Construction—Smelting and Refining Metals — Crude Ores — Lead Bullion.</p> <p>Tariff Act July 24, .1897, c. 11, § 29, 30 Stat. 210 [U. S. Comp. St. 1901, pp. 1626, 1957], relating to the importation of certain ores and metals to be refined or smelted in bonded warehouses, contains the proviso “that each day a quantity of refined metal equal to ninety per centum of the amount of imported metal smelted or refined that day shall be set aside, * * * and the exportation of the ninety per centum of metals * * * shall entitle the ores and metals imported under” said section to admission without payment of duty. Held, in regard to importations of lead bullion containing lead and antimony, that this means 90 per cent, of the pure metal contained in the crude nietal as imported, as determined by assay at the time of importation, and not of the pure metal recovered by smelting and refining.</p>

Appeal by the United States from the decision of the Circuit Court (122 Fed. 968) reversing a decision of the Board of General Appraisers which affirmed the assessment of duty by the Collector of Customs at the port of Philadelphia. Note United States v. Knowles, 122 Fed. 971; United States v. Shea, 114 Fed. 40, 51 C. C. A. 664; United States v. Hunter (C. C.) 124 Fed. 1005; Weil v. United States (C. C.) 124 Fed. 1006, and G. A. 4,712.

<p>1. Customs Duties — Sufficiency of Protest.</p> <p>In construing section 14, Customs Administrative Act June 10, 1890 (26 Stat. 137, e. 407 [U. S. Comp. St. 1901, p. 1933]), providing that protests against the assessment of duty by collectors of customs on imported merchandise shall set forth “distinctly and specifically” the reasons for objection to the assessment, held, that a protest is not sufficient that claims that the merchandise is free of duty under a certain paragraph of the tariff act, though as a matter of fact it is free of duty under another paragraph of the free list of the same act, to which the attention of the collector is not called in the protest.</p>

<p>1. Homestead Exemption — Judgments in Favor of United States for Fines or Penalties.</p> <p>Rev. St. § 1042 [U. S. Comp. St. 1901, p. 724], which provides that a poor convict, who has been imprisoned 30 days solely because of the nonpayment of a fine or fine and costs, may be released on making oath that he has not any property exceeding $20 in value, “except such as is by law exempt from being taken on execution for debt,” construed in connection with section 1041 [U. S. Comp. St. 1901, p. 724], providing for the collection of fines and penalties by execution against the property of the defendant “in like manner as judgments in civil cases are enforced,” evidences an intention on the part of Congress to place the United States on an equality with civil contract creditors in the enforcement of judgments in criminal and penal cases, and to give the families of poor convicts the full benefit of the exemption and homestead laws of the states as against such judgments; and, in the absence of any statute expressly providing therefor, an execution on a judgment for a fine in favor of the United States cannot be levied on the defendant’s homestead in Virginia, although under the state law such homestead is only exempt from contract debts, and not from judgments for torts or in favor of the commonwealth in criminal cases.</p>

<p>1. Tug and Tow — Collision of Tow with Bridge — Negligent Navigation of Tug.</p> <p>A tug with a barge in tow on lines 100 feet long, passing down the Merrimac river at night on an ebb tide, with the weather dark and rainy and a fresh wind blowing, held in fault for a collision between the barge and a bridge pier, where, although the passage was narrow and required the exercise of care and precaution, she proceeded at full speed and kept a course not in line with the passage until within 150 feet of the bridge, when the master changed her course and entered the passage before the tow was straightened out on her course and without looking to ascertain her position, the result being that the barge, though .using her best efforts, was not able to avoid the pier.</p> <p>2. Shipping — Loss of Cargo — Exemption of Vessel from Liability by Harter Act.</p> <p>The provision of section 3 of the Harter Act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) that, if the owner of a vessel shall exercise due diligence to make the said vessel in all respects seaworthy, and properly manned and equipped and supplied, neither the vessel nor her owners shall be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, cannot be invoked to relieve a vessel from liability for loss of cargo resulting from the gross fault or negligence of the master, sufficient to raise a presumption of his incompetency, merely upon a showing that the owners had no knowledge or reason to believe that he was incompetent, that being insufficient to establish the “due diligence” required by the statute, the burden of proving which, under such state of facts, rests on the vessel. Quaere, whether the statute applies in behalf of a tug which is towing a barge transporting cargo where both tow and tug are in the same ownership.</p> <p>¶ 2. Statutory exemption of shipowners from liability for loss, see note to Nord-Deutscher Lloyd v. Insurance Co. of North America, 49 C. C. A. 11.</p>

In Equity. On petition of appellee for a writ of mandamus and motion to dismiss appeal, and on appellants’ motion for special mandate.

