Volume 127 — Federal Reporter

<p>1. Corporations — Default in Payment of Bonds — Right of Trustee to Foreclose.</p> <p>A trust company, as trustee for the bondholders of a corporation, had in its^possession a fund on which it was authorized to draw for paying interest on the bonds in case of default by the corporation, which was in such case bound by its agreement to replace the sum so withdrawn within a year. The trustee made two- interest payments from the fund, and they wore not restored by the corporation, which was in fact insolvent. Held, that the trustee was justified in foreclosing the security it held for the bondholders', and was not bound to wait until the fund was exhausted.</p> <p>2. Same — Powers of Trustee — Construction of Trust Agreement.</p> <p>Where an agreement pledging securities to a trustee to secure payment of bonds by a corporation provided that in case of its default the trustee might institute such legal proceedings as might be advised by counsel, the trustee was entitled to maintain a suit in equity, to foreclose and have the securities sold by order of the court, notwithstanding another provision giving it a power of sale. •-</p> <p>3. Same — Insolvency—Discretion of Court to Direct Sale of Assets,</p> <p>Where the receivers appointed for a corporation on the ground of its insolvency, who represented both creditors and stockholders, without fraud or collusion refused to oppose an application by the trustee-for its mortgage bondholders to have all of its mortgaged assets sold and applied to the payment of the mortgage debt, deeming such action for the best interest of all concerned, and the court decreed such salé, its action will not be set aside on objection of a single stockholder on the ground that there had been no such default as to render the principal of the debt collectible when two of the five defaults alleged were admitted to be true defaults, and to a large amount, and justified the proceeding hy the trustee of the mortgage.</p> <p>A Same — Foreclosure. Suit — Intervention by Stockholders.</p> <p>Allegations in a petition of intervention sought to he filed by a stoek- . holder of an insolvent'corporation in a suit by the trustee for .its bondholders to foreclose held insufficient to charge the complainant with fraud or conspiracy. , . '</p> <p>6. Same.</p> <p>A court of equity, having possession, through its receivers, of the property of an insolvent corporation, is not required to permit a stockholder to intervene in a foreclosure suit brought by the trustee for its bondholders for the purpose of requiring the trustee to enforce the liability of the stockholders for unpaid installments on their stock, instead of foreclosing its security. The court in such case has full power to order calls made on the stockholders if, in its judgment, such action is for the best interest of the creditors and stockholders; but its discretion is not subject to control by individual stockholders, nor is it required to permit them by interventions to interfere with its administration of the property.</p> <p>6. Same — Mortgage—Right of Trustee to Foreclose.</p> <p>The right of the trustee for mortgage bondholders of a corporation to foreclose and sell the security on default by the corporation cannot be affected by the fact that the corporation has power to make calls on its stockholders for unpaid installments which power it fails or refuses to exercise.</p> <p>7. Same.</p> <p>The fact that foreclosure proceedings against a corporation which is admittedly insolvent were instituted by the mortgage trustee at the instance of a committee representing a majority of the bondholders and also of the stockholders, who desired such action in furtherance of a plan of reorganization, is not sufficient to sustain a charge of conspiracy or fraud against the trustee made by a minority stockholder.</p> <p>8. Same — Foreclosure Suit — Proof of Claims.</p> <p>Where the entire bonded indebtedness of an insolvent corporation was proved in a suit to foreclose by the trustee in its own name, for the benefit of all of its certificate holders, as was proper under the trust agreement, it was not error for the receivers or the court to refuse to receive proof of the claim of an individual certificate holder.</p> <p>9. Jurisdiction of 'Federal Courts — Subject-Matter of Suit — Remedy</p> <p>Given by State Statute.</p> <p>Section 65 of the New Jersey corporation act (Laws 1896, p. 298), which authorizes a suit by a creditor or stockholder against any corporation which shall have become insolvent or suspended its ordinary business for want of funds to carry on the same, to enjoin the corporation, its officers and agents, from exercising any of its privileges and franchises' or transferring its property and for the appointment of a receiver, creates a right which may be enforced by a suit in a federal court having jurisdiction of the parties on its equity side, but such court will follow its own equitable procedure in granting the substantial relief given by the statute.</p> <p>10. Appealable Orders — Denying Leave to Intervene.</p> <p>An order denying the application of one not a party for leave to intervene when discretionary with the court is not an adjudication of any substantive right, and is not a final order from which an appeal will lie.</p> <p>11. Same — Discretionary Orders.</p> <p>An order refusing to entertain an appeal from the decision of receivers with reference to proof of a claim before them, where it was discretionary, and did not deprive the claimant of any substantial right, is not appealable.</p>

District of Tennessee. This was an action to recover damages under the seventh section of the act of Congress of July 2, 1890, e. 047, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202], known as the “Anti-Trust Act.” The plaintiff is a municipal corporation of the state of Georgia. The defendants arc two manufacturing corporations of the state of Tennessee, engaged in the business of making and selling hast-lron pipe and fittings.

This is a bill to set aside a sale of certain furnace property, made by trustees under a mortgage, as having been made without authority of law and in fraud of the rights of the complainant as mortgagor. The facts, so fajas deemed essential to be stated at this point, are as follows: The pi-operty involved consists of two iron furnaces and some 26 acres of land in Ironton, Lawrence county, Ohio.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This case comes here by writ of error to review an order of the United States Circuit Court for the Southern District of New York directing a judgment upon a'verdict of a jury finding the defendant guilty of a violation of section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676]. No evidence was offered on behalf of the accused. At the conclusion of the evidence for the government, counsel for the accused moved to dismiss on the ground that the government had failed to make out a case on the indictment, which motion was denied, and exception was duly taken.</p>

<p>1. Sales — Contract—Breach—Evidence—Letters.</p> <p>In an action-,for .preach of’ an oral contract to sell plaintiff the output of defendant’s coal mine at a certain price per ton, a letter written by . plaintiff, not replied, to, the day after the contract was made, pur- ; porting to be a memorandum of the terms of the contract as understood by plaintiff’s agent, which did not differ from his evidence as to ■ the terms of the contract, was not objectionable as a self-serving dec- ,: - laration. , . ’</p> <p>2; Same — Cross-Examination.</p> <p>Where defendant, after having sold the output of his coal mine to . plaintiff for $1.10 per, ton, stated the next day to the agent of another •••■ prospective-purchaser-that he had sold the coal to plaintiff for $1.15, with the understanding that, if he could get more for-it, the sale was not binding, whereupon he was offered $1.16 peí- ton, at which price he sold the coal, a question, asked of defendant on cross-examination, as to what he told the agent of such subsequent purchaser about his contract with plaintiff, was not objectionable on the ground that it was immaterial, and asked for the purpose of discrediting defendant before the jury.-</p> <p>8. Same — Contracts—Cancellation.</p> <p>. Where, after defendant broke a contract to sell plaintiffs the output of his coal mine at a certain price per ton for a year, plaintiffs agreed to purchase the output for a particular month of the year, and, on de- • ’ fendant.’s.’writing th&the .would be unable to ship until he could get more money from'ano-iher, plaintiffs withdrew their offer for defendant’s coal, such withdrawal should bo construed to relate merely to the latter contract, and did not terminate plaintiffs’ right to sue for breach of the contract for the sale of the output for the year.</p> <p>4 Same — Instructions.</p> <p>Where, in a suit for breach of a prior contract for the sale of the output of n coal mine, it was claimed that certain correspondence canceling a subsequent contract only, operated as a cancellation of the first, an instruction submitting the construction of such correspondence to the jury as a mixed question of law and fact, to be determined in connection with all the testimony, was not prejudicial to defendant; tho jury having found a cancellation of the subsequent contract only.</p> <p>5. Same — -Damages—Kvidence.</p> <p>In an action for breach of a contract for the sale of the output of a coal mine, evidence that the entire output of the region producing coal of the character of that contracted for had been bought up by others, and that defendant’s mine was the last one the output of which could be purchased, was admissible to show whether plaintiff, on defendant’s breach of his contract, could provide himself with coal in the same market, and charge the excess in price, if any, to the vendor.</p> <p>6. Same— Order of Proof — Rebuttal.</p> <p>It is within the discretion of the trial court to permit the admission of evidence in rebuttal which should have been offered in chief, and, where such discretion is not abused, a writ of error will not lie to the trial court’s action thereon.</p> <p>7. Same — Measure ok Damages — Profits.</p> <p>Where plaintiff purchased the output of defendant's coal mine at a stated price, to be furnished to a third person to whom plaintiff was bound to deliver the coal under a contract, of sale, and there was no available market in which plaintiff could purchase goods of the same description, on defendant’s refusal to perform, plaintiff was entitled to recover tho difference between the price at which he had contracted to buy the coal and what he was to receive therefor from his vendee.</p> <p>8. Same — Instructions—Objections.</p> <p>Where, in an action for breach of a contract Cor tho sale of the output of a coal mine, plaintiff would have been entitled to recover profits lost on a resale of the coal, defendant could not object,to an instruction limiting tho recovery to the difference between the contract and market price at the place the coal was to be delivered.</p>

The plaintiff, an Illinois corporation, brought this suit against the defendant, a Texas municipal corporation. It is alleged in the petition that the parties made a contract, which is fully described. It is made part of the petition, jpid is in these words: “State of Texas, County of Hunt.

<p>1. Bankruptcy — Fraudulent Conveyances — Evidence to Impeach</p> <p>Evidence held insufficient to sustain a bill by the trustee of a bankrupt partnership to set aside a conveyance of property by one of the partners as void under Bankr. Act, § 67e, Act July 1, 1898, e. 541, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449] because made with intent to hinder, delay, and defraud creditors, where all fraud in the transaction was denied by the sworn answers and uncontradicted testimony of defendants, and where it further appeared that the defendant bankrupt was not insolvent aside from the partnership liabilities, and that he did not consider himself a member of the partnership, and was not such under the law as settled by decision in the state of his residence, but was so adjudged by the bankruptcy court after a contest.</p> <p>2. Equity — Answer as Evidence.</p> <p>Unless a bill expressly waives answer under oath, it must be so made, and, when responsive to the bill, is evidence for the defendant, to overcome which the testimony of two witnesses, or its equivalent, is required; and the allegations of a bill charging fraud cannot be considered proved where they are specifically denied by answers under oath, and the only testimony introduced by complainant is that of defendants, who, as witnesses, support and amplify the averments of the answers.</p>

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

<p>1. Trial — Instructions.</p> <p>An instruction to a jury, requested by a defendant in sucb form that it does not raise a distinct proposition of law, but only groups together a portion of the alleged facts essential to such an issue, is ordinarily insufficient, if it raises a defense, and does not concern the propositions which the plaintiff is bound in the first place to maintain.</p>

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

<p>1. Courts — Circuit Court of Appears — State Constitution — Construction —Certification to Supreme Court.</p> <p>Where the Circuit Court of Appeals, by reason of conflicting decisions, found itself unable to determine whether a provision of a state Constitution rendering stockholders of a corporation individually liable to creditors for a sum equal to tbe amount of their stock in addition thereto was self-executing, and there was no decision of the Supreme Court of the state on the subject, the question will be certified to the United States Supreme Court.</p>

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

<p>1. Master and Servant — Injuries to Servant — Use of Appliances — Care Required.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. §§ 172, 181.</p> <p>A master is not a guarantor of the safety of appliances furnished for the use of his servants, and is not guilty of negligence in permitting the use of an appliance -which the experience of the trade and manufacture has sanctioned as reasonably safe.</p> <p>2. Same — Derrick Chains — Breakage—Crystallization—Inspection.</p> <p>Where defendant purchased a derrick chain from reputable chain-makers, who represented that it was of the highest quality of iron, handmade, and tested, and it appeared that the chain was externally sound, and had been subjected to a careful visual inspection from time to time, during its three months’ use, without disclosing any defects, before it broke because of crystallization of the iron, causing the death of plaintiff’s intestate, defendant was not guilty of negligence in failing to test the chain by subjecting it to a strain for the purpose of discovering- latent defects therein.</p>

<p>1. Contempt — Nature oe Proceeding — Review.</p> <p>Under Act Cong. March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 547], giving the Circuit Court of Appeals jurisdiction to review judgments in criminal cases, a judgment convicting defendant of contempt committed in an equity suit, being a judgment rendered in a criminal case separate and distinct from the equity suit, was reviewable by the Circuit Court of Appeals on writ of error.</p>

<p>1. Bankruptcy — Appeal to Circuit Court op Appeals — Propriety—Jurisdictional Question.</p> <p>The question whether a corporation is principally engaged in manufacturing and mercantile pursuits, within Bankr. Act July 1, 1898, e. 541, § 4, subsec. “b,” 30 Slat. 547 [U. S. Comp. St. 1901, p. 3423], so as to be declared an involuntary bankrupt, is within the jurisdiction of the District Court to determine, so that an appeal properly lies to the Circuit Court of ilppeals, rather than to the Supreme Court of the United States.</p> <p>2. Same — Time por Taking Appeal — Delay in Piling Bond.</p> <p>Where an appeal from an adjudication of bankruptcy is prayed and allowed within 10 days, as prescribed by the bankruptcy act, the failure to file a bon'd and serve the citation until a few days after such period will not necessitate a dismissal of the appeal, no material prejudice being shown.</p> <p>8. Involuntary Bankruptcy — Corporations Engaged Principally in Mercantile Pursuits — What Constitutes — Shipbuilding Company.</p> <p>A corporation chartered to construct and repair vessels, carry on a general shipbuilding and ship-repairing business, construct and operate a marine dry dock, etc., and whose main business consisted in the building of large steel vessels, and in repairing others; is a corporation engaged principally in manufacturing and mercantile pursuits, within Bankr. Act July 1, 1898, c. 541, § 4, subsec. “b,” 80 Stat. 547 [U. S. Comp. St. 1901, p. 3423], providing that such a corporation may be adjudged an involuntary bankrupt.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>Appeal by defendant from final decree of the United States Circuit Court for the Eastern District of New York adjudging that the plaintiff was entitled to the whole of a certain fund, except $150.63.</p>

the United States for the Northern District of Illinois. The appellants, judgment creditors of James H. Walker Company, an insolvent Illinois corporation, filed their bill to enforce an alleged liability of the stockholders of the corporation for unpaid subscriptions to the capital stock, and this appeal is from a decree overruling exceptions to the master’s report and dismissing the bill for want of equity.

<p>1. Defective Sidewalk — Injury to Pedestrian — Contributory Negligence.</p> <p>It is not negligence as a matter of law for one to walk upon a street which he can see is out of repair or obstructed by debris.</p> <p>2. Same — Instructions.</p> <p>In an action by a pedestrian against an abutting owner for injuries occasioned by stepping into a hole left in the sidewalk by the removal of an iron grating, the accident occurring at night and while the place was unliglited and unprotected, it is not error to refuse to instruct that if the jury find that plaintiff and his companion were walking on the sidewalk, where he could plainly see debris, etc., and knew the walls of the build-lag were-tora down, but could see a safe and secure path, and, wishing to get in this path where his companion was walking and which was light, he, instead of stopping short to allow his companion to pass on and then stepping behind him, stepped over towards the wall, and in the dark, and’ fdll in the hole, this was contributory negligence.</p> <p>11 1. See Municipal Corporations, vol. 36, Cent. Dig. §§ 1678, 1750.</p> <p>8. Same — Question ’non Juki — Review.</p> <p>1 The fact that in a personal injury case the trial judge has submitted, or refused to submit, a question involving the inference as to contributory negligence to be reasonably drawn from undisputed facts, cannot conclude a reviewing tribunal, since the opinion- thus expressed as to what might or might not be reasonably inferred cannot furnish an arbitrary standard.</p>

This is an appeal from a decision of the Circuit Court of the United States for the Southern District of New York (121 Fed. 207), affirming a decision of the Board of United Statek General Appraisers, which sustained the action of the collector in his assessment of duty upon the merchandise in question. Note G. A. 4,200.

<p>1. Trade-Marx — Protection—Infringement.</p> <p>The right of the owner of a trade-mark to be protected in the exclusiva use thereof is not dependent on the federal statute authorizing registration. ,</p> <p>2. Same — Nature of Relief — Unfair Domestic Competition.</p> <p>Where the ground for relief in a suit for infringement of a trade-mark was unfair competition in domestic commerce, and the cause of action alleged, was an imitation of plaintiff’s trade-mark on cartons used in Iocaj trade, and there was no allegation that complainant’s foreign trade was injured by the acts complained of, the fact that the trade-mark was registered, and that complainant was entitled to protection under -the federal statute with regard to foreign commerce, was immaterial. ■ • ''</p> <p>¶ 2. Unfair competition, see notes to Seheuer v. Miller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376,</p> <p>8. Same — Evidence.</p> <p>Complainant’s “In-er Seal” trade-mark, as known to the public,. was printed in white letters on a vivid red background of a peculiar shade, and applied to the ends of cracker and biscuit cartons, in which complainant’s goods were packed for sale. Shortly thereafter defendant conceived a trade-mark with the words “Factory Seal” printed on the same-colored labels, which it applied to the ends of similar packages of its biscuits. At the time defendant adopted this trade-mark it knew complainant’s crackers were the only ones sold with the red seal on the end of the cartons, and that its trade-marks were liable to deceive careless purchasers. Held, that defendant’s trade-mark, when so printed and used, was an infringement on complainant’s trade-mark, and should be enjoined.</p>

Petitions to Review Orders of the District Court of the United States for the Eastern District of New York. This cause comes here upon two petitions to review orders in bankruptcy made in the District Court for the Eastern District of New York. The orders are substantially alike; one being in favor of the Otto E. Reimer Company, and the other in favor of Rouis Bossert .& Son; both concerns being creditors of the bankrupt.

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

<p>Sur Mqtions .to Dismiss Appeal and Petition for Review.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In Bankruptcy. On petition to revise in matter of law an order of the District Court.</p>

<p>1 Counties — Judgments—Enforcement—Tax Levy — Mandamus—Nature of Proceeding.</p> <p>A writ of mandamus, issued after judgment against a county, to compel the levy of a tax, to pay the same, is a proceeding at law in the nature of an execution to enforce satisfaction, and is not a proceeding in equity.</p> <p>2. Same — Mode of Review</p> <p>An order directing the issuance of mandamus against a county to compel the levy of a tax to pay a judgment recovered against it is reviewable by writ of error, and not by appeal.</p> <p>3. Same — Dismissal.</p> <p>Where an appeal was erroneously taken from an order directing the issuance of mandamus to compel the levy of a tax to pay a judgment against a county, and the time within which a writ of error to review the order could be issued had expired, the appeal would be dismissed.</p> <p>¶ 2. See Mandamus, vol; 33, Cent. Dig. § 428.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The decree of the Circuit Court of the United States for the Southern District of New York, reported in 124 Fed. 521, sustained, and adjudged infringement of, claims 4 and 5 of letters patent No. 412,442, granted October 8, 1889, to Walter S. Wells, for an improvement in eyeglasses. The patent appears in full in the opinion of the Circuit Court.</p>

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

' This is a bill to restrain infringement of a patent to L E. Barrett, No. 468,720, for an improvement in “letters, figures, and ornamental designs to be attached to glass,” for forming signs, etc. The patentee, in his-specifications, says: “The object of my invention is to obtain a letter which may be attached to a glass or other transparent plate by cement or other suitable means, the front face of said letter or figure coming in contact with the glass to which it is…

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

<p>1. Patents — Invention—Doos Bells.</p> <p>The Rockwell patent, No. 471,983, for a bell designed for use as a door bell, is void for lack of invention, in view of the prior art, and especially of the English patent to Bennett, No. 2,425 of 1877, for a call bell.</p>

<p>Appeal and Cross-Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Charles H. Leonard et al., the defendants in the first of the above-entitled actions, are doing business at Grand Rapids, Mich., and manufacturing, among other things, certain game boards which were offered for sale in the Southern District of New York hy Alfred X. Fisher et al., the defendants in, the second of the above-entitled actions. The complainant, a corporation lo-. Cated. at Ludington, Mich., alleges infringement of two separate patents' owned by it,- and also infringement of its common law and registered trade-i mark “Carroms.” The complainant also charges the defendants with unfair-competition in trade.</p> <p>The Circuit Court decided that the patents, if valid, were not infringed, apd that there was no proof of unfair competition as distinguished from the niere infringement of the trade-inark. From those portions of the decrees holding no infringement of claims 1, 3 and 6 of the Haskell patent and that the defendants were not guilty of unfair competition the complainant appeals.</p> <p>The Circuit Court decided further that the complainant had a valid trademark in the word “Carroms” as applied to game boards; that the defendants-infringed and that the use of the trade-mark by them should be enjoined. From- this portion of the decrees the defendants appeal.</p>

In Equity. Suit for infringement of letters patent No. 552,470, for a hose supporter, granted to Robert Gorton December 31, 1895. On motion for preliminary injunction.