<p>1. Railroads — Right of Way — Use of Streets — Injunction—Rights of Property Owner — Estoppel.</p> <p>Prior to the use of a street by a railroad, B., an abutting property owner, claiming to own the fee in the street, brought suit in the state court for an injunction to restrain the threatened trespass and to establish his title, in which he was finally successful, but before final decree the railroad seized the street and laid tracks thereon, after which a city ordinance was passed requiring the company to elevate its tracks in the street, which it threatened to do by the erection of stone walls, whereupon B. filed another complaint to restrain such act, and demanding compensation for the use of the street if his injunction was denied. This suit was removed to the federal courts, after which the railroad’s lessor began suit to condemn B.’s rights in the street, which he removed to the federal courts. Eeld, that the filing of B.’s second complaint to restrain the second trespass did not constitute a waiver of his rights under the decree in the first suit, so as to preclude him from maintaining a petition therein to punish the railroad’s officers for violating that decree.</p> <p>2. Same.</p> <p>Where an abutting landowner sued to restrain a railroad from using a street in front of his property, and, after he had recovered therein, the railroad’s lessor, for its benefit, sued to condemn his rights in the street, but the verdict in the condemnation proceeding, which allowed interest on the amount awarded from the date of the filing of the petition, was set aside, and a new trial granted, the award of such interest did not estop the landowner from enforcing his first decree restraining the railroad from using the street.</p>

This is an appeal from a decree of the Circuit Court, Western District of New York, on pleadings and proofs, dismissing a bill brought for alleged infringement of United States letters patent No. 586,088, issued to Walter P. Jones July 6, 1897, for improvements in incubators and brooders.

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

In Equity. Suit for infringement of letters patent No. 498,962, for improvements in draft tubes for soda fountains, granted to George W. Sample June 6, 1893. On final hearing.

In Equity. Suit for infringement of letters patent No. 528,550, for a self-threading shuttle for looms, granted to Joseph H. Nason November 6, 1894. On final hearing.

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

<p>In Equity. Suit for infringement of letters patent No. 599,447, for an improvement in bowling apparatus, granted to Emil Reisky February 22, 1898. On demurrer to bill.</p>

<p>Criminal prosecutions for violation of the customs laws, and for conspiracy to violate the same. On demurrer to indictments.</p>

<p>At Law. Trial by the court without a jury.</p>

<p>1. Principal and Surety — Alteration op Contract — Discharge op Surety,</p> <p>Where defendant guarantied performance of a lease for 10 years as surety for the tenant, which lease originally contained covenants binding the lessee to pay rent monthly in advance and keep the premises in repair, a modification of the lease before the tenant took possession, without defendant’s consent, by the insertion of a covenant that, in the event of total or partial destruction of the premises by fire or other casualty, the lease from that time should he void, and should he surrendered to the lessor, constituted a material alteration of the contract, and discharged defendant from liability as surety.</p>

<p>On Application for Appeal.</p>

<p>1. Gifts — Vatjdtty—What Law Governs.</p> <p>The validity of a charitable gift in a will depends on the law of the state where the testator was domiciled, and the lands devised are situated.</p> <p>2. Same — Charities—Accumulations—Perpetuities.</p> <p>Provisions of a will directing accumulations for charitable objects for a period longer than that allowed by the rule against perpetuities are valid.</p> <p>8. Same — Charitable Trust — Existence of Beneficiary.</p> <p>A gift in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain or contingent, is valid, notwithstanding the contingency may not happen within a life or lives in being and 21 years, provided there is no gift of the property in the meantime for the benefit of any private person or corporation.</p> <p>4. Same — Vested Gift.</p> <p>Where testator’s intention to make a gift to a charity is absolute, and the gift and constitution of the trust are immediate, and the only thing postponed is the particular form or mode of the charity to which the testator wishes the property to be applied, the gift is vested, and not contingent, and therefore not within the rule against perpetuities.</p> <p>6. Same — Wills—Construction.</p> <p>Where testator devised the residue of his estate to his executors in trust, and directed them, after paying certain specific legacies, to transfer the residue to a corporation which they were to form for the purpose of administering a charity, and there was nothing undisposed of, or any resulting trust in favor of the heirs or next of kin, the charity vested immediately on testator’s death, and was not conditional on the formation of the hospital corporation.</p> <p>6. Same.</p> <p>Where testator devised all the residue of his estate in trust to invest and pay certain annuities, and provided that unexpended balances after the satisfaction of the annuities and legacies at the expiration of 25 years should be transferred to a certain hospital corporation to be created, to which the residue of the estate was devised, the residuary estate was not thereby made a unit for the benefit of the individuals until their estate terminated, and then remainder to the charity, but should be construed to require payment of the annuities and legacies first out of the fund, the remainder of which should be paid to the charity; and hence there was no preceding gift or perpetuity in the first taker, so as to invalidate the charity.</p> <p>7. Same — Charitable Corporations — Gifts—Amount.</p> <p>A limitation in the charter of a corporation as to the amount of property it may hold is for the benefit of the general public, represented by the state; and hence the heirs or next of kin of a testator cannot object to a devise to a charitablé corporation on the ground that it will increase the devisee’s property beyond the limits prescribed in its charter.</p> <p>8. Same — States—Estoppel.</p> <p>Where a state passed a special act authorizing a particular charitable hospital to hold real and personal property to an amount not exceeding $5,000,000, it was thereby estopped to object to the corporation holding property devised to it, not exceeding such limit.</p> <p>¶ 2. See Perpetuities, vol. 39, Cent. Dig. § 65.</p> <p>¶ 8. Estoppel as against state or United States, see note to State of Michigan v. Jackson, L. & S. R. Co., 16 C. C. A. 353.</p>

<p>1. Federal Courts — Jurisdiction—Diversity of Citizenship — Judgment-Injunction — Conspiracy.</p> <p>Defendant was sued in a state court for enticing plaintiff’s daughter, and, though entitled to remove the cause to the federal courts, he answered in the state court, consented to a trial, and after verdict against him made a motion to set the same aside and for a new trial. These being denied, he appealed to the state Supreme Court, where the judgment was affirmed. Thereafter defendant obtained an affidavit from plaintiff’s daughter that her testimony had been false, and that she had been coerced by her father to testify as she did. On this and other evidence defendant applied in the state court to set aside the judgment for fraud and perjury, and appealed from an order denying his motion, and brought suit in equity in the state court to set the judgment aside. He also moved the state court to restrain execution, which was denied, and appealed from such order to the state Supreme Court, which appeals were pending when he filed a bill for an injunction in the federal court to restrain the enforcement of the judgment on the ground that it was obtained by fraud, conspiracy, and perjury, alleging the same facts as had been presented to the state court in the previous proceedings for a new trial, etc. Seld, that defendant, having elected to litigate the whole matter in the state courts, and having fully presented his entire case to those courts, the federal court would not take jurisdiction.</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>At Law. On motion for new trial.</p>

<p>1. United States — Bond of Contractor for Public Work — Suits against Surety.</p> <p>A surety company was surety on the bond of a United States contractor, and several actions at law having been brought against it on the bond by the United States and others furnishing labor or material to the contractor, the claims aggregating more than the penalty of the bond, it filed a bill in equity praying that such claims be marshaled and adjusted, and the amount for which it was liable be distributed; that further proceedings in the actions at law be enjoined. The injunction was granted against all claimants except the United States, and all other claims were proved and allowed in the equity suit. The United States refused to submit its demand to the equity court, but proceeded in the action at law until it obtained a verdict, after which the surety, by a motion, set up a dividend paid by it to the other creditors under orders of the court of equity. Pending such motion the other creditors moved in the equity suit for a final distribution. Held, that all creditors, including the United States, were entitled to share in the fund pro rata, and that, to secure such end, an order would be entered requiring payment to be made by complainant surety on that basis to all creditors whose claims were before the court; complainant on making such payments to be discharged from further liability to such creditors, and with leave granted it in the action at law by the United States to set up such payments by a supplemental motion as a matter affecting the amount of the judgment to be entered on the verdict.</p>

<p>At Law. Rule for judgment for want of a sufficient affidavit of defense.</p>

Hearing on Petition for a Writ of Habeas Corpus. On April 25, 1903, George Hoadly, Jr., filed his petition in this court against the respondent, Frederick S. Chase, praying for the issuance of a writ of habeas corpus directed to the said Chase, requiring him to produce the body of one Moses Fowler, sometimes erroneously described, the bill alleges, as Moses Fowler Chase, and who, it is averred, is illegally restrained of his liberty by the respondent at St. Elizabeth’s…