<p>1. Patents — Invention—Face Plate for Caskets.</p> <p>The Hamilton patent, No. 619,567, for a face plate for burial caskets, consisting of a sliding frame over which is stretched a transparent gauze fabric, embodies nothing more than the substitution of the gauze fabric previously used for like purposes, for the glass plate in common use in a similar frame, which, in view of the prior art, did not involve invention.</p>

<p>In Equity. On -motion for preliminary injunction. For opinion on appeal,</p>

<p>1. Fbderat. Courts — Injunction—Proceedings in State Court.</p> <p>A bill seeking merely to maintain the oi’iginal contract nnder which complainant is furnishing water to defendant city and its citizens, and to prevent enforcement of lower rates of compensation fixed by an ordinance, and referring to no pending suit or proceeding, is not one to stay proceedings in a state court, which Rev. St. § 720 [tí. S. Comp. St 1901, p. 581], forbids a federal court to entertain; nor is it one to enjoin criminal prosecutions, though the ordinance, by its terms, may be enforced by fines and penalties.</p> <p>2. Cities — Liability to Suit.</p> <p>A suit against a city, involving contract rights only, may be entertained; a city not being entitled, like a state, to immunity from suits against it.</p> <p>3. Equity-Remedy at Law.</p> <p>A bill alleging a contract, by its terms still in force, under which complainant is furnishing water for defendant city and its citizens, and the passing of an ordinance by defendant fixing much lower rates than provided by the contract, makes a case for equity jurisdiction; the remedy at law being inadequate.</p> <p>4. Water Companies — Regulation or Rates by City — Reasonableness. '</p> <p>Even though defendant city has the right to regulate the charges to be made by complainant water company for furnishing water to it and its citizens under a contract, the court may interfere with rates so plainly and palpably unreasonable as to make their enforcement equivalent to depriving complainant of reasonable returns on its investment.</p> <p>¶ 1. Federal courts enjoining proceedings in state courts, see notes to Garner v. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575.</p> <p>Restraining criminal prosecutions, see note to Arbuckle v. Blackburn, 51 C. C. A. 133. .</p> <p>6. Pkeuminaky Injunction.</p> <p>The rates fixed by defendant city, which complainant may charge for furnishing water to defendant and its citizens under their contract, being, as alleged in the bill, so unreasonable as to destroy the value of complainant’s property, and there being no other pleading, preliminary injunction will issue.</p>

<p>1. Public Lands — Foroery of Homestead Application — Sufficiency of Description.</p> <p>The forgery of homestead applications and affidavits, with intent to thereby obtain title to public lands of the United States, constitutes an offense, under Rev. St. § 5418 [U. S. Comp. St. 1901, p. 3666], although the land was described as “in township 24 south of range 1 east,” without naming the meridian, where in fact all the townships in the state . are numbered from the same meridian, and the description was therefore sufficient to identify the lands to the officers acting oni the papers, and such papers were capable of effecting the intended fraud.</p> <p>2. Indictment — Sub’ficibncy—Reference, to Other Counts.</p> <p>One count in an indictment may refer to matter in a previous count for the purpose of avoiding unnecessary repetition.</p> <p>¶ 2. See Indictment and Information, vol. 27, Cent. Dig. §§ 270, 270%.</p>

<p>Criminal Prosecutions. On demurrers to the indictments.</p>

<p>Criminal Prosecution for Violation of Pension Raws. On demurrer to indictment.</p>

<p>1. Publications — Lawful Use.</p> <p>Defendant’s use of plaintiff’s credit book for the purpose of discovering names of individuals, firms, and corporations engaged in business, to" be inserted in defendant’s publication which it was preparing, was not such an unfair use of complainant’s book-as to entitle complainant to ’an injunction pendente lite.</p> <p>8. Same — Ratings—Appropriation—Affidavits—Conflicting Evidence.</p> <p>Where, in a suit to restrain defendant from using complainant’s credit publication, complainant insisted that defendant had appropriated complainant’s ratings as well as the names of persons appearing in complainant’s book, but on such issue the affidavits were conflicting, an injunction pendente lite restraining defendant’s use of complainant’s book would not be granted.</p>

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

<p>1. Executors — Action against in Foreign Jurisdiction.</p> <p>Executors are not subject to suit in their representative capacity in a state other than that of their appointment.</p> <p>¶ 1. See Executors and Administrators, vol. 22, Cent Dig. § 2344.</p>

<p>' In Equity. Suit to set aside tax deed,</p>

<p>1. Bankruptcy — Claims—Priority—Wages—Assignment.</p> <p>Banlp\ Act July 1, 1S98, c. 541, § 64, subsee. 4, 30 Stat. 563 [IT. S. Comp. St. 1901, p. 3447], entitling to priority claims for wages, not exceeding $300 to eacb claimant, earned within three months before the date of the commencement of bankruptcy proceedings, is for the benefit of the wage earner alone, and docs not entitle a bank to priority for money advanced to the insolvent for the payment of pay rolls of such laborers, which the insolvent agreed to assign to the bank.</p> <p>2. Same — Trust Funds.</p> <p>Where a corporation, before being adjudged a bankrupt, passed a resolution requesting each stockholder to subscribe for 15 per cent, ad- ' ditional stock to pay off outstanding claims, on condition that no sub-</p> <p>¶ 1. See Bankruptcy, vol, 6,; Cent. Dig. § 536. scription paid in should be nsed unless every stockholder paid a like subscription, which they did not do, the corporation was equitably bound to return payments made under such resolution; and hence stockholders having made payments thereunder were entitled to have the same refunded by the corporation’s trustee in bankruptcy.</p> <p>8. Same — Intebbst.</p> <p>Where stockholders of a corporation paid for certain conditional subscriptions to stock, and the conditions were not complied with by the corporation, but the stockholders did not make a demand for return of the amount so paid prior to the filing of a petition in bankruptcy against the corporation, they were not entitled to interest on the amounts so paid. '</p>

<p>1. Bankruptcy — Manufacturing Corporations — Commencement of Business.</p> <p>Under Bankr. Act July 1, .1898, c. 541, 30 Stat; 544 '[U. S. Comp. St. 1901, p. 3418], providing that any corporation engaged principally in manufacturing or mercantile pursuits may be declared a bankrupt, a corporation organized for the purpose of manufacturing paper from wood -pulp, which had purchased woodland and other property for the commencement of its business, was subject to bankruptcy proceedings within the statute, though it had never in fact started its factory.</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat. Hank v.- First Nat. Bank, 42 C. C. A, 4.</p> <p>2. Same — Dissolution of Corporation.</p> <p>Where, after involuntary bankruptcy proceedings had been begun, against a corporation, a decree was entered in another state dissolving the corporation, such decree did not affect the bankruptcy proceedings.</p>

<p>1. Bankruptcy — Fraudulent Transfers — Vacation—Action by Trustee-Federal Courts — Jurisdiction.</p> <p>Bankr. Act July 1, 1898, c. 541, § 23, subd. “b,” 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431J, provides that suits by the trustee shall he brought or prosecuted in the courts where the bankrupt whose estate is being administered might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property transferred to accomplish a preferential payment within four months of the institution of bankruptcy proceedings authorized by section 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3-145], or to set aside transfers constituting a fraudulent disposition of property within four months of the institution of bankruptcy proceedings under section 6Te, 30 Stat. 564 [U. S. Comp. St. 1901, p. 8448]. Section 70e, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3452], declares that the trustee may avoid fraudulent transfers by the bankrupt which any creditor might have avoided, and for that purpose any court of bankruptcy, or any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction. Held, that where defendants in an action by a trustee in bankruptcy to set aside alleged fraudulent transfers not creating a preference, nor made within four months of bankruptcy, did not consent to be sued in a federal court, such court had no jurisdiction of the action.</p>

<p>1. Bankruptcy — Partnership—Application by Partner — Discharge—Partnership Debts.</p> <p>Where a member of a firm filed a petition individually to be adjudged a bankrupt, and the petition was silent as to partnership assets and liabilities, though the schedule disclosed individual and partnership debts, and the creditors of the firm were not notified, the bankrupt was not entitled to a discharge from firm debts, though the firm had been dissolved and was without assets, and the firm debts were barred by limitation.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 778.</p> <p>8. Same — Amendment.</p> <p>Where an individual’s petition for a discharge in bankruptcy by a member of a firm did not disclose partnership assets or liabilities, and . the bankrupt thereafter applied for a discharge from firm debts, the proceedings' should'be amended so as to include firm assets and liabilities, and sb as to make firm creditors parties thereto.</p>

In Equity. Suit to enjoin defendant city from interfering with the use of its streets by complainant for telephone purposes.

This is a suit in equity, brought by the complainant, a corporation chartered under the laws of West Virginia, to restrain and inhibit the defendant, in his official capacity as Attorney General of the state of West Virginia, from proceeding to institute an action in the state 'court's for the forfeiture of the charter of the complainant for its fail- ' ufé to pay the license tax imposed on it by chapter 33, p. 93, Laws 1901.

<p>1. Constitutional Law — Denial op Equal Protection op Laws — Validity op State Statute.</p> <p>Act Ark. April 23, 1891 (Sess. Acts 1891, p. 296), requiring all negotiable instruments taken in payment for any patented machine or thing or any patent right to be on a printed form, stating the consideration on its face, and declaring all such notes not showing on their face for what they were given absolutely void, but which further provides that “this act shall not apply to merchants and dealers who sell patented things in the usual course of business,” is void as in violation of the provisions of the fourteenth amendment to the federal Constitution that no state shall deny to any person within its jurisdiction the equal protection of the laws.</p>

<p>1. Federal Courts — Officers—Indictment—Habeas Corpus.</p> <p>Where officers of a federal court wore indicted by a state court for homicide in killing a prisoner they were seeking to arrest at the command of the United States marshal, the federal court had jurisdiction of a writ of habeas corpus to determine whether they were not unlawfully restrained of their liberty.</p> <p>¶1. Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 2a C. O. A. 4. 1 ¡</p> <p>2. Same — Arrest—Killing Accused — Evidence.</p> <p>During .a strike, federal injunctions had been issued against the strikers, which had been uniformly disobeyed by deceased and others, and process had been issued for their arrest. Deceased on two occasions had resisted arrest with firearms, and had stated that he would never bo taken alive, and did not intend to be arrested. Indictments having been returned against deceased, a United States marshal warned petitioners to assist in arresting him, and, after his house was surrounded, deceased ran therefrom with a revolver in his hand, which he pointed towards petitioners, and they, after calling to deceased to halt, and while he was approaching a tree which they believed he intended to use as a shelter to fire at them, shot deceased and killed him, for which they were indicted by the state court. Held, that such facts did not show an abuse of process, but justifiable homicide, and that petitioners were therefore entitled to release on habeas corpus.</p>

<p>1. Levees — SriiciAi, Assessments — Sale of Land — Notice to Heirs.</p> <p>Where proceedings resulting in the sale of lands belonging to plaintiff’s ancestor for nonpayment of levee assessments were had during bis lifetime, objections by bis heirs, in proceedings to set aside such sale, as to want of notice to them, are immaterial.</p> <p>3. Same — Collateral Attack.</p> <p>Where land in controversy was sold for nonpayment of levee assessments in a proceeding at the instance of a district levee board, and such board was not made a party to a subsequent proceeding to cancel the deeds made pursuant to such sale, such action was a collateral, and not a direct, attack on the proceedings resulting in the sale.</p> <p>8,- Same — Statutes—Notice—Reasonableness.</p> <p>• Acts Ark. 1895, p. 88, No. 71, authorizing the. commencement of proceedings to enforce the collection, of taxes on lands owned by nonresidents of the county on a notice to be published weekly for four weeks, is not unconstitutional on the ground that such time is unreasonably short.</p> <p>4. Same — Discrimination.</p> <p>Acts Ark. 1895, p. 88, No. 71, authorizing the sale of lands of nonresidents for nonpayment of taxes due thereon on four weeks’ published notice, is not unconstitutional, as discriminating against nonresidents, in that it requires 20 days’ notice to be given to a resident, and by reason of the fact that the general statutes of the state in ordinary proceedings provide for a longer notice to nonresidents, and gives them 2 years after rendition of the decree to have the same vacated and make a defense.</p> <p>5. Same — Affidavit of Nonresidence.</p> <p>Where a sworn complaint in a proceeding to subject nonresident lands to the payment of delinquent levee taxes alleged that the owner was a nonresident, it was sufficient to authorize service by publication without a separate affidavit of nonresidence.</p> <p>6. Same — Order for Publication — Entry.</p> <p>Where a special act for the subjection of nonresident lands to the payment of delinquent levee taxes did not require the entry of an order for publication on the record, or any indorsement thereof on the complaint, neither such entry nor indorsement was required to authorize publicátion of the notice.</p> <p>7. Same — Proof of Publication— Recitals of Decree — Collateral Attack.</p> <p>Where a decree for the sale of land belonging to a nonresident for nonpayment of levee taxes recited that the defendants had been constructively summoned by publication, etc., tbe decree could not be collaterally attacked on the ground that there was no evidence of proof of publication, and that therefore it would be presumed that notice had not been published. .</p> <p>8. Same — Complaint—Sufficiency.</p> <p>A decree in proceedings for the sale of land for tbe nonpayment of levee taxes cannot be collaterally attacked on tbe ground that tbe complaint did not state a good cause of action.</p> <p>9. Same — Commissioners—Pees—Excessiveness.</p> <p>A decree authorizing tbe sale of lands belonging to a nonresident for nonpayment of levee taxes is not subject to collateral attack on tbe ground that the court allowed tbe commissioner making tbe sale greater fees than were allowed by law.</p> <p>10. Same — Statutory Proceedings — Jurisdictional Pacts — Record.</p> <p>Under Acts Ark. 1895, p. 88, No. 71, providing for the sale of land for nonpayment of levee taxes by means of a proceeding in a superior court of record to foreclose the lien, authorizing the defendant to file an answer, take proofs, and have a hearing as in ordinary chancery cases, the decree of such court foreclosing such lien is not subject to collateral attack on tbe ground that the record of proceedings did not disclose all tbe jurisdictional facts.</p> <p>11. Same — Statutes—Construction—Time.</p> <p>Acts Ark. 1895, p. 88, No. 71, provides for tbe sale of nonresident lands for nonpayment of levee taxes, and declares that a suit to foreclose tbe- tax lien shall stand for trial at the first term of tbe court after tbe complaint may :be filed If said four weeks in the ease of a nonresident shall expire either before the first day of the term or during the term of the court to which said suits are brought, respectively. Held, that such act authorized the hearing .to be had four weeks after the first publication of tbe notice, and not four weeks after tbe last publication.</p>

<p>In Admiralty. Libel to recover damages arising from alleged neglect of pilot. On exceptions to libel. • •</p>

<p>1. Eobeion Corporations — Process—Service—'Business within State.</p> <p>Where in an action in a federal court, sitting in Pennsylvania, against a foreign corporation, the statement of claim filed when the summons was issued described the defendant as a railway corporation of the state of Virginia, and neither such statement, the summons, the praecipe therefor, nor the return, recited that the corporation was transacting business in Pennsylvania, a service made on the corporation’s assistant secretary in Pennsylvania was insufficient to confer jurisdiction of the corporation.</p> <p>2. Same — Evidence.</p> <p>Defendant, a Virginia railroad company, neither owned nor operated any railroad located in Pennsylvania, and maintained no office in that state, though throe directors and its assistant secretary resided tlive, who may at various times have received and given information indirectly affecting -the corporation’s business elsewhere. Defendant’s cars, both freight and passenger, were transported through Pennsylvania by other railroads for the convenience, of passengers and shippers; such railroads, however, paying for the use of the cars, and receiving the freight and passenger rates for that portion of the haul that was done in Pennsylvania. Defendant was also á member of a freight transportation line which maintained an agency in Pennsylvania for the solicitation of freight to be shipped under through bills of lading, each line receiving a proportionate share of the freight, and each contributing to the expense of the agency; and another railroad company, located in Pennsylvania, sold coupon tickets in connection with its own tickets only, good over defendant’s road, accounting each month to defendant for its 'proportion of the proceeds. (Held, that such facts did not justify a finding that defendant was doing business in Pennsylvania, so as to authorize it to be sued in that state.</p> <p>¶ 1. Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. O. A. 3.</p> <p>12. Foreign corporations “doing business” in state, see note to Wagner V1. J. & G. Aleakln, 33 C. O. A. 585. • . '</p>

<p>1. Contracts — Execution—Agent of Disclosed Principal.</p> <p>Where G. & Co. had contracted to furnish certain machinery to a corporation, tho fact that plaintiff’s proposal to furnish such machinery, addressed to G. & Co. at their office, contained as a part thereof the words, “Por the National Umbrella Company, hereinafter called the purchaser,” and recited that plaintiff proposed to furnish the following apparatus, delivered f. o. b. Philadelphia, “for the National Umbrella Company,” did not relieve defendant, who subsequently signed G. & Co.’s acceptance of the proposal on plaintiff’s refusal to approve the same unless guarantied by defendant, from liability, on the ground that the contract showed that the signers of the acceptance were acting only as agents for the umbrella company.</p> <p>2. Same — Persons Liable — Signature—Effect.</p> <p>G. & Co. requested plaintiff to give them a written proposal to furnish certain machinery, which was done by a proposal addressed to them at their office. The proposal was accepted on a printed form, the signature being “G. & Co., by S. S. G., President,” with the word “President” erased. The acceptance was not satisfactory to, plaintiff, and it refused to approve same unless defendant, who was the father of the members of the firm composing G. & Oo., would guaranty it. This he did not do, but instead signed his name at the bottom of the acceptance with the individual names of the other partners. Held, that defendant was iiable on the acceptance as a party to the contract.</p>