<p>1. Public Lands — Hot Springs Reservation — Power to Regulate Use op Waters.</p> <p>The United States, being the absolute owner of the Arkansas Hot Springs, has the same power that a private owner would have to exclude the public from the use of the waters, or to prescribe the terms and conditions on which they may be used; and regulations in regard to such use adopted or authorized by Congress cannot be interfered with by the courts on the ground that they are unreasonable and oppressive.</p> <p>3. Same — Delegation op Power bt Congress.</p> <p>Congress may lawfully delegate the power to make such regulations to the Secretary of the Interior, but any exercise of such power by him must rest upon some statute delegating it either expressly or by necessary implication.</p> <p>3 Same — Regulations by Secretary op Interior — Validity.</p> <p>By Act March 3, 1891, c. 533, 26 Stat. 843, relating to the Arkansas Hot Springs Reservation, which by section 3 vests in the Secretary of the Interior power to make regulations to prevent the waste of water by lessees, and, generally, power to “make all necessary rules and regulations as to said bath houses and the service therein as shall be deemed best for the public interest,” it was designed to provide for supplementing the general legislation of Congress by such specific regulations as may be necessary to carry out the general purpose of the government to preserve the property, and at the same time to give the public the opportunity to use the waters under proper and reasonable restrictions; and regulations promulgated by the Secretary thereunder in the exercise of his judgment and discretion, if reasonably adapted to such purpose, cannot be interfered with by the courts. But such provision does not confer authority to make rules 9 and 10, promulgated June 6, 1903, .which provide that no bathhouse supplied with water from the springs shall permit any person to bathe therein “who is under medical treatment,” unless such person is a patient of a physician duly registered at the office of the superintendent, and that the right of registry will only be accorded to such physicians as are approved by a board designated by the Secretary. The fact that they apply only to persons under medical treatment, while all others are permitted the use of the baths without, regard to their physical condition, renders such regulations void, as unwarranted and unreasonable, and not within the power conferred; and their enforcement will be enjoined at suit of a duly licensed physician of the state, who, by reason of having been denied the privilege of registry, is seriously injured in his business because his patients, without regard to the ailments for which they are being treated, are precluded from the use of the baths, whether prescribed by him or not.</p> <p>4. Same.</p> <p>Such regulations cannot be sustained as valid to the extent of prohibiting the use of the baths on the prescription of an unregistered physician, since they contain no such limitation, and the courts are without power to introduce it by construction.</p>

<p>On Motion to Quash Sheriff’s Return of Service.</p>

<p>On application of John P. Jackson, Collector of Customs at the port of San Francisco, to review the decision of the Board of General Appraisers (G. A. 4358), which sustained the protest of the importers against the assessment of duty on imported merchandise.</p> <p>This ease involves the construction of Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924), the pertinent part of which reads as follows: “If there be used for covering or holding imported merchandise, whether dutiable or free, any unusual article or form designed for use otherwise than in the bona fide transportation of such merchandise to the United States, additional duty shall be levied and collected upon such material or article at the rate to which, the same would be subject if separately imported.” The collector classified certain tea caddies as unusual coverings within the meaning of section 19, and assessed an additional duty under the provision for manufactures of metal, in paragraph 193, Schedule C, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1645), at 45 per cent, ad valorem; that being the rate to which the articles would have been subjected if imported separately. On protest by the importers against this assessment the Board of General Appraisers found that the caddies in question “were designed for the bona fide transportation of the tea to the United States, and that neither from material, character, or form were they designed to evade duty,” and accordingly reversed the decision of the collector. The collector appealed from this decision.</p>

Application of I. T. Williams & Sons, importers, for a review of the decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on certain imported merchandise.

<p>1. JunrcrAL Sales — Confirmation—Notice.</p> <p>When confirmation of a judicial sale is desired, the better practice is to serve on counsel notice that at a time and place stated decree nisi will be moved for. The motion, when made, should be accompanied by proof of service of such notice.</p> <p>2. Same — Person Moving for Confirmation.</p> <p>The purchaser at judicial sale is not the only one who may move for confirmation.</p>

<p>At Law. Action to recover for goods lost in transportation. Sur question of law reserved.</p>

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

<p>1. Bankruptcy — Attachment Liens.</p> <p>More than four months prior to the filing of the petition in bankruptcy, one subsequently adjudicated an involuntary bankrupt, by written contract which was never recorded, sold and agreed to convey real estate. Less than four months prior to the filing of the petition creditors of the vendor levied attachments on the said real estate. After the levy of said attachments, and before the filing of the said petition, the contract of sale was performed by the execution of a deed conveying said real estate, which deed was forthwith recorded. .Held, that the trustee in bankruptcy of the vendor, and not the attaching creditors, are by Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], given the benefit of the attachment liens.</p> <p>2. Same — Subrogation—Rights of Trustee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], is an enumeration of those properties the title to which passes to the trustee in bankruptcy by operation of law. Therefore the right of subrogation given the trustee by order of court under section 67f (30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]) is properly not mentioned in section 70a.</p> <p>8. Same.</p> <p>The duty of the court to either annul, or to subrogate the trusteee to the benefit of, liens obtained by legal proceedings against one then insolvent, commenced less than four months before the filing of the petition in bankruptcy, is not'confined to liens which create a preference.</p>

<p>1. Navigable Waters — Injury of Vessel by Wreck — Failure to Mark Position of Sunken Vessel.</p> <p>A loaded scow owned by libelants sank in the night, lying across the edge of the harbor channel as dredged, which was 20 feet deep, while the anchorage basin adjacent, 300 feet wide, was 16 feet deep. Libelants did not mark the position of the sunken vessel, except by an ordinary spar buoy, placed near its center, which was insufficient to give warning of the wreck. On the second morning thereafter the oyster steamer Lewis, coming in, ran into the sunken scow, both vessels being injured. .Held, that libelants were in fault for failing to properly mark the place of the wreck, and that the steamer was not chargeable with contributory fault because she was on the left-hand side of the channel; her draft being such that she could navigate over any part of the anchorage basin, and was not confined to the channel.</p> <p>2. Collision — Damages Recoverable.</p> <p>A claim for the value of the oysters left on the’ bed, and not marketed, as claimed, by reason of the injury of an oyster boat in collision, is too speculative and remote for allowance as an element of damages for the collision.</p>

<p>In Bankruptcy. The questions here are whether the trustee took title to the personal property of the bankrupt subject to the lien of a chattel mortgage thereon, or free and clear of same; and, if such property was subject to the lien of the mortgage, the amount thereof. Also, can creditors who were general creditors when the petition was filed and the adjudication made, but who have since perfected judgments against the bankrupt, assert their judgments against the mortgagee ?</p>

<p>In Admiralty. Suit against tug to recover for loss and damage to tow.</p>

<p>In Bankruptcy. On motion for reargument.</p>

<p>In Bankruptcy.</p>

<p>1. Indians — Public Lands — Allottees—State Laws — Application.</p> <p>Act Cong. Feb. 8, 1887 • (24 Stat. 389), provides for the allotment of lands in severalty to Indians residing on Indian reservations, the title to be held in trust by the government for 25 years or longer, and at the expiration of such period an absolute title vests in the allottee; and sectton 6 declares that on the completion of the allotments each allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which he may reside. Held, that after public land had been allotted to an Indian under such act he was not subject to prosecution for violating Act Cong. Jan. 15, 1897, c. 29, 29 Stat. 487 [U. S. Comp. St. 1901, p. 3620], prohibiting the commission of rape within the limits of an Indian reservation, but which contained no express provision that it should be applicable to Indians residing on allotted lands, but was subject to the laws of the state in which the crime was alleged to have been committed.</p>

<p>L Navigable Waters — Defective Drawbridge — Liability op City por Delay in Repairing.</p> <p>Evidence examined, and held not to support the claim of libelants that defendant city was chargeable with negligence in failing to promptly repair the draw of a bridge across a navigable stream which became bound without defendant’s fault or negligence so it could not be opened.</p>

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

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

<p>1. Bankruptcy — Referees—Fees.</p> <p>Under Bankr. Act July 1, 1898, c. 541, §§ 40, 48, 30 Stat. 549 [U. S. Comp. St 1901, pp. 3436, 3439], as amended by Act Feb. 5,1903, c. 487, §§ 9, 11, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, pp. 414, 415], providing that a referee in bankruptcy is entitled to commissions on all moneys distributed to creditors by the trustee, the referee is entitled to commissions on all sums which would have been paid through the trustee but for an outside agreement between the parties and their attorneys, in addition to the moneys which were actually disbursed by the trustee.</p> <p>2. Same — Property Subject to Liens.</p> <p>Where property subject to liens was sold by a bankrupt’s trustee with the consent of the holders of the liens, the referee and trustee in bankruptcy were entitled to commissions on the entire purchase price; and this though the property was purchased by the party holding the incumbrance, the orice in such case being treated as constructively paid to the trustee.</p>

In Bankruptcy. On petition by a creditor for review of the referee’s order allowing $590.64 as expenses incurred by I. J. Neuberger, as assignee of the bankrupt, prior to adjudication, reported by the trustee in his account for allowance.

<p>1. Bankrupt — Exemptions—Claim—Perishable Goods — Sale.</p> <p>Where a bankrupt claimed his exemption in his schedules, such claim must be regarded as seasonably made, notwithstanding the fact that the goods in the meantime have been converted into money by a receiver’s sale as perishable.</p> <p>2. Same — Preferential Transfer.</p> <p>Where, prior to the institution of bankruptcy proceedings, the bankrupt had voluntarily transferred certain goods belonging to him to a creditor as a preference, he is not entitled to obtain his exemption out of such goods after they had been recovered back by the trustee in bankruptcy.</p>

<p>Appeal by the Importer from a Decision of the Board of United States General Appraisers.</p> <p>On application of John Hunter, importer, to review the decision of the Board of General Appraisers (G. A. 4,768), which affirmed the assessment of duty by the collector of customs at the port of New York.</p>

<p>Action for. Wrongful Death. On demurrer to complaint.</p>

Roberts was indicted for murder, and convicted of manslaughter.