<p>1. Bankruptcy — Discharge — Concealment of Assets — Application to Reopen Case — Time.</p> <p>An application to reopen a bankruptcy proceeding on the ground that it was closed before the estate was fully administered, as authorized by Bankr. Act July 1, 1898, c. 541, § 2, cl. 8, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3421], on the discovery of assets alleged to have been concealed by the bankrupt, must be made within a reasonable time, at the discretion of the court on consideration of all the circumstances of the case.</p> <p>8. Same — Suits by Trustee.</p> <p>An application by a trustee in bankruptcy to open the proceeding on the-ground that it had been closed before the estate had been fully administered is not a “suit,” within Bankr. Act July 1, 1898, c. 541, § lid, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426], providing that suits shall not be brought by or against a trustee of a bankrupt estate subsequent to two-years after the estate is closed.</p> <p>8. Same — Rights of Trustee.</p> <p>Where a bankrupt’s estate has been closed and the bankrupt discharged, the former trustee’s office is thereby terminated, and he has no standing to apply to have the estate reopened as not fully administered.</p> <p>4. Same — Rights of Creditors — Proof of Claim.</p> <p>Where, in a bankruptcy proceeding, the proof of the debt of a creditor was tendered and filed in the office of the clerk of the court after the case-was closed in the referee’s office, but before the bankrupt was dis- • charged, and remained in that condition without ever being formally al-lowed by the court or referee, there being no assets applicable to creditors, such proof was prima facie sufficient to entitle the creditor to apply to have the estate reopened on the ground that the bankrupt had fraudulently concealed assets applicable to creditors.</p> <p>5. Same.</p> <p>Where claims of creditors were not proved within the time required by Bankr. Act, July 1, 1898, c. 541, § 57, cl. “n,” 30 Stat. 561 [U. S. Comp. St. 1901, p. 8444], such creditors had no standing to apply to have the bankrupt’s estate reopened on the ground that he had fraudulently concealed assets applicable to creditors.</p> <p>ft. Same — Evidence.</p> <p>A bankrupt’s father died October 19, 1899, and by his will, which was probated October 23d, he left to the bankrupt the income of a trust fund valued at $7,600. The bankrupt transferred his interest in the fund to O. on October 27th, having received from the latter a loan of not to exceed $1,000. A bankruptcy petition was filed November 3, 1899, and a. discharge granted February 10, 1900, after which O. transferred the trust fund to the bankrupt’s wife in consideration of $300, which was the balance due to O. from her husband on the loan, and this amount was raised by mortgaging the bankrupt’s homestead, which was devised to him for life by his father. Held, that such facts warranted the granting of a petition to reopen the case on the ground that his failure to disclose such trust fund in his schedules amounted to a fraudulent concealment of the assets.</p>

<p>f. Peonage — Abolition—Statutes—Application.</p> <p>■ Rev..St. § 5526 [U. S. Comp. St. 1901, p. 3715], abolishing and forever, prohibiting the system of peonage in the territory of New Mexico and, o.ther. parts of the United States, has no application to the state of' Georgia, in which such system never existed.</p> <p>' 2. Same — Indictment.</p> <p>An indictment charging defendants with restraining certain named persons of African descent of their personal liberty, and with compelling them to render service for defendants against their will, did not state an offense within Rev. St. § 5526 [U. S. Gomp. St. 1901, p. 3715], abolishing and prohibiting the system of peonage in New Mexico and elsewhere in the United States.</p>

<p>1. Conspiracy — Personal Liberty — Deprivation—Federal Jurisdiction.</p> <p>Where an indictment charged that defendants conspired to injure, oppress, threaten, and intimidate B., a citizen of the United States, in the free exercise of his privilege of contracting and being contracted with, Ms right of personal security and personal liberty, and the overt act charged was the seizing of B., the placing of handcuffs on Mm, and compelling him, by force and against his will, to enter into a pretended contract to work for a long period of time for the defendant, the indictment did not state an offense within the jurisdiction of the federal courts, under Rev. St. § 550S [U. S. Comp. St. 1901, p. 3712], prohibiting conspiracy to injure or intimidate citizens in the exercise of civil rights, the citizen’s right to personal liberty and security being within the primary jurisdiction of the state.</p>

This is an appeal from a decree which dismissed a bill in equity exhibited by Albert TJ.

<p>1. Shipping — Construction of Charter Party — Inability to Leave Port with Full Cargo — Dead Freight.</p> <p>A charter party fixed tbe port of loading on a South American river, and the amount of cargo at 2,000 tons, 10 per cent, more or less at the vessel’s option. After reaching the port she elected to take 2,200 tons, but, when 1,900 had been loaded, she refused to load more because if she did so she would be unable to cross a bar in tbe river 50 miles below. Tbe charter party required the charterer to furnish the cargo • “within reach of the ship’s tackles at ports of loading and discharge where steamer can always safely lie afloat; lighterage, if any, to be at expense and risk of cargo.” Both parties had knowledge of the bars and of the stage of water usually prevailing at that season. Meld, that such provision was not equivalent to one that the vessel should go to the specified port, or “as near as she can safely get,” and could not be construed to require the charterer to lighter the additional 300 tons of cargo to the steamer after she had passed the bar, and that it was not liable for dead freight because of its refusal to do so.</p>

<p>1. Life Insurance — Massachusetts Statute — Requiring Correct Copy of Application to be Attached to Policy.</p> <p>tinder the statute of Massachusetts (Acts 1894, c. 522, p. 718, § 73) providing that, unless a correct copy of the explication is attached to a life insurance policy, it shall not be considered a part of such policy or received in evidence, an application cannot be adriútted in evidence to sustain a defense to an action on the policy where the cox>y entirely omitted the answer of the applicant to a question respecting the health and age at the time of death of an ancestor; such omission being of a matter of substance.</p> <p>2. Federal Courts — Rules of Evidence — Following State Decisions.</p> <p>In construing such statute the Supreme Judicial Court of the state laid down the rule that where, under its terms, the application was not itself admissible in evidence, the company could not be permitted to show by oral evidence statements made by the insured, which were afterward incorporated into the application, in support of a defense of fraud, and such rule has been acquiesced iu without question for a number of years. Held that, without regard to its correctness, such rule was binding on the federal courts sitting within the state in actions at law of the same character.</p> <p>¶ 2. State laws as rules of decision in federal .courts, see notes to Griffin v. Overman Wheel Go., 9 O. O. A. 548; Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 O. O. A. 553.</p> <p>Conformity of practice in federal courts,to that in stale courts, see note to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C, A. 392.</p>

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

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

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

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a final decree of the District Court, Southern District of New York, condemning each of the tugs Teaser and Transfer No. 14 to pay one-half of libelant’s damages resulting from a collision between its barge David Wallace in tow of the Teaser and a car float in tow of the Transfer No. 14 on March 25, 1901.</p>

This action is brought by the plaintiff to recover damages sustained by reason of the death of her intestate, caused, as alleged, by the wrongful acts of the defendant at a street crossing of its railway. The negligence charged was that the bell of a locomotive engine approaching and crossing South Halsted street was not rung or its whistle sounded, that no headlight was ' exhibited, and that the gates were not lowered. There was a plea of the general issue.

<p>1. Master 'and Servant — Injuries to Servant — Defective Appliances.</p> <p>Plaintiff, a stove tender in defendant steelworks, was burned by molten iron from a blast furnace, caused by a water block being forced from the wall of the furnace. The block bad become defective on the evening of the previous day, and the superintendent ordered preparations made to remove it. That evening the packing was removed to a depth of 9 or 10 inches, and between 7 and 8 o’clock the next morning the superintendent, though it had been his intention to remove the block when the blast was off the furnace during the 9 o’clock cast, on- his being notified that the water was not running freely through the different blocks, by reason of the strainer being clogged, directed that the block should not he removed until 12 o’clock, and that the water strainer be repaired at the same time. Before noon, and while the blast was still on the furnace, and as certain workmen were preparing to pull out the block, the inside of which had become melted off by reason of the defect in the water apparatus, the block was suddenly forced from the wall by the pressure in the furnace, and plaintiff was burned by the flame and molten material issuing from the aperture. Held that, whether treated as a place at which to work or an appliance with which to work, it was • -the positive duty of the-company to keep the furnace reasonably safe-fob •. .its emplóyés at work about it. For any neglect to do this, the company ' was responsible, as the‘duty could not be delegated.</p> <p>2. Same — Fellow -Seuvahts.</p> <p>Whether the neglect was that of the superintendent or foreman, or a workman, in neither case was the person guilty of negligence a fellow servant of the plaintiff, so as to relieve-the. company of responsibility.</p> <p>3. .Same — Assumption oe Risks.</p> <p>The removal of the water block under the circumstances described was not one of the risks which plaintiff assumed upon entering the employment of the company.</p>

<p>1. Collision — Insufficient Mooring — Contributory Fault.</p> <p>A water boat made fast to the side of a yacht moored in North river to supply her with water at a time when, owing to the ebb tide and floating ice, there was more than ordinary danger. Through the insufficiency of her lines ánd the negligence of her master in leaving her, she broke away, and was carried astern by the tide, and struck and injured the yacht’s launch, which hung in davits about five feet outboard. The owner of the yacht was on board, and observed and spoke of the lightness of the water boat’s lines to hold her under the existing conditions, but went below without moving the launch, which hung a short distance astern of the water boat, and which could readily have been swung inward out of danger. Held, that he was chargeable with negligence contributing to the injury, which required a division of the resulting damages.</p>

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

<p>1. Patents — Infringement—Ironing Machines.</p> <p>The Fay reissued patent, No. 11,664 (original No. 560,816), for machines for ironing the edges of collars and cuffs, and No. 678,949, to the same inventor, for improvements thereon, construed, and held not infringed by the machine of the Rickey patent, No. 660,277; the ironing heads of the Fay patents being circular heads, which revolve, having no equivalent in the Rickey device, which has swinging heads, with fixed eccentric axes.</p> <p>2. Same — Suit for Infringement — Expert Testimony.</p> <p>Where difficult questions of form of operation and equivalency of function between the parts of a patented machine and one alleged to infringe are involved in a suit for infringement, the complainant should give the court the benefit of expert testimony on such questions.</p>

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

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

In Equity. Suit for infringement of letters patent No. 389,435, for a machine for making matches, granted to E. B. Beecher, September 11, 1888. On final hearing.

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

<p>1. Patents — Infringement—Cab Oouumbs.</p> <p>The Coup patent, No. 401.775, for a car coupler, occupies a narrow field, and must be strictly limited in construction, being for an improvement on couplers of the well-known Jaimey type, designed to adapt the same,* after the coupling has been made, to track curvature by means of a pivoted connection between the drawhead and drawbar, which allows the drawhead to “swing freely laterally”; and, since both free and nonfree joints were known in the prior art, the patentee must be held to have adopted the former, and the patent is not infringed by a coupler in which the draw-head, while pivotally connected, does not swing freely, but has its movement restricted by side bars and controlled by springs, which hold it normally in a central position.</p>

<p>1. Patents — Infringement—Waiver ondee New York Statute.</p> <p>Under the city charter (Laws N. Y. 1897, p. 166, c. 378, § 477), which provides that no patent hydrant, valve, or stopcock shall be used by the department; of water supply unless the patentee or owner of said patent shall allow its use by saidMepartment without royalty, the fact that the owner of a patent for a hydrant: made an unsuccessful bid to furnish* said hydrants under a contract with the department does not constitute a waiver or abandonment of his* rights under the patent in favor of the successful bidder.</p> <p>2. Same — Suit fob Infringement — Equity Jurisdiction.</p> <p>That the defendant in a suit for infringement had ceased infringement before the suit was brought does not deprive equity of jurisdiction, whore the defendant denies the validity of the patent, and does not set up that he has abandoned the manufacture and sale of the alleged infringing article, and does not intend further infringement.</p> <p>3. Same — Infringement—Hydrant.</p> <p>The Loetzer patent, No. 631,545, for a hydrant, held not anticipated as to the combination shown, valid, and infringed.</p>

<p>This is an action to restrain the alleged infringement by -defendant of letters patent No. 403,247, dated May 14, 1889, issued to Spencer C. Cary, and assigned to and now owned by the complainant. The bill of complaint alleges that the defendant, without license or allowance, has used and vended, and is using and vending, the said invention-aforesaid set forth and claimed in said letters patent, and threatens to continue so to do in defiance of the complainant’s rights and to its irreparable loss -and injury. The complainant also demands an accounting.</p>

<p>In Equity. Suit for infringement of reissued letters patent No. 12,038, division B (original No. 589,168), for a kinetoscopic: film, granted to Thomas A. Edison September 30, 1902. On demurrer to bill.</p>

<p>In Equity. Suit for infringement of patents. On exceptions to master’s report as to damages and profits.</p>

<p>1. New Trial — Verdict against Weight of Evidence — Prior Decision of Appellate Court.</p> <p>Where a judgment of a Circuit Court, based on a verdict directed by the court, was reversed by the Supreme Court on the ground that under the evidence the question at issue should have been submitted to the jury, the trial court is not warranted, in setting aside a verdict for the same party, found by the jury on a subsequent trial on substantially the same evidence.</p>

At Law. Action to enforce rescission of a contract of life insurance and to .recover payments made thereunder. On motion for judgment for want of sufficient affidavit of defense.

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

<p>Action to recover legacy taxes paid to defendant as collector of internal revenue. On demurrer to plaintiff’s statement of claim.</p>

Action to recover legacy tax paid to defendant as collector of internal revenue. On demurrer to plaintiff’s statement of claim.

In Equity. On the 4th day of May, 1894, the First National Bank of Sedalia, Mo.,' was declared insolvent, and a receiver therefor was appointed by the Comp- • troller of the Currency. On the 13th day of April, 1895, the Comptroller ordered an assessment on the stockholders of the bank of 75 per cent, of the amount of their holdings. The defendant, Arnold, being a stockholder to 'the extent of i£2, , par value, paid said assessment.

<p>Certificate from Referee.</p>

<p>In Bankruptcy. On review of order of referee allowing claim of W. W. & J. R. Watts.</p>

<p>1. Sams — Contract—Breach—Damages—Profits.</p> <p>Where defendant contracted to furnish plaintiff with such fire extinguishers as plaintiff should sell in two states during a certain period, and defendant refused to fill orders for extinguishers until plaintiff had complied with certain unjustifiable conditions, defendant was liable for damages based on the profits which plaintiff might have made on machines actually sold, or for which orders had been actually received, and for such other machines as plaintiff had reasonable expectation that he would be able to dispose of within a reasonable time, taking into consideration plaintiff’s efforts previously made to create a market for the machines.</p> <p>S. Same — New Total — Grounds.</p> <p>Unless in very exceptional eases, a new trial will not be granted on account of propositions which are afterthoughts, or which were.not carefully and properly submitted to the jury during the progress of the trial.</p>

<p>1. BANKRUPTCY — INVOI7ÜNTARY PROCEEDINGS — INDEBTEDNESS OF BANKRUPT.</p> <p>Evidence examined, and held to establish the debt of an alleged bankrupt to the petitioning creditor as claimed.</p>

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

<p>1. Wrongful -Death — Actions—Beneficiaries—Release.</p> <p>Under Code Civ. Proc. N. Y. § 1902, providing- that in an action for wrongful death the damages recoverable are exclusively for the benefit of the decedent’s husband or wife and next of kin, a widow was entitled to release a cause of action for wrongful killing of her husband prior to her appointment as her husband’s administratrix.</p>

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

<p>1. Action — In Forma Pauperis — Dismissal.</p> <p>An action is “brought under” section 4 of the Act July 20, 1892, e. 209, 27 Stat. 252 [U. S. Comp. St. 1901, p. 707], authorizing one to commence and prosecute an action without prepayment of costs or fees, or the giving of security therefor, on filing in the court an affidavit of poverty, when the filing of the writ, declaration, and affidavit is simultaneous.</p> <p>2. Same — Frivolousness.</p> <p>Act July 20, 1892, c. 209, § 4, 27 Stat. 252 [Ü. S. Comp. St. 1901, p. 707], providing that the court may dismiss a cause brought under the act if satisfied that the alleged cause of action is frivolous, construed, and applied to the circumstances of the case.</p> <p>¶ 2? SeeWoods wBailey (C. C.) 113 Fed. 390, 122 Fed. 907.</p>

<p>1. Lease — Covenants—Qtjiet Enjoyment — Breach—Pleading.</p> <p>Where, in an action for breach of a covenant of quiet enjoyment in a lease, the complaint averred that the city of New York took possession of the premises under a paramount title, but alleged no facts in support of such averment, except that the property was taken in condemnation proceedings by the rapid transit commissioners, such allegation was a mere legal conclusion, and would therefore be disregarded.</p> <p>2. Same — Eminent Domain.</p> <p>A covenant of quiet enjoyment in a lease is not broken by the entry of the city in the exercise of its power of eminent domain.</p> <p>3. Same — Construction.</p> <p>Where a covenant in a lease obligated the lessor to secure the lessee in the quiet enjoyment of the premises against the lessor’s own acts, or the acts of his heirs, executors, administrators, or assigns, “or any other persons,” the words “any other persons” should be construed to refer to other persons deriving their right through the lessor or by a paramount title.</p>

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

<p>1. Federal Courts — Binding Effect of State Decision — Creation of Testamentary Trust.</p> <p>While the federal courts adopt the local law of real property, as ascertained by the decisions of the state courts, including that pertaining to the construction of wills, such decisions merely afford a guide in applying the general rule that the intention 'of the testator is to he carried out to the solution of the question whether a will creates, by way of wish or recommendation, a testamentary trust.</p> <p>¶ 1. 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>2. Testamentary Trust — Rui.es of Construction.</p> <p>, Language not imperative in form, hut which appears to he imperative in its real meaning, as intended by a testator, will create a testamentary trust, while language used by way of suggestion, advice, etc., with a view to influence, hut not to direct the discretion of the devisee, will not raise a trust.</p> <p>3. Same — Construction of Wilt..</p> <p>A testator left his property to his wife and daughter; the will reciting that his mother was living, and dependent upon her children, and he therefore requested Ills wife to pay her such sums as might be requisite-for her comfort, etc. The will then added, “and it is my wish and expectation that when my wife J. shall make her will disposing of the property left her by me that she will generously remember the children of my deceased "brother W. and such others as she may choose.” Held not to create a trust in favor of the children of the deceased brother.</p>

<p>1, Bill of Review — Partnership—Dissolution—Death of Partner — Parties.</p> <p>Where an original hill in equity -was brought ágainst a firm, and after decree dismissing the hill the firm was dissolved by the death of a nonresident partner, the personal representatives of such partner, who were not within the jurisdiction of the court, were not indispensable parties to a bill of review.</p>

<p>1. Equity Jurisdiction — Adequate Remedy at Law — Avoiding Instrument for Fraud.</p> <p>A receipt in lull, in the nature of a release, but not under seal, may be avoided at law in a federal court for fraud inducing the settlement pursuant to which it was given, and does not entitle the maker to resort to equity for its cancellation.</p>

<p>1. Collision — Tugs with Tows Meeting — Negligent Navigation of Tug. <■</p> <p>Where two meeting tugs, each having two scows in tow tandem, each' ported and continued hearing off to starboard until they were opposite each other, at a distance apart of 250 to 300 feet, when one, whose rear tow was about 2É0 fathoms behind, straightened out on her former course, she was in fault for a collision between such rear tow and one' of those of the other tug, it being her duty, owing to her long hawsers, to continue her starboard course until the tows had safely passed.</p> <p>2. Same — Navigation of Channels — Violation of Rules.</p> <p>Article 25 of the1 inland navigation rules (Act June 7, 1897, c. 4, 30 Stat. 96 [U. S. Comp. St. 1901, p. 2883]), which provides that “in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of such vessel,” applies to navigation in the Upper Bay of New York, between Bay Ridge and Tompkinsville, where, owing to the anchorage grounds on either side, the fairway or channel between, safely navigable for tugs with tows, is only about half a mile wide; and a tug with tows passing down on the left-hand side, when it was safe and practicable to keep to the other side, is in fault for a collision between one of her tows and that of an incoming tug, although her navigation was in other respects without fault.</p>

<p>1. Collision — Steamer and Meeting Tow — Negligent Navigation 3by Steamer.</p> <p>A steamer going up the Hudson river in the night, which failed to see the lights on a meeting tug with a tow, and went ahead at full speed immediately before collision with one of the boats in tow, was in fault for such collision, whether the weather was foggy, as claimed by her, or merely hazy, as claimed by the tug. In the one case she was in fault for going at too high speed, and in the other for not seeing the lights.</p> <p>2. Same — Fault oe Tug — Violation or Rules.</p> <p>The collision having occurred on the oast side of the river, the tug was in fault for failing to keep to the right-hand side of the fairway, as required by article 25 of the inland navigation rules (Act Juno 7, 1897, c. 4, 30 Stat. 96 IH. S. Comp. St. 1901, p. 28831). in the absence of pro'of of special circumstances rendering it unsafe or impracticable to comply with such requirement.</p>

<p>1. Shipping — Injury to Scow Through Breaking Adrift in Storm — Inevita- . bus Accident.</p> <p>Libelants contracted to purchase from tlie city of New York a few scow loads of street sweepings for use in filling in at a wharf, the price to include towing- the boats to and from ' the wharf and unloading. While one of the scows, in charge of a .master employed by the city, was lying at the wharf, which under ordinary circumstances was a safe place, a storm of unusual severity suddenly came up, and she broke her lines, and was drifted on shore and injured. Held, that libelants were chargeable, at most, with only ordinary care for the protection of the boats, and were not liable for the loss because they failed to move the scow to a safer place, which they were unable to do after the necessity. for greater protection appeared, but that the loss must be attributed to inevitable accident.</p>

Action at law by the widow and daughter of a man killed while working in a mine in Idaho against a New York corporation engaged in operating the mine, on the ground of alleged negligence on the part of the employer. Heard on motion to dismiss for want of jurisdiction.