<p>1. Equity Practice — Reference—Scope.</p> <p>A party to a suit in equity is entitled to the judgment of the court upon the issues raised — especially those of law — and it is not competent for the court to refer the entire decision of the case to a master without the consent of the parties.</p> <p>3. Attorney and Client — Estoppel of Attorney — Acts Inconsistent with Employment.</p> <p>One who was for a number of years attorney for an insolvent judgment debtor and his wife, being employed whenever they needed the services of a lawyer, and who advised and assisted in transactions by which real estate owned by the debtor was transferred to his wife, and defended her title thereto when attacked by her husband’s creditors, is estopped to afterward buy one of the judgments then outstanding against the husband, and enforce the same by a creditors’ bill against the lands held by the wife; nor can he be heard in a court of equity, in his own interest, to assert that the transfers by which she acquired the title were fraudulent.</p>

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

George P. Kerr recovered a judgment against the city of New Orleans in the Circuit Court for $2,503. An execution issued thereon by authority of which the marshal seized a certain square of ground situated in the city of New Orleans, with all the buildings and improvements thereon, and all rights, ways, privileges, and servitudes thereunto belonging. The city by supplemental bill applied for a restraining order and injunction against the seizure and sale of the property.

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

<p>1. Collision — Inland Rules — Lights on Scow</p> <p>Article 9, cl. “d,” of the rules for inland navigation (Act June 1, 1897, 30 Stat. 96 [U. S. Comp. St. 1901, p. 2879]), and the inspectors’ rules made thereunder for Atlantic and Pacific coast inland waters, which require craft navigating by hand power, horse power, sails, or by the current of the river, or which shall be moored in or near a channel or fairway of any bay, harbor, or river, to carry one white light forward not less than six feet above, the rail or deck, apply to 'a scow forming part of the equipment of a dredge engaged in deepening the channel of the river and bay of Mobile, and being used in the channel at night.</p> <p>2. Same — Steamer Passing Dredge and Scow in Channel — Insufficient Lights.</p> <p>While a dredge was engaged in deepening the channel in the river and bay of Mobile it was customary for other vessels approaching to signal with their whistles, and for the dredge to answer if in a position to clear the channel and to move to the west side; otherwise the signal was not answered. While at work one night, a steamer approached and gave the signal, which was not answered, but the steamer proceeded, and came into collision with a scow attached to the dredge, which was still partly in the channel, although attempts were being made to move it out. The scow did not carry the light required by the rules. Held, that the steamer was primarily in fault for undertaking to pass without an answer to her signal, but that the failure of the scow to carry the regulation light was a contributory fault.</p>

In a suit of which the Circuit Court had: jurisdiction, a decree was rendered on April 12, 1901, appointing Ralph L. Aldrich, receiver of the Michigan Savings & Loan Association of Detroit, Mich., to take charge of its assets in Texas. He was empowered and directed to collect all debts due to the association. Under this order he filed in the Circuit Court a bill against F. B. Manor, seeking to collect a debt from Manor, and to enforce a vendor’s lien upon real estate.

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

<p>1. Fraudulent Use of Mails — Sentence—Consolidation of Indictments.</p> <p>The consolidation of three indictments, each charging a separate offense of using the mails to defraud, all committed in the same six months, does not, on conviction of all the offenses, prevent a sentence for each of them, under Rev. St § 5480 [U. S. Comp. St. 1901, p. 3696], providing that an indictment may charge three such offenses committed in the same six months, but the court thereon shall give a single sentence.</p> <p>1f 1. Use of mails for frauds and counterfeiting, see note to Timmons v. United States, 30 C. C. A. 86. .</p> <p>See Post Office, vol. 40, Cent Dig. § 90.</p>

<p>1. Paients — Invention—Thill-Coupling.</p> <p>The Bradley patent, No. 609,928, for a thill-coupling, comprising a divided draft-eye, having spherical recesses in its jaws, and a spherical wrist or knuckle on the thill or pole iron, in combination with a leather packing, consisting of a single piece compressed into a spherical form, adapted to fit between the draft-eye and knuckle to prevent rattling, while entitled to only a narrow construction — the form of packing being the only novel feature of the combination — within such limitation was not anticipated, and shows invention.</p> <p>2. Same — Designs—Subjects Patentable.</p> <p>A washer for thill-coupling, adapted to be used around the spherical knuckle of the thill-iron, as a packing between that and the draft-eye, where it is concealed from sight, cannot be made the subject of a design patent.</p> <p>3. Same — Washer for Thill-Couplers.</p> <p>The Bradley design patent, No. 28,571, for a design for a washer for thill-couplers, is void, as covering an article which is not a proper subject of such a patent.</p> <p>4. Same — Thill-Coupling.</p> <p>The Bradley design patent, No. 32,747, for a design for a draft-arm in a thill-coupling, is void for anticipation by the structure shown in a prior mechanical patent to the same patentee.</p> <p>5. Appeal — Motion to Dismiss.</p> <p>Whether or not a court erred in entering a certain decree is a question . to be presented on a review of such decree, and cannot be raised on a motion to dismiss an appeal therefrom.</p>