<p>1. Materialman’s Lien — Subcontractor—Waiver.</p> <p>A contractor with the city of New York for the construction of portions of the subway of the Rapid Transit Railroad assigned the money to come to him to a construction company, the agreement providing that the company should pay out of the same all amounts due to subcontractors, and that the subcontractor therefore waived any right to file a lien against any money which might become due from the city, and agreed to look to such moneys for payment as were in the hands of the construction company. The contract between the contractor and a subcontractor provided that the latter should become entitled to payment upon written vouchors certified by the chief engineer of the construction company. Held, that the refusal of the engineer to make the required certificate when the subcontractor became entitled to it did not entitle the subcontractor to avoid the waiver of his statutory lien.</p> <p>2. Same — Equitable Remedy — Adequate Remedy at Law.</p> <p>A contractor with New York Gity for the construction of portion of the subway of the Rapid Transit Railroad assigned the money to become due to him from the city to a construction company under an agreement by which the construction company agreed to pay out of such moneys all amounts due to subcontractors, and which provided that a subcontractor waived any right to file a lien against any money to become due from the city, but agreed to look to the money in the hands of the construction company for payment. Held, that such a subcontractor had an adequate remedy at law by way of action against the contractor and the construction company, either jointly or severally, as the contract might be construed, and therefore could not maintain a suit for equitable relief.</p> <p>S. Same.</p> <p>A contract between a contractor and the city of New York for the construction of portions of the subway of the Rapid Transit Railroad provided that, if any lien had been filed against the contractor or railroad against the amount payable under the contract, an amount reasonably sufficient to pay and discharge such lien and to pay the'costs of foreclosure should be retained by the comptroller until the lien was discharged or secured;- and that, if the lien should be foreclosed, the comptroller might pay the amount found due to the person entitled, such payment to he deemed a payment to the contractor, etc. A subcontractor waived his right to a statutory lien. .Held, that the above provision gave the subcontractor no right of action against the city éither at law or in equity.</p>

<p>1. Trusts — Action against Trustee — Pleading.</p> <p>Under the Massachusetts practice a trustee cannot be sued at law as such, but the action must be against him as an individual, and his description in the writ and declaration as trustee is surplusage.</p> <p>2. National Banks — Assessment against Stockholders — Action against Trustee. •</p> <p>Where the question of- the liability of a trust estate for an assessment on shares of an insolvent national bank held by the trustee depends upon the power of the trustee, under the terms of the trust, to purchase such shares for the estate, such question cannot be determined in an action at law by the bank receiver against the stockholder, though it is alleged that he holds the stock as trustee.</p> <p>¶2. Enforcement of statutory liability of stockholders in national banks, see note to Williamson v. Bank, 52 C. C. A. 6.</p>

<p>1. Bankkui'toy — building and Loan Associations — Adjudication.</p> <p>A building and loan association organized to accumulate a fund from contributions of its members, from which loans were to be made to assist members in purchase of real estate, the profits of which business were divided among its members, is not a corporation engaged principally in trading or mercantile pursuits, and therefore cannot be adjudged an involuntary bankrupt, within Bankr. Act 1898, limiting corporations which may be forced into bankruptcy to such as are engaged principally in manufacturing, trading, printing, publishing, mining, or mercantile pursuits.</p> <p>¶ 1. What persons aro subject to bankruptcy laws, soe note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.</p>

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

<p>Thomas H. Trosper was indicted for abstracting a package containing an article of value from the United States mails, and after conviction moved in arrest of judgment on the ground that the indictment did not state an offense under Rev. St. § 5469 [U. S. Comp. St. 1901, p. 3692]. .</p> <p>The charging part of the indictment is substantially as follows: That Thomas H. Trosper, late of the Northern Division of the Southern District of California, on the twelfth day of September, A. D. 1903, in the city of Fresno, county of Fresno, within the Northern Division of the Southern District of California, and within the jurisdiction of the court, feloniously did steal and take from out of a mail of the said United States a certain package containing an. article of value, to wit, a package sent from the post office at San Francisco, California, on ‘the eleventh day of’September, A. D. 1903, by D. C. IHeger, directed to.the Kohler Uaundry at Fresno, California, the said package then and there containing a certain shirt of the value of $2, lawful money of the United States. Contrary, etc.</p>

<p>I. Officers — Impersonation—Wrongfully Obtaining Money — Evidence.'</p> <p>Defendant, while stopping at prosecutor’s hotel as. a guest, falsely represented himself to prosecutor as a secret service operative in the employ of the government, and exhibited to prosecutor a metal badge inscribed, “Secret. Service, U. S.” Ten months thereafter defendant -returned and represented himself as a traveling salesman, spending several days at the hotel. Prosecutor believed defendant to be a. Freemason, and took special care of him during sickness on that account, after which defendant presented a check which he alleged had been signed by his employer in payment of his salary, and obtained $70 thereon from pros,ecutor. The check vras drawn on a bank which did not exist, was returned unpaid, and prosecutor declared that he cashed the check because he continued to believe defendant -was a secret service operative. Held, that such facts were insufficient to sustain a conviction for pretending to be an ’employé of the United States, and as such knowingly and feloniously obtaining from another a sum of money, etc., prohibited by Act Gong. April 18, 1884 (2S Stat. 11, c. 26: 1 Supp. Rev. St. 425 [U. S. Comp. St. 1901, p. 3679]).</p>

<p>In Admiralty. Suit for injury of tow.</p>

<p>1. Corporations — Stock—Sale—Statute of Frauds.</p> <p>Where defendants contracted to purchase all the stock of a corporation for $160,000, and $25,000 of this sum was paid, it being understood that the seller should hold the stock as collateral for the unpaid price, the contract was not within the statute of frauds.</p> <p>2. Same — Letters—Memorandum.</p> <p>Where an oral contract for the sale of corporate stock was confirmed by letters subsequently written between the parties which disclosed all ' the terms of the contract, such letters constituted, a sufficient memorandum to satisfy the statute of frauds.</p> <p>¶ 2. See Frauds, Statute of, vol. 23, Cent. Dig. § 199.</p> <p>3. Same — Construction—Forfeiture.</p> <p>A letter confirming an offer for the sale of stock required a payment of $25,000 in cash to he regarded as a forfeiture in case the transaction was not completed by payment of the balance within 90 days. The buyer replied that its attorney advised it that it was without power to pay any money as a forfeiture, hut that it would execute .a collateral note for the balance, the result of which would be tbe equivalent of .the sellers suggestion of -forfeiture; after which the provision for forfeiture was dropped, and on payment of the $25,000- the seller wrote the buyer acknowledging receipt of the amount as the first payment on the purchase, again reciting the terms of the sale.- Held that, though the note was never delivered nor the stock transferred, there was a completed sale thereof, and not a mere option to purchase, with a forfeiture of the $25,000 in case the contract should not he completed.</p>

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

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

<p>■ ’ - At Law. Motion by defendant for judgment upon reserved point 1 notwithstanding the verdict.</p>

<p>1. United States — Bond of Contractor for Public Work — Action for the Use of Subcontractor.</p> <p>Act Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1001, p. 2523], authorizes the bringing of an action on the bond of a contractor for public work in the name of the United States, for the use and benefit of another person, only where such person has supplied the contractor with “labor and materials in the prosecution of the work provided for in s.uch contract,” for which payment has not been made.</p> <p>2. Same — Sufficiency of Complaint.</p> <p>A complaint in an action under- said act is demurrable where it does not set out the bond sued on, or allege that it was conditioned, as therein required, that the contractor should promptly make payments to all persons supplying labor and materials in the prosecution of the work.</p>

<p>Action for Libel. On motion for judgment on demurrer as frivolous.</p>

<p>„■ Application to' require witness to answer certain cross-questions ‘propounded to him during an examination under interference in the "Patent Office. Rev. St. § 4908 [U. S. Comp. St. 1901, p. 3390].</p>

<p>Application of A. Riegelman, importer, to review 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. The decision under review was a short unpublished one. The reasoning and conclusions of the board are more fully stated in a published decision on similar merchandise (In re Van Horne, G. A. 5,144, T. D. 23,746), which is as follows:</p> <p>SOMERVILLE, General Appraiser. The merchandise consists of polished cylinder glass, beveled. It was classified as dutiable at 1he specific rates prescribed in paragraph 102, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, 80 Stat. 157 [II. S. Comp. St. 1901, p. 1634], for “cylinder glass, * * * polished.” and in addition at the rate of 5 per cent, ad valorem, which is provided in paragraph 107 on “cylinder * * * glass, * * * when * * * beveled * :s * or otherwise ornamented or decorated.” The protestants contend that the merchandise is not subject to said additional duty, but only to the rates provided in said paragraph 102.</p> <p>It does not appear what ¡he precise theory of this contention is, unless it is that the cylinder glass referred to in paragraph 107 is the “unpolished, cylinder * * * glass,” included in paragraph 101, Schedule B, § 1, c. 11 (30 Stat. 158 fU. S. Comp. St. 1901, p. 1634]). In our opinion, the provision for “cylinder glass” in paragraph 107 includes both the unpolished and the polished cylinder glass specified in said paragraphs 101 and 102. The same conclusion was reached by the board with reference to similar merchandise imported under the tariff act of 1894, the corresponding provisions of which (paragraphs 91, 92, 97, Schedule B, § 1, c. 849; 28 Btai. 513, 514) are identical in language with those of the tariff act of 1897, which we have cited, above (In re Bomeisler, G. A. 3,115). Said decision was affirmed in effect by the Circuit Court for the Southern District of New York, November 1, 1901, in Bache v. United States (suit 2,686, no opinion). Following the cases cited, we overrule the protests and affirm the decision of the collector.</p> <p>In the Circuit Court much evidence was taken, both by the importer and by the government, on the allegations in the importer’s petition for review that the glass in question was not beveled, and that it was not cylinder glass, within the meaning of said paragraph 102.</p>

<p>Appeal from a Decision of the Board of United States General Appraisers.</p> <p>Application by G. W. Sheldon & Co., importers, to review 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. The merchandise consists of so-called bone size. The Board of General Appraisers found it to be similar in material and texture to glue, and held that it was dutiable as glue by similitude, as classified by tbe collector; this conclusion being in harmony with an earlier published decision of Uie hoard: In re O’Kourke, G. A. 349, T. D. 10,796. Evidence taken in the Circuit Court by the importers showed, however, that the article does not contain glue, while commercial glues contain from 60 to 93 per cent, of .glue or gelatin.</p>

<p>1. SnirriNG — Cargo Burked as Fuel — Liability oe Ship because oe Unseawortiiy Condition.</p> <p>Evidence held to esOiMisli that the failure of a stcamsliip to make her normal speed in a voyage across the Atlantic, and lier increased consumption of coal, by reason of which her supply was exhausted and she burned a part ot' the cargo, was due to her weak and defective boilers, which were 18 years old and leaked, and the foul condition of her bottom, which had not been cleaned for an unusual length of time, which rendered her liable for the cargo consumed, notwithstanding the fact that she obtained surveyors’ certificates of seaworthiness at the beginning of the voyage</p>

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

<p>-3. Criminal Law — Practice oe Federal Courts — Sentence.</p> <p>The rule applied that federal courts, in matters of proceeding on error, follow the rules of the common law, without regard to the practice of the state courts.</p> <p>2. Same — Making and Using False Pension Voucher — Construction of Statute. ■*</p> <p>While Rev. St. § 4746, as amended by Act July 7, 1898, e. 578, 30 Stat. 718 [U. S. Comp. St. 1901, p. 3279], expressly covers the offense of making, or aiding or assisting to make, any false voucher concerning a claim for pension, it does not cover the offense of using such a voucher, which comes within the terms of section 5438 [U. S. Comp. St. 1901, p. 3674], providing that it shall be an offense if any one “makes, uses or causes to be made or used” any false voucher for the purpose of obtaining the payment of a false claim against the United States; and where, as is permissible, an indictment charges defendant with having made and used such a false voucher, it is sustainable under the latter section, and, upon a general verdict of guilty, which is presumed to find true everything alleged, the punishment prescribed by the latter section may be imposed.</p> <p>3. Indictment — Duplicity.</p> <p>In the federal courts, duplicity in an indictment cannot be taken advantage of on either a general demurrer, or a motion in arrest of judgment.</p> <p>4. Pensions — Procurement by Fraud — Legal Proceedings against Pen-</p> <p>sioner.</p> <p>The provision of Act Dec. 21, 1893, c. 3, 28 Stat. 18 [U. S. Comp. St. 1901, p. 3270], that a pension “shall be deemed and held by all officers of the United States to be a vested right in the grantee,” and that payment thereof shall not be withheld or suspended until the Commissioner of Pensions, after a hearing, shall decide to annul or modify the decision by which it was granted, applies only to action by executive officers, and does not affect the right of the United States to proceed through the courts, either civilly or criminally.</p> <p>B. Same — Proof of Granting — Department Records.</p> <p>The records of the Pension Office are admissible In evidence, equally with the certificate issued, to prove the granting of a pension.</p> <p>O. Same — Indictment for Making and Using False Voucher — Description of Certificate.</p> <p>In an indictment charging the defendant with having made and used a voucher to obtain payment of a pension, in which he falsely averred that he was the identical person named in a pension certificate, it is not necessary to set,out snch certificate by its tenor.</p> <p>¶ 1. Sec Courts, vol. 13, Gent. Dig. § 937.</p> <p>7. Indictment — Description of Offense — Use of Participial Form.</p> <p>An indictment for a misdemeanor is not bad because it uses the participial form, as by charging that defendant committed the offense “by then and there executing and presenting” a false voucher to obtain payment of a pension.</p>

<p>1. United States — Suit jby at Common Law — Jurisdiction of District Court.</p> <p>Rev. St. § 503, par. 4 [U. S. Comp. St. 1901, p. 450], confer* on Hie District Court jurisdiction of an action by the United States to recover money fraudulently obtained by defendant in payment of a false claim for a pension.</p> <p>2. Same — Cumulative Remedy Given by Statute.</p> <p>The right of the United States to sue for recovery of money obtained from it by means of a fraudulent claim is one existing at common law, and the remedy by penal suit given by Rev. St. §§ 3490-3494 [U. S. Comí). St. 1901, pp. 2328, 2329], is' cumulative, and not exclusive.</p> <p>3. Federal Courts — Rules oe Evidence — Following State Practice.</p> <p>Tlie present rule in Maine, settled by the later decisions, that in civil suits the fact that the alleged right of recovery is grounded on an act of defendant which constitutes a crime, does not require any different measure of proof from that required in ordinary suits, applied.</p> <p>¶ 3. Federal courts following state practice as to rules of evidence, see note to O'Connell v. Reed, 5 C. C. A. 594.</p>

On October 21, 1898, the parties to this action entered into a written contract, the provisions of which, so far as they are material for consideration herein, are substantially as follows: “(1) That for and in consideration of tlie stun of one hundred and eighty-six thousand two hundred and seventy-two dollars and fifty cents ($18G,-272.00), said party of the second part agrees, obligates and binds himself to equip and construct a complete and perfect system of sewerage for…

Withaup, defendant in the court below, was there tried and convicted upon an indictment charging him with forging upon the back of a pension check the name of the payee, and with uttering the check with the forged indorsement. The check was dated May 14, 1900, and drawn by the pension agent of the United" States at Topeka, Kan., upon the assistant treasurer of the United .States at St. Louis; Bio. Pensions are paid quarterly in February, Blay, August, and November.

Petition for Revision.of Proceedings of the District Court of the United States for the Southern District of Illinois, in Bankruptcy. The bankrupt, on January 2G, 1903, filed her petition in the bankruptcy court for a discharge from her debts.

<p>1. Fraternal Life Insurance — Arbitrary Change oí Contract — Estoppel of Member by Payment of Assessments.</p> <p>A member of a fraternal insurance association, which passed an invalid by-law attempting to arbitrarily reduce the amount payable on the certificates of its members on their death, did not assent to such reduction, nor preclude the beneficiary from' recovering the full amount named in his certificate on his death, by paying the reduced assessments after notice of the adoption of the by-law, where the association refused to receive any larger payments, and where, on making the first payment, he notified the association by letter that he did not ratify or consent to the reduction.</p> <p>2. Sake — Action on Policy — Evidence.</p> <p>Where it was shown that the deceased wrote the letter giving such notice to the association, and made a press copy of the same, which he gave to plaintiff, and there was evidence also tending to show that he mailed the letter with the assessment, and the association admitted the receipt of the assessment, and did not deny the receipt of the letter, it was not error to admit the press copy in evidence; the question whether the original was mailed, or not, being one for the jury.</p> <p>3. Same.</p> <p>á letter written by the secretary of the association to a collector after the by-law went into effect, advising him that the association would not receive assessments in excess of those made under such by-law, and directing him tq return the excess which he had accepted from certain members, was admissible in evidence to show the association’s position, and to excuse the failure of deceased to tender amounts in excess of the assessments required under the bj'-law.</p>

The plaintiff in error was convicted and sentenced to imprisonment at hard labor at the penitentiary at Joliet for a period of two years, upon an indictment found in the District Conrt, charging him with using the mails for the purpose of effecting a fraud, under section 5480, Rev. St. [U. S. Comí). St. 1901, p. 3696]. The indictment charges that Dalton, with one Lonis 13.

<p>Appeal from the District Court of the United States for the Southern District of Illinois, in Bankruptcy.</p> <p>On February 13, 1903, certain creditors of the firm of L. Stein & Co., a co-partnership located at Quincy, III., and composed of Leopold Stein and Albert Stein, the former of whom had his domicile at Quincy and the latter of whom resided in Chicago, filed their petition in involuntary bankruptcy against the copartnership of L. Stein & Co. and against Leopold Stein individually. The petition alleged that the petitioners were creditors of the copartnership to an amount exceeding $2,300, and that on the 24th of December, 1902, the firm, while insolvent, had made certain preferential payments, one of which was to the wife of Leopold Stein. The petition also alleged that on the 20th day of December, 1902, Alb.ert Stein, one of the copartners, was adjudged insane by the county court of Cook county, III., and committed to the Illinois State Hospital for the Insane at Kankakee, and that Max Lindauer was thereafter duly appointed conservator of the estate of Albert Stein, and had qualified and was then acting as such. The petitioners prayed service of their petition with a subpoena upon Leopold Stein and upon Albert Stein and upon the conservator of the estate of Albert Stein, and that the copartnership and Leopold Stein individually might be adjudged to be bankrupt. On February 21, 1903, Albert Stein by his conservator and next friend, and Max Lindauer as conservator of the estate of Albert Stein, severally filed general demurrers to the petition. On June 27, 1903, the demurrers were severally sirstained and the petition dismissed, and from that decree this appeal is prosecuted.</p>

The appeal is from a decree of the Circuit Court, enjoining appellants-from further prosecution of two certain suits in the Circuit Court of Jefferson County, Indiana, and grows out of the following facts : Under the will of John F. Bruning, father of appellant Clara Copeland and appellee William B. Bruning, part of the estate disposed of was devised to William B. Bruning absolutely, and part to him and one Iloruff as trustees for the appellant.

<p>1. Bankruptcy — Exemptions—Manner op Allowance.</p> <p>While the exemptions allowed, a 'bankrupt are those provided for by the statutes of the state, the time and manner of claiming such exemptions, and of awarding them and setting them apart, are regulated by the bankruptcy act.</p> <p>2. Same — Allowing Exemption prom Proceeds op Property.</p> <p>Courts of bankruptcy should enforce "the provisions of the law relating ■ to the exemptions liberally to effectuate their purpose, both in construing the state statutes and in the manner of allowing the exemption; • and although a statute requires a debtor to select the specific personal property he claims as exempt thereunder, a court of bankruptcy is not bound to require such selection, and where it is to the best interest of all concerned, or where, by reason of its being mortgaged, specific property cannot be selected and set apart as exempt, it may properly permit such property to be sold as an entirety by the trustee, and award the bankrupt his exemption from the proceeds.</p>

This cause comes here upon appeal from a decree of the District Court (ii6 Fed. 6o), by which the steamer Manitou was compelled to pay for cargo damaged by steam which entered cargo compartments through pipes of the fire-extinguishing apparatus.

<p>1 Insurance — Policy—Delivery—Burden of Proof.</p> <p>In an action on a life insurance policy, the burden of proving a delivery of the policy after the testimony was all in was still on plaintiff, though she established a prima facie case by proving that the policy, complete in form, came from insured’s custody.</p> <p>2. Same — Evidence.</p> <p>In an action on a life insurance policy, there was no proof of the actual payment of the first premium, and defendant, after plaintiffs introduction of the policy in evidence, introduced a receipt for the policy for “inspection,” signed with insured’s name. Plaintiff, in rebuttal, proved a conversation in which the agent, on the clay of the receipt, stated that he had delivered the policy to insured, and imd in his pocket what was good for the premium; and insured’s administrator, who was familiar with his signature, though he testified that he did not consider the signature to the receipt to he insured’s signature, would not testify that it was not. Held, that the trial court was justified in ruling that the evidence was not sufficient to impeach the receipt, and authorize a finding that the policy had been finally delivered.</p>

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1. Patents — Validity—Double Patenting.</p> <p>Two patents may be for the same invention, although the earlier is for a specific machine, while the later contains broader claims, which embrace both the prior specific machine, and others as well.</p> <p>2. Same — Eeeioct oe Disclatmeb.</p> <p>A patentee cannot patent a structure, and by a disclaimer withdraw the invention which makes tlio structure patentable.</p> <p>3. Same — Elevator-Contboixtng Mechanism.</p> <p>The Bassett patent, No. 453,955, for an elevator-controlling mechanism, claims 1 and 2, if given the broad construction claimed by the patentee, as covering all controlling devices in which a single cable-operating device operates simultaneously upon two cable-sections to pay out one while the other is taken up, is void for double patenting; that being an inherent feature of the device of the prior patent, No. 359,551, to the same patentee.</p>

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

<p>1, Patents — Suit eob Infbinge.vent — Res Judicata.</p> <p>Where a suit for infringement against a dealer in the alleged infringing article was defended by the manufacturer of such article at liis own cost, and on appeal it was adjudged that complainant was not the original inventor, and that his patent was void, such adjudication is a bar to a subsequent suit directly against the manufacturer on the same patent.</p>

<p>At Law. Action for infringement of patent. On demurrer to declaration.</p>

In Equity. This case in its incipient stages bristles with objections upon every step that has been taken by either party. Several matters have been disposed of, and some of them have been deemed of sufficient importance to require a review of the authorities upon the xioints discussed. Miller & Lux v. Hickey et al. (C. C.) 123 Fed. 604. It has now reached a stage, by pleas and demurrers, where the character and sufficiency of the pleadings must be determined.

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

<p>1. Vendos and Purchases — Misrepresentation by Vendor — Right of Purchaser to Relief in Equity.</p> <p>Defendant gave a written option on property owned by him, consisting of a railroad, sawmills, and timber lands, the value of the railroad and mills being largely dependent on the quantity of timber on the lands, which was stated in the option to be “not less than 35,000,000 feet. A representative of complainants, who contemplated buying the option and the-property thereunder, was sent to inspect the timber, and by direction of defendant went to an agent of his, who pointed out the boundaries. Complainants purchased the option and the property in reliance on the statement in the option and the report of their representative. In fact, the boundaries shown by defendant’s agent included land not owned by him, and there was only about 8,500,000 feet of timber on the land actually conveyed, and both defendant and his agent knew there was not the quantity represented. Held, that the doctrine of caveat emptor did not apply, since there was an express warranty and actual and positive fraud on the part of defendant, and tfiat complainants were entitled in equity to set off against notes given for unpaid purchase money the difference between the value of the property had there been the quantity of timber represented and its actual value.</p>

<p>1. Copyright — Forfeiture foe Infringement — Fokm of Action.</p> <p>The action of replevin, as practiced in Pennsylvania, is not an appropriate remedy for enforcing the forfeiture provided by Rev. St. § 4905, as amended in 1895 IU. S. Comp. St. 1901, p. Ü4.14J, relating to infringement of copyrighted maps, prints, etc.</p>

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

Actions at Law for Personal Injuries. On motions by defendants for new trial, and for judgment on reserved point notwithstanding the verdict.

<p>1. Mining Claims — Assessment Work — Performance—Burden of Proof.</p> <p>Where defendant claimed a forfeiture of mining claims for failure of plaintiff to do assessment work required by Rev. St. § 2324 [U. S. Comp. St. 3901, p. 1426], the burden of proof is on defendant.</p> <p>¶ 1. See Mines and Minerals, voi. 34, Cent. Dig. § 101.</p> <p>2. Same —Prima Facie Case.</p> <p>On an issue as to performance of annual assessment work on certain mining claims for the year 1901, it appeared that the property was in litigation between the parties in that year in another state; that a receiver was appointed, and that, at complainant’s request, an order was made authorizing him to borrow $1,500 for the purpose of preserving the property and performing the annual assessment work thereon for that year; that the money was obtained and expended for that purpose, the receiver’s report presented to the court, shov, ng the performance of the work required by law, and an order made ¡proving the report. Held, that such proof, of itself, was sufficient to estamish prima facie that the work was performed.</p> <p>8. Same — Payment of Money.</p> <p>On an issue as to the performance of necessary assessment work on0mining claims, evidence of the amount of money paid for work done, though not conclusive, is admissible as bearing on the claimant’s good faith.</p> <p>4. Same — Evidf.nce.</p> <p>Where a defendant claimed a forfeiture of mining claims for failure of plaintiff to perform assessment work required by Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1420], evidence reviewed, and held insufficient to establish that the work, labor, and expenses incurred were not reasonably worth the amount required to constitute a compliance of the statute.</p>

<p>In Admiralty. Suits for collision. Sur settlement of final decree.</p>

<p>1. Collision — -Steamek and Sailing Vessel Okossing — Inefficient Lookout. Evidence considered, and held to show that a steamship was in fault for a collision with a crossing schooner at sea, in the night, for failing to maintain an efficient lookout.</p>

<p>1. Bankruptcy — Determining Validity of Chattel Mortgage — Leave to Sue in State Court.</p> <p>It is within the'discretion of a court of bankruptcy to grant leave to the holder of a chattel mortgage given by a bankrupt to bring suit in a state court thereon, as the proper tribunal to adjudicate the question of its validity under the state laws, and to make the trustee a party defendant therein; but it may reserve the right to the trustee to sell the property in the bankruptcy proceedings, and hold the proceeds to await the decision of the state court.</p>

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

<p>1. Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>In ejectment to recover possession of land, including a millsite with' the mill thereon, the amount in controversy to sustain federal jurisdiction was not the value of defendant’s claim, but was the value of the whole property which plaintiff claimed as described in his complaint.</p> <p>2. Same — Plea in Abatement — Issues.</p> <p>On a plea in abatement on the ground that the amount in controversy was not sufficient to confer federal jurisdiction, defendant’s contention that the dispute involved only his particular interest in certain of the property was unsustainable, since the merits of the ease could not be tried on the hearing of the .plea.</p> <p>3. Same — Burden of Proof.</p> <p>In ejectment to recover certain mining land, etc., the burden of proof to sustain a plea in abatement on the ground that the value of the property is insufficient to confer jurisdiction on the federal courts is on the defendant, and must be established by a preponderance of the evidence.</p> <p>4. Same — Evidence.</p> <p>In an action to recover certain mining land and a stamp mill thereon, evidence- reviewed, and held insufficient to show that the property sued for was not worth $2,000 so as to confer jurisdiction on the federal court.</p> <p>¶ 1. Jurisdiction, of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 O. .0. A. 75; Tennent-Stribling Shoe Co. v. Roper; 36 O. C. A. 459.</p> <p>See Courts, vol. 13, Cent. Dig. § 890.</p>

-. On application by the United States for. a review of the decision of the Board of General Appraisers which reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported 'byj?aul Durand. See G. A. 4531.

The following is the opinion of the Circuit Court, by CDARK, District Judge: In the treatment and disposition of a case like the one at bar, the distinction between the entirely separate legal… Held: and properly, of course, that rights which belong to the individual shareholders and those which belong to the corporation cannot be joined.

This was an action brought in the state court of Mississippi by M. F. Jumper, the plaintiff in error, against the Sovereign Gamp Woodmen of the World, the defendant in error, to recover damages for injuries alleged to have been received by him, as shown in his declaration, which is as follows: “Gomes M. F. Jumper,' plaintiff; by attorney, and complains of the SovereignGamp Woodmen of the World, a foreign corporation doing business and having branches and agents in the state…

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

<p>1. Sale — Contract foe Goods to be'Delivered on Order — Effect of Assignment by Purchaser.</p> <p>■ Where plaintiff, with whom defendant had contracted to furnish a stipulated quantity of pig iron, as ordered during a year, at a stated price, and on a credit of 30 days, afterward sold its works, and assigned the contract to the purchaser, notifying defendant of such fact, its action amounted to a surrender of its right to demand delivery of the iron thereunder, and it was not revested with such right by a reassignment of the contract.</p> <p>2. Same — Action for Breach of Contract — Evidence.</p> <p>An executory agreement by which plaintiff contracted to assign the contract to the purchaser of its plant on condition that defendant would consent thereto was not admissible in evidence in an action by plaintiff for breach of the contract by defendant’s refusal to furnish the iron, where there was'no proof that an absolute sale and assignment of the contract was not thereafter made, as stated in plaintiff’s notice to defendant.</p> <p>3. Appeal — Review—Questions not Presented to Trial Court.</p> <p>To warrant the reversal of a judgment for the exclusion of evidence, the record must show interrogatories and offers which presented to the trial court the question relied upon in the court of review as the ground of reversal.</p>

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

On July 17, 1901, plaintiffs in error began their action at law to recover judgment for certain moneys claimed to have been advanced by them for defendant. An answer was filed, to which a demurrer for want of facts was addressed. On the overruling of the demurrer plaintiffs declined to plead further, and the court entered the judgment to reverse which this writ of error was brought. The complaint, .in 14 paragraphs, and the answer, in 1, occupy 50 odd pages of printed record.

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina, at Greensboro.</p>

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

<p>1. Building Contract — Termination—Completion — Damages — Certificate of Architect.</p> <p>A building contract provided a penalty for delay, authorized the owner to terminate it on failure of the contractor to proceed with diligence, etc., on certificate of the architect, and declared that if terminated and completed by tlie owner the excess paid by the owner to other contractors over the contract price should be paid by the contractor and his surety, and that such expense either for furnishing materials or for finishing the work, and any damage incurred through such default, should be audited and certified by the architect whose certificate should be conclusive on the parties. The contractor did all the work on the building, except that covered by the final payment, when on a certificate of the architect his work was discontinued and the building was completed by the owner. Held, that an action to recover from the contractor and his surety per diem damages for delay, and an excess of expenses over the contract price, was an action for damages under the contract resulting from a violation of its provisions, and hence the owner was not entitled to recover in the absence of proof that the architect had audited and certified the expense and damages incurred and issued a certificate therefor, no reason being given for the omission.</p>

The plaintiffs in error were indicted in the District Court of the United States, for the Southern District of Illinois, under Section 5480 of the Revised Statutes, as amended by the act of March 2, 1889, c. 393, § 1, 25 Stat. 873 [U. S. Comp. St. 190i; p. 3696]. The indictment contained three counts in each of which the scheme to defraud upon which the prosecution was based, is described as follows: 1bat H. Flaelisknmm, It.

The bankrupt, a young man 26 years of age, was born in the city of St; Louis, and, with the exception of occasional absences, lived there all his life. Up to March, 1900, he resided with his brother in the city of St Louis, and was employed by him in a stockyard in that city upon a salary of §50 a month.* In March or April, 1900, he removed his residence, as he claims, to the city of.

<p>, 1. Shipping — Damage to Cargo — Perils of Sea.</p> <p>In seeking to be relieved from liability for damage to cargo in transit, under the exception of perils of the sea, the shipowner, as carrier, is bound to prove that the injuries were the result of such untoward circumstances as could not have been anticipated and guarded against by the exercise of ordinary care and prudence.</p> <p>.. 2. Same — Conditions op Bill oe Lading Requiring Notice of Claim.</p> <p>A provision in a bill of lading that “neither the steamship owners nor their agents nor any of their servants are to be liable * * * for any claim notice of which is mot given before the removal of the goods” is to be construed as requiring such notice to be given before the removal of the goods from the dock, and imposes a valid condition precedent to the right to recover for damage to cargo either against the owners personally, or by a suit in rem, where, under the circumstances of the case, such condition is just and reasonable — as where.the damage was known when the cargo was discharged.</p> <p>• 3. Same — Burden of Proof.</p> <p>When the failure to give such notice is set up by respondent as a defense, the burden rests upon libelant to prove the notice, as a condition to the right of recovery, it being an affirmative 'fact peculiarly within his knowledge.</p> <p>4.’ Same — Waiver.</p> <p>The failure of the owners to insist on the condition in other eases does not constitute a waiver in favor of libelant, where it is not shown that he knew the fact and was misled by it.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York.

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

<p>Appeal from- the .Circuit Court of the United States for the Southern District of New York.</p> <p>• For opinion below, reversing a decision of the Board of General Appraisers (G. A. 4991 — T. D. 23,280) which sustained the action of the collector of the port of New York in assessing duties upon certain merchandise imported under the tariff act of 1894, see 120 Fed. 1015.</p>

<p>1. Bankruptcy — Secured Claims — Present Advances.</p> <p>A mortgage given to secure present «advances, made in good faith, to a person who within four months thereafter becomes a b.ankrupt, is valid.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 259..</p> <p>2. Same — Antecedent Debts.</p> <p>Where, at the time of the execution of a mortgage to secure antecedent debts and a present advancement, the evidence showed that the mortgagor knew it was in failing circumstances, and that, if such fact was not known • to the president of the mortgagee, it was known to other of the mortgagee’s officers, and could easily have been ascertained by the president, and the mortgagor became a bankrupt within four months thereafter, the mortgage could not be sustained as security for the antecedent debts on the ground that it was given under a bona fide belief on the part of both mortgagor and mortgagee that the mortgagor was solvent.</p>

<p>1. Patents. — Anticipation—-Patent fob Ineffective Device.</p> <p>A patent for a device which fails to accomplish the desired end is not an anticipation of one for a device which successfully accomplishes it.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. § 73.</p> <p>2. Same — Ventit.attng Bakkees.</p> <p>The East patent, No. 429,021, for a ventilating barrel, made of a sheet of veneer, the essential feature of which is the making of parallel slits in the veneer lengthwise of the barrel, and terminating at a distance from the ends, leaving the edges of the sheets integral, winch at the. same time enables the barrel to be given the proper curvature throughout its length, and affords ventilation, was not anticipated by anything in the prior art, and, in view of the fact that the barrel of the patent met instant recognition on account of its superior utility and cheapness, and at once went into extensive use, must be conceded patentable invention. Olaims-1 and 3 also held infringed.</p>

<p>1. Patents — Patentable Invention — Combination of Old Elements.</p> <p>While it may not be possible to formulate a definition of a patentable combination of old elements which will in all eases distinguish it from a mere aggregation of the results of the several elements of which it is constituted,: it may be said that the effect produced by the combination must be new and useful, and not such as would suggest itself to the mind of an ordinarily intelligent person, experienced in the art to which the supposed invention relates.</p> <p>2. Same — Pleasure Railways.</p> <p>■ The Hinkle patent, No. 307,942, claim 1, for “a gravity tramway having a convoluted return curved track crossing itself, substantially as described, and for the purpose set forth,” which is to economize space by means .of the convoluted crossing track, is void for lack of patentable invention; also held not infringed, even if Valid.</p> <p>3. Same.</p> <p>The Thompson patent, No. 367,252, claim 5, for an elevated gravity and cable railway, in combination with a car provided with an automatic gripping device, and a cable and motive power, is void for lack of invention ; being merely for an aggregation of old devices, producing no new result by their coaction.</p>

Appellant failed in its suit to hold appellees for infringement of letters patent No. 580,434, April 13, 1893, to Stromberg and Carlson, for an improvement in telephone transmitters.