<p>1. Patents — Infringement—Pneumatic Tires.</p> <p>The Morgan & Wright patent, No. 502,047, for a pneumatic tire, comprising a tubular sheath having a limited split or opening for the insertion and removal of an air-tube, and an inclosed removable air-tube, by the language of the specification and claims, as well as by the amendment of the latter in the Patent Office, makes the essential feature of the invention the peculiar flattened closed end portions of the air-tube which extend beyond the inflatable portion, and detachably overlap the same when placed within the sheath, so as to be clasped thereby, and held by pressure against the wall of the sheath when the tube is inflated, forming a practically continuous air-cushion; and the patent is not infringed by a structure which lacks such feature.</p>

<p>In Equity. Suit for infringement of letters patent No. 649,864 for .an improvement in paste cups, granted to William Rodiger, May 15, 1900. On final hearing.</p>

<p>1 Patents — Preliminary Injunction — Proof of Contributory Infringement.</p> <p>Proof that defendant sold supplies for use on a patented machine bearing a label stating that it was sold subject to a license restriction that it could be used only with supplies made by complainant does not establish infringement or threatened infringement, so as to entitle complainant to a preliminary injunction, where it is not shown that the machine was in fact in the hands of a user under such restricted license.</p> <p>f 1. Contributory infringement of patent, see note to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 485.</p>

<p>1. Pleading — Answer—Special Defenses.</p> <p>Under the provision of the Colorado Code that the defendant may set forth by answer as many defenses as he may have, it is no objection to a special defense pleaded that the matter it covers may be given under the general issue.</p> <p>8. Fraudulent Representations — Right of Action for Damages — Corporation.</p> <p>An English corporation organized to take over mining property in Colorado, by the sole owner thereof, who conveyed the property to the corporation, and received all the issued stock, except seven shares, of one pound each, which were allotted to seven other persons nominated by him, and associated with him in the organization for the sole purpose of complying with the English companies acts, cannot maintain an action against him to recover damages because of alleged false representations made by him to his associates with respect to the value of the property.</p> <p>8. Same — Action for Damages — Defenses.</p> <p>Allegations in the answer in an action to recover damages for false representations in a sale of property by defendant to plaintiff showing that plaintiff did not purchase in reliance upon such representations, but upon information obtained from an independent source, state a good defense.</p> <p>4. Same.</p> <p>Facts pleaded in the answer in such an action which tend to negative the falsity of the representations alleged in the complaint are proper matters of defense.</p> <p>5. Executors — Actions against — Colorado Statute.</p> <p>Under the statute of Colorado relating, to the appointment and powers of executors (Mills’ Ann. St. § 4687 et seq.), as construed by the Supreme Court of the state, an action cannot be maintained against the executors named in a will on a claim against the testator prior to the time when the will has been probated, and such executors have qualified and received letters testamentary.</p> <p>6. Survival of Causes of Action — Law Governing — Place where Cause of Action Arose.</p> <p>■ Where the complaint in an action against executors to recover for alleged false representations made by the decedent shows that the representations were made in England, the law of that country governs, and under such law the cause of action did not survive.</p> <p>7. Same — Colorado Statute.</p> <p>Mills’ Ann. St. Colo. § 4810, which provides that “all actions at law [with certain exceptions] shall survive to and against executors and administrators,” does not apply to a cause of action for tort, so as to-change the common-law rule that such a cause of action does not survive the death of the person charged with its commission.</p> <p>8. Judgment on Pleadings — Power of Court to Enter.</p> <p>The power is inherent in every court of record, in the absence of a statute prohibiting it, to render judgment on the pleadings, when the facts shown and admitted thereby entitle one party to such judgment.</p> <p>H 3. See Fraud, vol. 23, Cent. Dig. §§ 17, 18.</p>

<p>In Bankruptcy.</p>

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

<p>1. Insurance — Valued Policies — Statutes—Noncompliance.</p> <p>Where, in a suit to restrain the prosecution of suits on certain policies, the bill alleged that the value of the property insured was not agreed on at the time of issuing the insurance, as authorized by Code S. C. § 1816, and such averment was admitted by a demurrer to the bill, such section had no application to the controversy.</p> <p>2. Same — Several Insurers — Pro Rata Liability — Federal Courts — Removal — Injunction.</p> <p>Where several insurers were only pro rata liable for loss, if liable at all, and several suits in the state courts had been brought against them, to which the same defenses were interposed, and some of the suits were removed to the federal courts,'but others could not be removed because of the insufficiency of the amount in controversy, prosecution of the suits at law both in the federal and state courts might be enjoined by a bill in the federal court to have the liabilities of the various insurers determined and adjusted by the federal court, as a court of equity, under such bill.</p> <p>8, Same — Ancillary Bill — Jurisdiction.</p> <p>Where several insurers were liable, if at all, proportionately to the amount the insurance of each bore to the amount of the loss, and suits against some of them had been removed to the federal court, and the same defenses had been interposed on behalf of all, a bill in the federal court to restrain the suits at law and to adjust the liability of the various insurers was an ancillary, and not an original, bill; and hence the jurisdiction of- the federal court did not depend on the citizenship of the parties or the amount involved.</p> <p>2. .Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575.</p> <p>IT 3. Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.</p> <p>4. Same.</p> <p>Where several policies of insurance were assigned after loss, and the assignee brought separate suits in the state court against all of the insurers, who were all citizens of states other than that in which the assignee resided, and some of the suits were removed to the federal court, but others were not removable, by reason of the insufficiency of the amount involved, whereupon one of the insurers filed a bill to restrain the suits at law, and to compel an adjustment of the liability of the various insurers in equity, the controversy alleged in such bill was between the various insurance companies and the assignee of the policies; and hence the bill was maintainable as an original bill, under Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], giving the United States Circuit Court jurisdiction of a controversy between citizens of different States.</p>