In Equity. On demurrer to bill. This is a bill in equity to enjoin the defendants from the use of a certain patent, and for an accounting to the complainant.

<p>1. Indictment — Irregularities in Procedure — Sufficiency of Pleas.</p> <p>It is not essentiál that a plea to an indictment in a federal court for irregularities in the procedure should aver that the matters therein set forth were prejudicial,to defendant, which is merely a legal conclusion; but facts showing such prejudice must be averred and proved under Itev. St. § 1025 [U. S. Comp. St. 1901, p. 720], which provides that no indictment’ shall be deemed insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection in. matter of form only which shall not tend to the prejudice of the defendant, and which applies as well to irregularities in procedure as to defects of form in the indictment.</p> <p>2. Grand Jury — Appearance of Government Counsel — Special Assistant-to District Attorney.</p> <p>Under Rev. St. § 363 [U. S. Comp. St. 1901, p. 208], which authorizes the-’ attorney general to appoint attorneys “to assist the District Attorneys in the discharge of their duties,” such assistant may perform any of the? duties which devolve on the District Attorney, and a special assistant ap-’ pointed to assist a District Attorney in a certain class of suits and prose-,cutions in his district may, by direction of the District Attorney, appear before the grand juiy, and assist in the conducting of examinations by that body.</p> <p>3. Same — Secrecy of Proceedings — Authority of Court to Review.</p> <p>A court is not authorized to review the action of a grand jury’at the instance of a defendant against whom an indictment has been returned by investigating the evidence before it either to ascertain whether all of it was competent or whether it was sufficient to justify the finding of the indictment, although it is perhaps competent to inquire into the proceedings of the grand jury under special circumstances where mistake or irregularity is charged.</p> <p>4. Same — Proceduiíe—Province of District Attorney.</p> <p>It is within the province of a district attorney in conducting an examination by a grand jury to explain both his case and the law to the jurors, reserving to them the right, when in doubt, to call upon the court.</p> <p>¶ 4. See Grand Jury, vol. 24, Cent. Dig. § 73.</p> <p>5. Same.</p> <p>The conduct of proceedings before a grand jury by an assistant district attorney considered, and Jield not such as to affect the validity of indictments returned.</p>

<p>1. Actions — Remo vai^ to Federal Court — Witnesses—Examination before Trial — Objections—Waiver.</p> <p>Suit was brought against defendant in the state courts of Missouri, and notice was given of the taking of the depositions of certain witnesses before trial, and subpoenas for such witnesses were duly issued and served. Defendant then removed the case to the federal court, and after removal applied for the appointment oí a special commissioner before whom such witnesses might be examined, as authorized by Rev. St. Mo. 1899, § 2883. The federal court made such appointment under Act Cong. March 9, 1892, c. 14 27 Stat. 7 [U. S. Comí). St. 1001, p. (¡64], making it lawful to take depositions for nse in the federal court in the mode proscribed by the laws of the state. Held, that defendant, having itself applied for (lie appointment of the commissioner, waived its right to object that inasmuch as the witnesses intended to remain in St. Louis, and were not aged or in poor health, conditions prescribed by Rev. St. U. S. §§ 861, 863, 866 [U. S. Comp. St. 1901, pp. 661, 663], as conditions precedent to the taking of proof to be used in the federal courts in advance of the trial, did not obtain, and that the witnesses were not therefore required to appear and testify before the commissioner.</p> <p>2. Same.</p> <p>Defendant, having consented that the removal of the cause to the federal court should not interrupt the taking of the depositions then in progress, was limited to its right to object to the testimony when introduced on the trial, on the ground that inasmuch as the witnesses were not under disability, or had not gone out of the United States, or a greater distance than 100 miles from the place of trial, as prescribed by sections 8(51, 863, 8(55, Rev. St. U. S. [U. S. Comp. St. 1901, pp. (¡61, 063], their depositions were inadmissible.</p> <p>3. Same — Special Commissioner — Attendance of Witnesses — Enforcement —Attachment—Powers.</p> <p>Where, prior to the removal of a cause to the federal court, notice of the taking of depositions of witnesses before trial, as authorized by Rev. St. Mo. 1899, § 2883, was given, and after removal a special commissioner was appointed by the federal court to take such testimony, as authorized by Act Cong. March 9, 1892, c. 14, 27 Stat. 7 [U. S. Comp. St. 1901, p. 6(54], the commissioner was authorized to enforce the attendance of the witnesses by attachment under the authority conferred by the state statute.</p> <p>4. Same — Dedimus Potestatem.</p> <p>An application for a dedimus potestatem to take testimony before trial alleged that the action was to recover damages for the negligent death of plaintiffs’ father, and that plaintiffs were nonresidents and minors; that the negligence alleged consisted in defendant’s failure to instruct deceased regarding the dangers of his employment, he being ignorant and illiterate, etc.; that the only persons who could give information as to decedent’s death, and the rules and regulations under which decedent’s business was conducted at the time, were persons in defendant’s employ, and that the truth of the allegations of plaintiffs’ complaint must necessarily Be established by the testimony of defendant’s servants; that defendant has refused to permit plaintiffs’ representative to enter its works and examine the place of the accident, and that at the inquest over deceased’s remains five eyewitnesses testified, two of whom, since the accident, had left the state: that plaintiffs are unable to ascertain their whereabouts'or that of another of such eyewitnesses; and that plaintiffs verily believe there is danger of- losing the testimony of other important witnesses through death, disease, or accident. Held, that such allegations were sufficient to entitle plaintiffs to the relief demanded under Rev. St. U. S. § 866 [U. S. •Comp. St. 1901, p. 663], authorizing the taking of depositions of witnesses in order to prevent a failure or delay of justice.</p> <p>5. Same — Statutes—Construction.</p> <p>Rev. St. TJ. S. § 861 [U. S. Comp. St. 1901, p. 661], declares that the mode of proof in the trial of actions at law shall be by oral testimony and examination of witnesses in open court, excepting as thereafter provided, and sections 863, 866 [U. S. Comp. St. 1901, pp. 661, 663], declare that unless a witness lives at a greater distance from the place of trial than 100 miles, or is bound on a voyage at sea, is about to go out of the United States, or is old and infirm, his deposition cannot be taken unless necessary to prevent a failure or delay of justice. Held, that Act Cong. March 9, 1892, e. 14, 27 Stat. 7 [U. S. Comp. St. 1901, p. 664], making it lawful to take depositions for use in the federal courts “in the mode prescribed by the laws of the state,” relates merely to the “mode of taking testimony,” and does not authorize the use of depositions of witnesses taken before trial, in the federal court, except on a showing of the circumstances prescribed by sections 863, 866.</p> <p>5. Conformity of practice in common-law actions to that in state courts, see notes to O’Connell v. Reed, 5 O. C. A. 594; Nederland Rife Ins. Co. v. Hall, 27 C. C. A. 392. . . ........</p>

<p>1. Bankrupt — Bankrupt’s Property — Recovery—Summary Proceeding — Jurisdiction.</p> <p>Where a third person claims property alleged to belong to a bankrupt, a court of bankruptcy has only jurisdiction to inquire summarily as to whether the property is held by the person in possession as the bankrupt’s agent, or mere representative; and if, on such inquiry, the court is satisfied that a real adverse claim exists, such claim must be determined in a plenary suit in the state or federal court</p> <p>2. Same — Jurisdiction—Consent.</p> <p>Bankr. Act Feb. 5, 1903, e. 487, § 8, el. “b,” 32 Stat. 798 [U. S. Comp. St. Supp. 1903, p. 413], providing that suits by trustees shall only be brought or prosecuted in the court where the bankrupt whose estate is being administered by such trustees might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except shits for the recovery of property, under section 60, subd. “b,” and section 67, subd. “e,” applies only to plenary actions by trustees or a receiver, and does not authorize a third party, claiming property alleged to belong to the bankrupt; adversely, to confer jurisdiction on the court of bankruptcy by consent, to determine such adverse claim in a summary proceeding after the court had determined that the claimant was not a mere representative of the Bankrupt.</p>

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

<p>At Law. " :On motion for judgment for want of Sufficient affidavit of defense.</p>

<p>In Equity. On motion for a preliminary injunction to restrain the diversion of wajter from the San Joaquin river.</p>

<p>1. Admiralty Jurisdiction — Maritime Cause oe Action — Suit against Insurance Agent.</p> <p>A court of admiralty is without jurisdiction of an action against an' agent who issued a policy of marine insurance, brought under Act Pa. May 1, 1870 (P. L. 60) § 48, which provides that the agent of any foreign company which does not comply with the laws of the state shall be personally liable “on all contracts of insurance” made by him -on behalf of such company. Such an action is not one on contract, but one t<5 recover statutory damages for a tort committed in violating the law, and imposed for the benefit of the person injured, and is not maritime.</p> <p>¶ 1. Admiralty jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 O. C. A. 347; Boutin v. Rudd, 27 O. O. A. 530.</p> <p>2. Same — Dismissal—Costs.</p> <p>On the dismissal of a suit in admiralty because the cause of action is not within the admiralty jurisdiction, the court has no power to award costs.</p> <p>¶ 2. See Admiralty, vol. 1, Cent. Dig. § 807.</p>

<p>Application. of Lawrence, Son &. Gerrish, importers, to review a decision of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York.</p>

<p>1. Customs Duties — Fobfeitube — Classification — Dbilled Diamonds — Bout.</p> <p>On the trial for forfeiture of certain diamonds of an inferior quality, and of the variety commonly called “bort,” which had been advanced in condition by being drilled, the disposition of the ease turned on whether the articles were free of duty under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 435, 30 Stat. 192 [U. S. Comp. St. 1001, p. 1676], relating to “diamonds * * * not advanced in condition,” etc., “including * * * bort.” EelS, that the terms of limitation following the provision for diamonds do not relate to the provision for bort, and that the merchandise was accordingly free of duty.</p>

In Bankruptcy. On question certified by referee. The question as to what is a reasonable allowance as an attorney’s fee arises upon the certificate of the referee. The material facts to be considered are substantially as follows: Lang, the bankrupt, being insolvent employed Heiley, McBride & Watson, as attorneys, to prepare and file, under the laws of the state, a deed of general assignment for the benefit of his creditors.

<p>1. Marine Insurance — Amount oe Insurance — Claims Paid — Deduction.</p> <p>A tug, insured against injuries to other vessels, injured a schooner, whereupon the insurer demanded that the liability be determined by a suit at law, as authorized by the policy. During the pendency of such suit the tug injured a barge, for which the insurer admitted liability, and directed settlement on the best terms possible. Before the termination of the suit for injuries to the schooner the tug owners paid the owners of the barge $543.93 on account of the injuries to the barge, and thereafter the suit for injuries to the schooner was decided in its favor, and the insurers paid $1,310.57 under the policy as its proportion of the1 liability for injuries to the schooner,-after which the tug owners paid to the owners of the barge $1,715.21 additional, in final settlement. Hel&x that under a clause in the policy providing that all claims paid thereunder should reduce any further liability thereunder to the extent of the sumá so paid, unless the amount was made good by additional insurance and an additional premium paid therefor, in the absence of the payment of additional premium the insurer was entitled to have the amount paid on the claim for the schooner deducted from the amount of the policy before determining the amount of its liability for the damages to the barge.</p> <p>2. Same — Arbitrary Deductions — Concurrent Insurance.</p> <p>Where there was concurrent insurance for the same amount covered by defendant’s marine policy, defendant was entitled to deduct $200 from a loss thereunder, under a provision of the policy that in .all cases of claim $200 should be deducted.</p>

<p>'1. Bankruptcy — Effect of Adjudication — Subsequent Seizure of Property by Third Person.</p> <p>An adjudication of bankruptcy operates in rem, and is a caveat to all the world, having the effect of an attachment and an injunction. Upon such adjudication the possession of all property then in the peaceable possession of the bankrupt vests in the court of bankruptcy, and a seizure of the property thereafter by a third person, under whatever claim, is an unlawful interference with the-possession of the court, which may compel restoration by an order made' in summary' proceedings; .without regard to the validity of the asserted claim.</p> <p>2. Same — Bight to Possession of Property* — Exclusive Jurisdiction of Bankruptcy Oourt.</p> <p>A state court is without jurisdiction to determine the right to the possession of a bankrupt’s property in a suit instituted after the adjudication, and after such property had-passed into the possession of the court of bankruptcy.</p>

<p>1. Salvage in Case of Fthe — Award for Services to Burning Tug.</p> <p>A tug worth .$15,000. lying in a harbor with several others and tloir tows, on account of bad weather, took Urd in tiie night, and was abandoned by her crew, and cut adrift. Libelant’s tug and another went to her assistance, and succeeded in extinguishing the fire, the service lasting from one to one and a half hours. There was some danger from steam explosions, one having occurred before the salving tugs reached the burning boat. The damage amounted to ¡52,300. Reid that it was a. meritorious salvage service, which entitled libelant and the crew of its tug to an award of $850, to be divided between them.</p> <p>¶ 1. Salvage awards in federal courts, see note to The Laming ton, 30 O. C. A. 280.</p>

<p>1. Admiralty — Firemen—Employment—Services Required.</p> <p>Where firemen employed on a steamer voluntarily. accompanied her after slie was ordered by her owners to the assistance of wrecked coal barges, and their services as firemen of the steamer were not required while the vessel was engaged in raising coal from the barges, and all hands on the steamer worked for several days in raising the sunken coal except the steamer’s engineer and the firemen, who refused to fire the coal digger as directed by the captain, whereupon they were paid off the proportionate amount of their wages due, discharged, and put on shore, and it appeared customary, in cases of trouble, for the entire crew, regardless of position, to assist in saving property, the captain was warranted in requiring the firemen to fire the digger and in discharging them for their refusal.</p>

<p>1. Admiralty — Commissioner—Finding of Fact — Conclusiveness.</p> <p>Where a libel in admiralty is referred to a commissioner, his finding of facts, which are not sustained by the testimony, are not conclusive on the court.</p> <p>2. Same — Shipping Articles — Signing—Effect.</p> <p>Where libelant signed shipping articles he became a member of the vessel’s crew from that time, subject to all penalties imposed on seamen by the maritime law of- the United States.</p> <p>8. Same — Desertion.</p> <p>Where a seaman, after having regularly signed shipping articles, left the ship by permission in the forenoon for a temporary purpose, and was told that the ship would sail for S. at 1 o’clock p. m„ and, though the ship did not sail until 6 o’clock p. m., the seaman at that hour had not returned to the ship, but went to a port to which he knew the ship would not return until after the trade in which the vessel was engaged was over for the season, his wages were subject to forfeiture for desertion, as authorized by Rev. St. § 4596 [U. S. Comp. St. 1901, p. 3113].</p> <p>¶ 1. See Admiralty, vol; 1, Cent. Dig. § 620.</p>

<p>1. Costs — Construction of Order Dividing Costs — Proctors’ Pees.</p> <p>Where libelant was tlie prevailing party in a suit in admiralty, but for equitable reasons tlxe court directed that the costs be divided and paid by the parties in stated proportions, such order should be construed as including the statutory fee for libelant’s proctor, which in ordinary course would have been taxed as costs, but not a fee for respondent’s proctor, which, if taxable under Rev. St. § 824 [U. S. Comp. St. 1991, p. 632], is only so against his own client.</p>

<p>1. Bankruptcy — Proof of Claim — Amendments.</p> <p>A creditor wbo proved a claim against the estate .of a bankrupt partnership, based on a promissory note made by the firm; cannot, by amendment after the expiration of the year allowed for filing claims, add a claim against the estate of one of the partners, based upon his indorse- . ment of the note, which would be to permit the proof of an entirely new claim on a séparate contract, and not an amendment of the prior' proofs.</p>

<p>Í. Shipping — Demurrage—Liability of Consignee.</p> <p>A libel for demurrage, which alleges merely that the goods were consigned to respondent and received by libelant for delivery to him, does not state a cause of action, the rule being that a mere consignee, who is not the shipper or carrier of the goods nor interested therein, is not ordinarily liable for demurrage.</p> <p>¶ 1. Demurrage, see notes to Randall v. Sprague, 21 G. C. A. 337; In re Bggert, 43 C. C. A. 4.</p>

<p>1. Acts off Bankruptcy — Petition—Pleading.</p> <p>A petition in involuntary bankruptcy filed December 2, 1903, averred that two creditors of the defendants had been permitted to obtain a preference by the recovery of judgments, on which executions were issued, and levies made on the bankrupts’ personal property, which they had failed to have vacated at least five days before the sale. The answer averred that the executions, under which a sale had been advertised for December 3d, were stayed on the morning of the 2d, before the petition in bankruptcy was filed, of which the petitioning creditor had several hours’ notice, but that they had declared they would throw defendants into bankruptcy notwithstanding the stay. UeU, that since, on a hearing on the petition and answer, the averments of the answer must he taken as true, the petition should be dismissed.</p>

<p>In Bankruptcy.</p>

<p>In Admiralty. Suit for collision. On settlement of final decree.</p>

<p>Proceedings to Condemn Real Estate for the Use of the United States. On motion of district attorney to dismiss.</p>

.Suit under Rev. St. § 4059 [U. S. Comp. St. 1901, p. 2757]. '. This is a suit brought by the plaintiff against the United States under sec- ' tión 4059, Rev. St. [U. S. Comp.

Application by William F. Allen & Company, importers, to review a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of Philadelphia. Motion to take further testimony.

In the matter of the application of Moorhead Bro. & Co. for a review of the decision of the Board of United States General Appraisers (G. A. 531 x, T. D. 24,324), which affirmed the assessment of duty by the Surveyor of Customs at the port of Pittsburg. Note Milne v. U. S. (C. C.j 115 Fed. 4x0.

Application by George Silva & Co., importers, to review a decision 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. The merchandise in question consisted of peacock feathers, which the board found from the evidence to be'in a crude state, but to be ornamental in that condition.

<p>1. Bantu? ttptoy — Manufacturing Coepoeattons.</p> <p>A corporation engaged in constructing buildings and bridges by contract, furnishing the labor, while others furnish the materials, is a manufacturing corporation, and Subject to be adjudged an involuntary bankrupt, under Bankr. Act 1898, § 4b (Act July 1, 1898, c. 541, 30 Stat. 544 . [ü. S. Comp. St. 1901, p. 3418]).</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to JIattoon Nat. Bank v. First Nat- Bank, 42 C. C. A. 4.</p> <p>2. Same — AprncATioN to Set Aside Adjudication — Laches.</p> <p>Objection to the jurisdiction of the court to adjudge a corporation a bankrupt may be taken after the adjudication has been made, by an application to set it aside, where the want of jurisdiction did not appear from the pleadings, but it should be done promptly after the facts appear from the evidence taken.</p>

<p>1. Carriers--1Transportation oe Soi.diers — Right op United States to Party Rates — -Interstate Commerce Act.</p> <p>The government of the United States, in buying transportation on a railroad for its soldiers, in lots of 10 or more, is not entitled to tlie benefit of a reduced 10-party rate given by the railroad company’s schedule to “theatrical, operatic, or concert companies, hunting and fishing parties, glee clubs, brass or string bands, boat, baseball, polo, or tennis clubs, football teams, and other parties of like character.” Nor does the refusal to give it the same rates constitute an unjust discrimination against it, or subject it to undue prejudice or disadvantage, in violation of the interstate commerce act, where it is shown that the purpose and effect of tlie party rate given by the schedule is to increase the company’s business, and that tickets sold thereunder are closely limited in time, and are paid for in cash in advance, while those furnished to the government are not so limited, are furnished on a requisition, and are only paid for after indefinite delay in the auditing and allowance of the claims by the War and Treasury Departments. In such case the conditions aud circumstances under which the service is rendered are essentially different, and justify the making of different rates.</p>

For former opinion, affirming a decision of the Board of General Appraisers, which reversed the assessment of duty by the collector of customs at the port of Boston, see 121 Fed. 605.

<p>1. Conspiracy — Obstruction of Mails — Indictment.</p> <p>Rev. St. § 5440, as amended by Act May 17, 1879, e. 8, 21 Stat. 4, 1 Supp. Rev. St. 264 [U. S. Comp. St. 1901, p. 3676], provides that if two or more persons conspire either to commit any offense against the United States, or to defraud the United States, etc., and one or more do any act to effect the object of the conspiracy, all shall be liable to a penalty, etc. Section 3905 [U. S. Comp. St. 1901, p. 2716] declares that, if any person shall “knowingly and willfully” obstruct or retard the passage of the mails, he shall for every such offense be punished, etc. Held, that an indictment for conspiracy to commit the offense described in section 3995, which failed to allege that defendants conspired to “knowingly and willfully” obstruct or retard the passage of the mails, in the manner set out, was fatally defective.</p> <p>2. Samis — Other Allegations — Curing Defect.</p> <p>Where an indictment for conspiracy to knowingly and willfully obstruct the passage of the mails, in violation of Rev. St § 5440, as amended by Act May 17, 1879, c. 8, 21 Slat. 4, 1 Supp. Rev. St. 264 [U. S. Comp. St 1901, p. 3676], and section 3995 [U. S. Comp. St. 1901, p. 2716], was defectivo for failure to charge that defendants conspired to “knowingly and willfully” obstruct the mails, the defect was not cured by the allegation that they did “knowingly, unlawfully, and feloniously combine, conspire,” etc., to obstruct the mails, or that the part of the indictment charging the overt act alleged that such act was “knowingly and willfully” committed.</p> <p>Speer, District Judge, dissenting.</p>

<p>1. Federal Courts — Jurisdiction—Allegation of Amount in Controversy.</p> <p>It is not essential that a bill in a federal court should state the amount or value in controversy, if it appears to be within the jurisdictional limit, from the allegations of the bill, or otherwise from the record, or from evidence taken in the case before the hearing of objections to the jurisdiction.</p> <p>¶ 1. Jurisdiction of Circuit Courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>2. Contracts in Partial Restraint of Trade — Validity—Sale of Good Will.</p> <p>A covenant in a contract by which the owners of brickmaking plants conveyed them to a corporation in exchange for its stock, binding the sellers not to engage in competing business within a radius of 50 miles from the place of business of the corporation for a term of 10 years, is valid, and may be enforced in a court of equity by a suit to enjoin its violation.</p> <p>¶ 2. Validity of monopolistic contracts, as affected by public policy, see notes to Chicago, M. & St. P. Ry. Co. V. Wabasb, St. L, & P. Ry. Co., 9C. GA, 666; Cravens v. Carter-Grume Co., 34 C. C. A. 486.</p> <p>3. Same — Law Governing.</p> <p>Such a covenant is personal, and is not brought within the statutes of a state other than that in which the contract was made by the fact that the property sold was situated in such state.</p> <p>4. Monopolies — Anti-Trust Act — Manufacturing Combination.</p> <p>The anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p, 3200]), does not apply to a contract or combination relating to the business of manufacturing within a state.</p> <p>5. Abatement — Pendency of Action in State Court.</p> <p>The pendency of a suit in a state court is not a bar to one on the same cause of action in a federal court</p> <p>V 5. See Abatement and Revival, vol. 1, Cent. Dig. § 87.</p>

... - In Error to the Circuit Court of the United States for.the District of Indiana. . , Plaintiff in error brought its action for damages for the breach of the following alleged contract: “Columbus, Ind.

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

<p>1. Bankruptcy — Firm and Individual Creditors — Land Standing in Name of Partner.</p> <p>As between the creditors of a firm and a member thereof, both adjudged, bankrupt, the firm creditors are entitled to priority in the proceeds of real estate which stood in the name of a partner, but in fact was part of the firm property.</p>

<p>1. BAXKiurPTCY — Priorities—Taxes - -Subrogation.</p> <p>The members of a firm gave a warranty deed for land on which taxes were due. Ten years later, while a member of the firm was a bankrupt, judgment was rendered, in a suit to foreclose the tax lien, against the grantee and each member of the firm, with judgment over in favor of the grantee against the members of the firm. The grantee then paid the judgment. Held, that he became merely a general creditor of the bankrupt, and was not entitled, through subrogation, to priority of payment, under Bankr. Act July 1, 1898, e. 541, § 64a, 30 Stat. 563 [U. S. Comp. St 1901, p. 3447J, providing that taxes owing by the bankrupt to the United States, state,'county, district, or municipality shall be paid prior to dividends to creditors.</p>

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

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

<p>1. Patents — Action fob Infbingement — Limitation.</p> <p>Where plaintiff in an action at law to recover damages and profits for infringement of a patent, in order to bring himself within the terms of Rev. St. § 4921, amended by Act March 3, 1897, c. 391, § 6, 29 Stat 692 (U. S. Comp. St 1901, p. 3395), which gives the right of action, but provides that there shall be no recovery for any infringement committed more than six years before the commencement of the suit or action, alleges that the infringements complained of were committed within six years, it is not necessary that defendant should plead the statute, to entitle him to avail himself of plaintiff’s failure to prove such allegation, but he may do so under the general issue.</p> <p>T1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. G.. 'A. 695.</p>

<p>1. Patents — Infringement.</p> <p>Infringement of a device for regulating the quantities of air and gas respectively admitted to the mixing chamber of a gas engine is not avoided by so changing the mechanism that the quantity of air admitted remains the same while the quantity of gas is variable.</p> <p>2. Same — Device for Regulating Operation of Gas Engines.</p> <p>The Westinghouse and Ruud patent, No. 583,585, for a device for controlling and regulating the operation of gas engines, which may be adjusted at will to admit' different proportions of air and gas to the mixing chamber, and also by means of a governor automatically regulates the quantity of the mixture fed to the engine, was not anticipated and is valid as to claims 12 and 18, but claim 2 was anticipated by the Foulis English patent No. 180 of 1881. Claims 12 and 18 also Jield infringed.</p> <p>3. Same — Right to Injunction — Threatened Infringement.</p> <p>Defendant bought an infringing machine, which it commenced using after suit brought, but with such alterations that it did not infringe. It denied the validity of the patent, however, and throughout the suit asserted its right to use the machine in the manner its construction contemplated, and could have put it in shape for such use in a short time and with little expense. Helé, that complainant was entitled to an injunction •notwithstanding the fact that there had been no actual infringement.</p>

<p>1. Patents — Infringement—Coffee Pot.</p> <p>The Lewis patent, No. 650,129, for a drip coffee pot consisting of two vessels, one adapted to fit over the other, with a strainer between, the whole to be inverted after.the coffee is cooked to permit it to pass through' ■- the strainer, which retains the grounds, construed, and iield not infringed, . conceding it to disclose patentable novelty.</p>

<p>In Equity. On demurrer to the second amended bill.</p>

At Taw. On motions for issue of execution, and counter motion for stay of execution. On the 14 th of February, 1903, W. A. Chapman & Co., who are citizens of Rhode Island, obtained a judgment at law in this court against the Montgomery Water Power Company, a citizen of New Jersey, for $53,000 damages and costs, for which execution was directed to issue.

<p>1. Bankruptcy — Fraudulent Transfers — Vacation — Actions — Federal Courts — Jurisdiction.</p> <p>By the express provisions of Act Cong. Feb. 5, 1903, e. 487, § 16, 32 Stat. 800 LU. ¡3. Comp. St. Supp. 1903, p. 417], Federal District Courts have concurrent jurisdiction with state courts in equity to set aside alleged fraudulent convejanees by a bankrupt made within four months prior to the filing of the bankruptcy petition.</p> <p>2. Same — Bill—Allf.gations of Fraud — Sufficiency.</p> <p>A bill by a bankrupt’s trustee to set aside an alleged fraudulent conveyance of the bankrupt’s assets alleged that just prior to the filing of tlie petition the bankrupt’s chief assets consisted of a stock of merchandise worth <1>C,000; that the stock was fresh, and, though a large part of the purchase price thereof remained unpaid, the bankrupt, while hopelessly insolvent, and known so to be by defendant, sold the stock to defendant for 75 per cent, of the invoice price for the shoes in the ■ stock, 50 per cent, of the invoice price for the millinery, and 70 per cent, of the price for the remainder of the stock, which was greatly below the actual market value of the merchandise; that the sale was conducted at night, with great secrecy, and in the morning, before business hours, the purchaser paid to one of the bankrupts $3,850 before an inventory had been taken, which was so hastily paid that $405.14 thereof had to be subsequently refunded; and that the sale was made to hinder and defraud the bankrupt’s creditors, which was known to defendant. Held, that such allegations charged a fraudulent transfer with sufficient definiteness to withstand a demurrer.</p> <p>3. Same — Generad Demurrer — Answer.</p> <p>Where a bill in equity to set aside an alleged fraudulent transfer of a bankrupt’s assets contained allegations of fraud, a general demurrer not accompanied by an answer denying the fraud would not be allowed.</p> <p>4. Same — Tender or Price.</p> <p>Where suit was brought by a bankrupt’s trustee to set aside an alleged fraudulent conveyance of the bankrupt’s assets, the trustee was not bound to tender the purchaser the amount paid to the bankrupt, as a condition to his right to sue.</p>

<p>Libel in Rem against Prize. On exceptions to report of master fixing compensation to be allowed to officers and others for services rendered in the cause and disbursements made.</p>

<p>1. Prize Cases — Compensation of District Attorney — Construction of Salary Act.</p> <p>Rev. St §1 464.6, 4647 [U. S. Comp. St. 1901, p. 3138], relating to cases of prize, providing that the district attorney and prize commissioners shall be allowed just and suitable compensation for their services in each prize cause, to be determined by the court and paid as costs, and permitting the district attorney to retain “for his services in prize cases” a sum not exceeding $3,000 a year in addition to the maximum compensation allowed to be retained by him by law, or “in addition to any salary lie may receive in lieu of such maximum compensation,” wore not repealed as to the district attorney by Act May 28, 1896, c. 252, 29 Stat. 179 [U. S. Comp. St. 1901, p. 611], providing salaries for such officers, nor is he required by said act to cover the allowances so made him into the treasury. His services in prize causes are in the nature of special services rendered on behalf of both the government and the officers and men of the navy who are entitled to share in the proceeds of the capture, and the court may properly make him suitable allowance therefbr for his services rendered either within or without his district.</p>

<p>1. Shipping — Oral Pledge oe Freight — Validity—Following Fund.</p> <p>A time charterer of two steamships, who rechartered the same for particular voyages, borrowed money from a bank with wbicli to pay charter hire, under an agreement that the freight should stand pledged for its repayment. He indorsed the subcharters to the bank with memoranda of the freights and insurance policies thereon, agreeing that the bank might collect the freight, or that he would do so as its agent. At the end of the voyages he collected the freights, which he deposited in another bank in his own name, and shortly thereafter died, having in the meantime, however, checked out for his own purposes a part of the money. Held, that the pledge, although oral, was valid, and the money, having been collected by him as agent, became a trust fund, which did not lose its identity because deposited by the agent in his own name, nor because of his appropriation of a part thereof, but could be followed and identified as freight money.</p> <p>2. Same — Suit to Enforce Dten.</p> <p>The proper proceeding by the bank to enforce its lien was by a libel in admiralty against the deposit as freight money.</p> <p>3. Same — Appropriation of Trust Fund by Agent — Application of Deposit to Payment of Check.</p> <p>The pledgor drew a check on the deposit to pay charter hire on a third vessel, and before the check was paid he deposited in the same account money received as freight from such vessel. Held, that such deposit should be applied to the payment of the check so far as it would go, leaving the trust fund unimpaired, except to the extent of the difference between the deposit and the check.</p>

• In Bankruptcy. On report of special commissioner, - To the Hon. George O. Holt, United States District Judge: I, Stanley W. Dexter, special commissioner to whom it… Held: construing section 60 of the bankruptcy act, that an agreement by which a firm was to make an advance to a corporation, and should have a lien for ti íe same upon the property of the corporation, is to be treated as of the date when possession was taken, and not when the agreement for the lien was given.

<p>In Admiralty. Suit to recover balance of freight.</p>

<p>1. Mortgages — Foreclosure — Trust Agreements — Enforcement — Evidence.</p> <p>In a suit to enforce an alleged parol agreement by a mortgagor to hold the title of the mortgaged jiroperty, after foreclosure, subject to the mortgagor's right of redemption, after the expiration of the period allowed by law, the mortgagor testified that the agreement was made at a meeting between himself and the mortgagee alone in a certain saloon where the mortgagee stopped for several days, and that the meeting occurred about April 1, 1897. The mortgagee denied making the agreement, or that he was in tlie town or saloon as stated by tbe mortgagor during the spring of 1897, and claimed he was not in such town until the 2d day of July of that year, when he stopped at a different hotel, as was his custom. The mortgagor’s evidence on cross-examination and rebuttal was somewhat contradictory, and was only corroborated by a written contract between tbe parties before the period of redemption had expired, by which the mortgagee agreed to pay the mortgagor a'certa in sum on the redemption and payment of the foreclosure judgment, costs, taxes, etc., and, if the property should not be redeemed, the agreement should be null and void. Held that, since it was more reasonable to infer that such contract referred to the redemption provided'by law than to an agreement to extend the time for redemption, the evidence was insufficient to justify a decree enforcing such alleged parol trust.</p>

<p>1. Monopolies — Anti-Trust Act — Scope.</p> <p>The Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat 209 [TJ. S. Comp. St. 1901, p. 3200]) has no application to a contract by which the stockholders of a corporation engaged in dealing In fish at different places, in consideration of the purchase of the business and good will of the company by another, agreed not to enter into competition with him in such business for the term of 10 years.</p> <p>2. Same — Michigan Statute.</p> <p>The Michigan act of June 23, 1899 (Sess. Laws, 1899, p. 409, No. 255), to prevent trusts and monopolies, is prospective only in its operation, and does not affect a contract made prior to its passage which was valid when made.</p> <p>3. Contract in Partial Restraint of Trade — Validity—Sale of Business</p> <p>and Good Will.</p> <p>A covenant by the stockholders of a corporation which sold its property, business, and good will, that, in consideration of such sale and as an inducement thereto, they would not directly or indirectly engage in the same or like kind of business as that carried on by the company in the same territory or in the immediate vicinity of such territory for 10 years after the sale, rests upon a good consideration and is lawful, and the right of the purchaser to enforce it cannot be affected by the question whether he has conducted the business lawfully since his purchase.</p> <p>¶ 3. Validity of monopolistic contracts as affected by public policy, see notes to Chicago, M. & St. P. Ry. Co. v, Wabash, St. L. & P. Ry. Co., 9 C. C. A. 666; Cravens v. Carter-Grume Co., 34 C. C. A. 486.</p> <p>See Contracts, vol. 11, Cent Dig. § 555.</p> <p>4. Same — Suit to Enforce — Defenses.</p> <p>In a suit to enjoin a defendant from violating a contract by which for a valuable consideration he covenanted not to engage in business for himself or another in competition with that of complainant for a term of years, and to enjoin a eodefendant from employing his services in a competing business, it is no defense that his eodefendant hired him in ignorance of the contract, and will suffer damage if deprived of his services.</p>

<p>1. Desertion — Limitation of Court-Martial — Time of Peace.</p> <p>A soldier who deserted after the signing of the protocol between the United States and Spain, and while a state of peace actually existed, and nothing remained to be done to conclude peace, except the settlement of the details of the treaty, is within Act April 11, 1890, c. 78, 26 Stat. 54 [U. S. Comp. St. 1901, p. 908], providing that no person shall be courtmartialed for desertion in time of peace, and not in the face of an enemy, Committed more than two years before his arraignment therefor; said limitation not to begin till the end of his term of enlistment.</p> <p>2. Same — Jurisdiction—Military Court.</p> <p>'A deserter from the army, who has never been discharged from the service, is still subject to the jurisdiction of a military tribunal, so that,though he may plead the statute of limitations as a defense to a prosecution for desertion, a civil court will not interfere with such a prosecution by a military tribunal before that court has acted on and decided the case.</p>

<p>On motion to set aside summons and dismiss complaint on the ground that the court had no jurisdiction of the action.,</p>

<p>1. Bankruptcy — Seceet Lien — Evidence Considered.</p> <p>Evidence held insufficient to sustain a finding by a referee that a transaction was in fact a sale of goods to the bankrupt with reservation of a lien in tbe seller, and not a consignment, as claimed.</p>

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

In Equity. Bill to restrain the infringement of complainant’s registered trade-mark “Limetta,” and the imitation of complainant’s trade dress, including label, bottle, and capsule. Hearing on motion for injunction pendente lite.

<p>1. Customs Duties — Classification—Wire Article — Switch Board Cable.</p> <p>Held, that a cable used for making connections witb a telepbone switch board, consisting of 64 wires bound together, which, both individually and in the group, are covered with various materials for insulating and waterproofing purposes, is an “article,” within the meaning of the second proviso in paragraph 137, Tariff Act July 24, 1897, e. 11, § 1, Schedule C, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639], relating to “articles manufactured from * * * copper wire,” and is not dutiable under the provision in the same paragraph for “wire not specially provided for, * * * whether uncovered or covered,” nor under paragraph 193 of said act, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645], as a manufacture of metal not specially provided for.</p>

In Bankruptcy. This case comes up to the court upon a petition for review filed by the First National Bank of Cuero, Tex. On January 5, 1900, the bank presented to the referee in bankruptcy its claim of $6,241.05 against the estate of the bankrupts, and the same was duly allowed.