<p>1. Internal Revenue — Stamp Taxes — Copies of Foreign Charter Parties.</p> <p>Under the provision of the war revenue act of 1898 (30 Stat. 448 [U. S. Comp. St. 1901, p. 2286]) imposing a stamp tax on charter parties and other papers relating to the charter of a vessel, where charter parties were executed in a foreign country and left there, but copies were made and brought into the United States to be used in their place for the benefit of one or both of the parties, such copies are subject to the tax.</p> <p>2. Same — Suit to Recover — Sufficiency of Complaint.</p> <p>In a complaint against a collector of Internal revenue to recover the amount of taxes exacted by him from plaintiffs, who were shipping agents, as due, under the war revenue act, on copies of charter parties In their possession, and alleged by them to have been obtained for the information of themselves and their customers, an allegation that “plaintiffs’ said firm were strangers to said charter parties and the matter to which the same related” is not sufficient to show that plaintiffs were not agents or representatives of one or the other of the parties to such instruments, and properly chargeable with the tax.</p>

<p>1. Corporations — Conducting Unauthorized Business — Liability op Stockholders por Torts.</p> <p>Tbe fact that a corporation is engaged, in a business which it has no lawful right to carry on does not render its stockholders liable as partners for torts committed by its servants or agents in the conduct of such business.</p>

<p>1. Corporations — Pledge of Credit — Directors.</p> <p>The treasurer and directors of a corporation have no authority to pledge the corporation’s credit for the price of goods sold to another corporation.</p> <p>2. Same — Indorsement of Paper — Want of Consideration — Indorsees— Knowledge.</p> <p>Where a corporation indorsed a note given by another corporation by an indorsement which ordinarily implied a consideration, but no value was in fact given, and the indorsee had knowledge of such fact, the Indorsing corporation was not liable thereon.</p> <p>12. See Corporations, vol. 12, Cent Dig. § 1831.</p> <p>8. ■ Same — Ratification.</p> <p>Where the wife and daughters of the president of a corporation held stock therein, the consent of such female stockholders to an accommodation indorsement by the corporation of commercial paper given for materials sold to another corporation could not he inferred from the acts of the president and his sons, who conducted the active management of the corporation.</p> <p>4 Same — Guaranty—Rights of Creditors.</p> <p>Where a corporation, by the unanimous consent of its stockholders, guarantied the debt of another corporation for material furnished, the obligation created thereby was subject to the claims of the guarantying corporation’s creditors.</p>

<p>1. Bankruptcy — Act of Bankruptcy — Sufficiency of Evidence.</p> <p>The uncorroborated testimony of a single witness to a declaration made by an alleged bankrupt, after the conveyance by him of real estate to another, that the vendee was a creditor, if admissible in support of a creditor’s petition alleging such conveyance as a preference constituting an act of bankruptcy, is insufficient to sustain such allegation, against the bankrupt’s testimony that he was not indebted to the vendee, but received full payment for the land, and the testimony of other witnesses who saw the payment made.</p>

<p>1. Habeas Corpus — Matters Reviewable — Decision of Judge Granting Warrant for Removal of Prisoner to Another District.</p> <p>On the hearing of an application for a warrant for the removal to another district for trial of a person there charged with crime, the judge acts judicially; and, where the warrant recites that the requisite facts appear to his satisfaction from the evidence and record, there is an implication that he examined the testimony taken before the commissioner, and the judge of the district to which the prisoner is returned will not re-examine it on a writ of habeas corpus for the discharge of the prisoner on the ground that there is no legal and competent evidence to support the charge made against him.</p>

<p>Appeal by the Importers from a Decision of the Board of United States General Appraisers.</p> <p>On application by Boericke & Runyon Co., importers, for a review of the decision of the Board of General Appraisers (G. A. 5,021), which affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 4,327.</p>

<p>In Admiralty. Petition for limitation of liability.</p>

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

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

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

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

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

The following is the decree of the Circuit Court, per MEEK, District Judge.

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Sur motion of defendant in error to dismiss the writ of error or to affirm the judgment entered in the court below.</p>

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