<p>Action by the United States on a distiller’s bond to recover unpaid taxes on spirits removed from a warehouse.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Wage Earner.</p> <p>A man wbo owned a team, wagons, and a plow, with which he worked by the day for different employers as he could obtain work, earning usually from $9 to $15 per week, and working alone when he could not find work for his team, was not an independent contractor, but a wage earner, within the meaning of Bankr. Act July 1, 1898, c. 541, § 4, cl. “b,” 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], and not subject to be adjudged an involuntary bankrupt.</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat Bank v. First Nat Bank, 42 C. C. A. 4.</p>

<p>In Bankruptcy. On question of costs.</p>

<p>1. Corporations — Franchise Tax — Injunction — State Oxxicers — Federal Courts — Jurisdiction.</p> <p>Ky. St. 1903, § 4077 et seq., provides for the imposition of a franchise tax on the intangible property of certain corporations, a part of which is payable directly into the state treasury and the balance made apportionable to certain counties and cities; the value of such 'franchise being fixed by a board consisting of state officers. Section 4084 requires the State Auditor, after 30 days from the valuation of the franchise, to certify to the county clerk of the counties, etc., the portion apportionable to them as therein provided; and section 4091 requires the auditor to give final notice of the tax assessed for state purposes, which becomes due 30 days thereafter, hut the auditor has no authority to coerce the payment of the tax. Held, that where the valuation of a corporation’s franchise had been made by the state board, and the auditor had given final notice thereof before suit was brought against him in his official capacity to restrain the collection of such tax, the bill was not maintainable as to the part of the tax due the state, since as to it the bill was, in effect, against the state, which was not1 subject to suit without its consent under Const. U. S. Amend. 11.</p> <p>2. Same — Multiplicity ox Suits.</p> <p>Where it was alleged that the tax was void, and that, unless restrained, the auditor would certify the tax to the various counties and municipalities in the state, which would result in a multiplicity of suits by defendant to restrain the collection of the tax, the bill was maintainable against the auditor, as an official, to restrain such act.</p> <p>3. Same — Statutes—Constitutional Law — Interstate Commerce.</p> <p>Ky. St. 1903, § 4077 et seq., imposing an alleged franchise tax on corporations which, in effect, is not a franchise tax, hut a tax on the intangible property of the corporation not otherwise taxed, is not unconstitutional in its application to an interstate express company as an unwarrantable interference with interstate commerce.</p> <p>4. Same — Construction.</p> <p>Ky. St. 1903, §§ 4078-A080, making it the duty of corporations mentioned in section 4077 to furnish certain data by which the value of their intangible property may be ascertained for taxation, and declaring that, when the value of the capital stock is ascertained, the value of all tangible property otherwise taxable shall be deducted, is applicable as well to corporations and companies organized under the laws of other states as those existing under the laws of Kentucky.</p> <p>5. Same — Deduction ox Tangible Taxable Property.</p> <p>Under Ky. St. 1903, § 4079, providing that in the determination of the amount of a corporation’s intangible property for franchise taxation the value of all tangible property otherwise taxable shall be deducted from the value of the corporation’s capital stock ascertained by including every element contributing to value, whether tangible or intangible, the tangible taxable property to be deducted is not limited to such as is situated within the state of Kentucky, but includes all tangible property belonging to the corporation wherever located.</p> <p>6. Same — Erroneous Valuation — Remedies.</p> <p>Where it was contended in a suit to restrain the collection of a corporate franchise tax that, if the board of valuation and assessment, in making the assessment in the method pursued in taxing the corporation’s intangible property assessable in the state, followed the statute, the statute waS uncpnstitutional, and that, if they did not follow the statute, the corporation had a remedy' to correct the error, the question was not a mere question of excessive valuation within the exclusive jurisdiction of the board, and' was subject to review by the courts.</p> <p>¶1. Federal jurisdiction of suits against state, see note to 13 C. C. A. 165.</p> <p>7. Same.</p> <p>Where, in determining the value of an express company’s intangible property legally taxable in Kentucky, the board of valuation ignored, in valuing the company’s shares, the existence of intangible property outside qf Kentucky, consisting of an outside investment of surplus earnings, Which the company offered to prove was not used in, and did not constitute a part of, its general express business, which investment consisted of railroad bonds, etc., actually held in New York, the valuation was erroneous.</p> <p>8. Same.</p> <p>An express company having accumulated a surplus of more than $12,-000,000, separated such amount from its business, and invested it in bonds, stock, etc., which the company transferred to a trust company in New York, and then issued to its stockholders, as a distributive share thereof, bonds of the express company at par, payable only out of the securities so deposited as a special dividend, the express company retaining certain property rights in the securities, by which, in certain contingencies, creditors might reach them. Held, that such bonds and stocks so transferred to the trust company constituted an outside investment of surplus earnings which could not be included in an estimate of the value of the express company’s intangible property taxable in Kentucky.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virgihia, at Parkersburg.</p>

This is a suit in admiralty in personam, to recover damages for personal injuries sustained by the libelant (appellee) while .engaged in loading a cargo of sugar, by the alleged negligence of the defendant (appellant herein). The court below awarded to libelant $3,000 damages for the injury, and $65.35 for the amount he would have earned before the trial. Prom this decree the appeal is taken.

<p>1. Use of Mails to Defraud — Consolidation of Indictments — Sentence.</p> <p>Rev. St. § 5480 [U. S. Coinp. St. 1901, p. 3096], prohibiting the use of mails to defraud, provides that an indictment for its violation may severally charge offenses to the number of three when committed within the same six calendar months, but the court thereupon shall' give a single sentence. Held, that where three indictments, each charging a single offense under section 5480, were consolidated as authorized by section 1024 [U. S. Comp. St 1901, p. 720], and defendant was convicted of the three offenses committed within 'the same six calendar months, the court was entitled to sentence the defendant, in its discretion, to the full extent of the penalty provided for each offense.</p> <p>¶ 1. See Post Office, vol. 40, Cent. Dig. § 90.</p> <p>2. Same — Mailing Letters — Evidence.</p> <p>In a prosecution for using the mails with intent to defraud, in violation of Rev. St. § 5480 [U.'S. Comp. St. 1901, p. 3696], evidence reviewed, and held sufficient zo establish that defendants placed or caused the letters set forth in the indictment to be placed in the railway post office alleged in the indictment.</p>

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

<p>1. Bankruptct — Funds in Hands of Receiver of State Court.</p> <p>An action was begun in a state court by a member of a firm for a dissolution of tbe partnership and a settlement of its allairs; A. being made a party, she claiming to be a tenant in common of the property in the firm’s possession. The court appointed a receiver, who converted the ■ property, into money. More than a year later, judgment was rendered therein adjudging that A. was a tenant in common in the property, and was entitled to .a certain amount of the money into which it was converted, and directing payment of the balance to various creditors of the firm. Within four months thereafter a petition in bankruptcy was filed against the partners, on which they were adjudged bankrupts. Held, that while the receiver could not be required to turn over to the trustee in bankruptcy the funds adjudged to A., though the trustee might attack in the state court the transfer from the partners to A. on which such adjudication was made, the remainder of the funds, belonging in severalty to the bankrupts, should be turned over to the trustee; A. having no lien thereon, and their creditors having none except as given them by the judgment of the state court, and this being cut off by the proceedings in bankruptcy.</p>

<p>„ Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>.'.This cause,comes here .upon appeal from the United States Circuit Court (1x6 Fed. 726) for the. Southern District of New York, reversing a decision (G. A. 4640) of the Board'of General Appraisers which had affirmed the decision of the collector of the port of New York in classifying for duty certain merchandise the product of Algeria.</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 Southern District of New; York:</p> <p>These eight cases come here by stipulation on a single appeal from a judgment of the United States Circuit Court for the Southern District of New York (121 Eed. 171) dismissing a bill brought to restrain unfair competition and the infringement of complainant’s trade-mark.</p>

<p>4 Bankbottcy — Discharge-Objection—Destbuction oe Books.</p> <p>Where a bankrupt, after losing his funds, which he had deposited in a bank, in gambling and speculations, destroyed or threw away his checkbook and passbook, for the reason, as he testified, that they were “no further good to him,” and it appeared from the schedule of creditors that of the $9,304.54 total liabilities over $7,600 was for money borrowed by the bankrupt, and, with the exception oí $332.40, such siim was borrowed in the year 1902 after the destruction of the books, at which time his debts were' few and trifling in amount, tbe destruction of such boohs could not be said to have been with a fraudulent intent to conceal his true financial condition, ■ so as to justify the denial of his discharge on that ground, as authorized by Bankr. Act July 1, 1898, e. 041, § 14, 30 ■Stat. -550 [U. S. Comp. St. 1901, p. 3427].</p>

<p>1. Sales — Payment by Installments — Breach by Purchaser — Joey Question.</p> <p>Evidence in an action for the purchase price of goods, defended on the ground of the seller’s breach of contract in not making prompt deliveries, examined, and held to warrant submitting to the jury the question whether defendant had not first breached, the contract by failure to pay the required installments of purchase money, so as to render his subsequent termination thereof wrongful.</p> <p>2. Same — Nature of Action — Quantum Valebat.</p> <p>Where a purchaser of goods wrongfully breaks the contract of sale, the seller is entitled to sue on a quantum valebat for compensation for his partial performance.</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 by defendant below to review a judgment entered by the United States Circuit Court for the Southern District of New York upon a verdict in favor of the plaintiff below for $1,000 damages for having been ejected from the train of the defendant.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the District of Washington.</p> <p>This action was brought by the United States against the defendant to recover the value of timber cut from unsurveyed land claimed to be public land. The bill alleged that certain unsurveyed public lands situated at Nason Station, Chelan county, Wash., and near Chiwaukum, Wash., would be, if surveyed, certain described sections; that during tlip years 1893 to 1901, inclusive, there was growing upon said lands a large amount of valuable timber, the property, of the plaintiff; that during those-years-one W. H. Middleton unlawfully, and without any authority whatever, entered upon said land and upon the lands of plaintiff immediately contiguous thereto, and cut down a large quantity of timber, and manufactured the same into saw logs; that he afterwards removed the said saw logs, and manufactured the same into lumber, and sold and delivered the same to various persons — among others, 144,000 feet of the said lumber so unlawfully taken to the defendant herein, which was at the time of -the value of $1,440; that defendant converted the lumber to his own use, and refused to pay the plaintiff therefor. Judgment was asked for the sum of $1,440. The defendant denied generally the allegations of the complaint, and, as matter of defense, alleged that, if any of the lumber or.saw logs or timber describéd in the complaint was cut from the lands described by the said Middleton, it was so cut, manufactured, -and disposed of in the innocent belief that the said lands belonged to the Northern Pacific Railway Company, and with the understanding and belief that he had a right to cut and remove the timber and manufacture the same into lumber. Defendant alleged that he himself had no knowledge that any of the lumber purchased by him from said Middleton was taken from the lands of the plaintiff, and, further, that the defendant acted merely as a middleman, and distributed the said lumber to customers of the said Middleton, receiving a small commission therefor.</p> <p>It was shown upon the trial that Middleton ran a sawmill for several years with timber cut from the lands described in the complaint, which were unsurveyed lands within the primary limits of the grant to the Northern Pacific Railroad- by the act of July 2, 1864, c. 217, 13 Stat. 365; that, if surveyed, these lands would be the odd and even numbered sections mentioned in the complaint ; that the defendant was a general merchant, with whom Middleton had a running account, and to whom he shipped lumber at various times for distribution by him to various customers, and at times for his own purposes; that the timber was worth, in the standing tree, 50 cents per thousand feet; that ■the reasonable value of the lumber, when shipped, was $7 and $8 per thousand feet, and, from the books of account of the defendant, lumber had been received from Middleton, for himself and others, and credited to his. account, during the years 1896,1897,1898, and 1899, in the sum of about $’2,200. Middleton himself testified that when cutting the timber he thought he was cutting, and intended to cut, from the odd-numbered sections within the railroad limits, and that he had settled with the railroad company for the cutting done by him.</p> <p>A verdict was rendered in favor of the plaintiff, in the sum of $105.60, and Judgment entered accordingly. The action is now before this .court .upon writ of error sued'out by the plaintiff.</p>

<p>1. Trade-Names — Titles of Periodicals — Infringement—Injunction.</p> <p>A person publishing a magazine under the name “Comfort” has a trade-name in such title, which is infringed by the use of the name “Home Comfort” for a magazine, entitling him to an injunction, without proof of damages.</p> <p>¶ 1. Arbitrary descriptive or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p>

<p>1. Patents — Infringement—Water Still.</p> <p>The Hale patent, No. 634/556, for a water still for the distillation of water foi* domestic purposes, having in combination a boiler, a condenser, and a collector, has for its essential and patentable feature a sterilizing chamber, consisting of the upper part of the boiler, above the water, into which air is admitted and carried across the surface of the water through the steam to a passage opposite the inlet, through which it passes, mixed with the steam, to the condenser. Such feature of construction, having been specifically described in the amended specification, and insisted, upon as giving novelty to the combination, the other elements of which were old, cannot be disregarded . but imposes a limitation upon the claims of the patent, which are not infringed by a still which is without such- chamber. ■ "' ...... ...</p>

<p>\i. Bankruptcy — Funds—Payments by Trustee — Disallowance—Judgment. :■ 1 1 AVhére payments made by a trustee" in bankruptcy in violation of the</p> <p>bankruptcy rules were disallowed by. the court on affirmance of the report of a special master appointed to pass on tiie trustee’s account, and no appeal was taken therefrom, or" petition filed to revise in matter of law the settlement of the estate, "for more than a year, the order became final, ¿nd could not be set aside or modified on motion.</p> <p>";"2. Same — Orders oe Court — Failure to Obtain.</p> <p>AVhere a trustee in bankruptcy made payments in violation of- the rulés, and without an order of the court therefor, whereupon, on a hearing of his report, such payments were dis,allowed, the trustee and his bondsmen were liable therefor, notwithstanding the court might have authorized such payments, had the trustee applied for authority to make them.</p>

Appeal by the Importers from a Decision of the Board of United States General Appraisers. On petition of Edward Hills, Sons & Co., importers, for a review of a decision of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs on merchandise imported at the port of New York.

<p>1. Peonage — Power of Congress to Legislate.</p> <p>Act March 2, 1807, c. 187, § 1, 14 Stat. 540 [U. S. Comp. St 1901, pp. 1266, 1267], denouncing peonage and involuntary servitude in any form, and providing a punishment, is a valid exercise of power granted to Congress by Const. U. S. Amend. 13, forbidding slavery or involuntary servitude, except as punishment for crime, and declaring that Congress shall have power to enforce this by legislation.</p> <p>2. Same — What Constitutes Condition of Peonage.</p> <p>A condition of peonage, within the denunciation of Act March 2, 1867, c. 187, I 1, 14 Stat. 546 [U. S. Comp. St. 1901, pp. 1266, 1267], is the illegal holding of a person to involuntary servitude, to work out a debt or contract claimed to be due by the person so held to the person so holding.</p> <p>3. Same-Jurisdiction.</p> <p>A federal court may entertain a prosecution for violation of Act March 2, 1867, c. 187, § 1, 14 Stat. 546 |TJ. S. Comp. St 1901, pp. 1266, 1267], denouncing peonage, though prosecution of the same acts under the name of kidnapping and false imprisonment might be held in the state courts.</p>

In Bankruptcy. Hearing on questions - certified by referee respecting money collected by the trustee of the bankrupt estate, which was earned by the bankrupts, who are husband and wife, as'wages, and claimed by them as part of their exempt property. Claim allowed in part. .

<p>1. Indictment — Designation of Defendant — Fictitious Name — Description.</p> <p>An indictment charging “John Doe, a Chíbese person, whose true name is to the grand jurors aforesaid unknown,” with the offense of aiding the illegal landing of a Chinese person in the United States, showed on its face-that the name “John Doe” was fictitious only, and that the grand jurors were unable to identify the person whom they were indicting, and was therefore void for insufficiency of description.</p> <p>2. Same — Objections—Demujrreb.</p> <p>Where an indictment shows on its face that it is void for insufficiency of description of the person indicted, the defect may be taken advantage of by demurrer as well as by plea in abatement.</p>

<p>In Bankruptcy.</p>

<p>1. Jurisdiction of Federal Courts — Diversity of Citizenship — Corporation Chartered by Different States.</p> <p>The Boston & Maine Railroad, a corporation originally chartered in New Hampshire, but subsequently, by consolidation, also made a corporation of both Massachusetts and Maine, is a citizen of New Hampshire, in such sense that the Circuit Court of the United States in that state is without jurisdiction of an action against it by another citizen of New Hampshire on the ground of diversity of citizenship.</p> <p>¶ 1. Citizenship of corporations for purpose of federal jurisdiction, see notes to St. Louis, I. M. & S. Ry. Co. v. Newcom, 6 C. C. A. 174; Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>See Courts, vol. 13, Cent'. Dig. § 860.</p>

<p>1. Equity — Suits at Law — Injunction—Bill—Demurrer.</p> <p>A bill to enjoin a suit at law alleged that defendant L. was president of defendant corporation, and either owned or controlled all of its stock; that the corporation served no other purpose than to be used by L. to conduct his private business, and that he deposited his individual moneys to the corporation’s bank account, and paid his private debts with checks of the corporation, with the consent of all its stockholders and officers; that L. gave complainant the check sued on by the corporation in the suit at law with the request that complainant deliver the proceeds to L.’s .creditor, which he did; that the corporation sustained no loss by the payment of the check, as it was paid by L.’s money, and that L. caused the action against complainant to be brought without action of the corporation’s board of directors, and was using the corporation to prosecute a number of suits at law against complainant for the sole purpose of preventing him from setting up such facts in defense; that L. was indebted to complainant for more than $10,000, and that complainant had not been permitted to set up such matters in the suit at law. Reid, that the bill was not demurrable.</p> <p>2. Same — Federal Courts — Ancillary Jurisdiction — Citizenship.</p> <p>Where ah action at law was pending in the Federal Circuit Court, such court had ancillary jurisdiction before judgment to entertain a bill to restrain the further prosecution of such action on equitable grounds not available as a defense to the action at law, without regard to the citizenship of the parties.</p> <p>¶ 2. See Courts, vol. 13, Cent. Dig. § 801.</p>

<p>1. Federal Convicts — Good Conduc'd-State Laws — Application.</p> <p>Rev. St. § 5544 [U. S. Comp. St 1901, p. 3721], declares that the preceding section, providing the commutation to which federal convicts may be entitled for good conduct, shall apply to such prisoners only as are confined in .iails or penitentiaries where no credits for good behavior are allowed; but in other cases all prisoners confined in .-jails or penitentiaries of any state for offenses against the United States shall be entitled to the same “rule of «edits” for good behavior applicable to other prisoners in the same jail or penitentiary. Held, that Act Pa. 1901 (P. L. 166), allowing a specified commutation, but making such allowance conditional on the act of the Governor of the state, approved by the board of inspectors or managers of Pennsylvania penitentiaries, did not prescribe a “rule of credits,” but rather a commutation, of sentence to be exercised at the discretion of state officers, and was therefore not appli? cable to federal prisoners. ...</p>

<p>In Admiralty. Suit in personam to recover for repairs.</p>

<p>1. Clerk of Court — Failure to Issue Summons.</p> <p>A clerk of a court is essentially a ministerial officer, and has nothing to do with the character or purpose of papers which are tendered to him to be filed. When suit is ordered or process directed to be issued, it is his duty to comply, if the party is prima facie entitled to it; and for failure to do so he is liable for any loss, the measure of his responsibility being the damages which have resulted therefrom.</p> <p>2. Same — Action for Damages — Declaration or Complaint.</p> <p>In an action on the official bond of a'clerk of the Circuit Court for refusal to issue a summons, the plaintiff must state in his declaration enough to show that he had a good cause of action against the parties whom he desired to sue. He cannot simply claim as damages the amount for which he wanted to bring suit, and a declaration or complaint which does nothing more is demurrable.</p> <p>3. Same — Action on Official Bond — Nominal Damages.</p> <p>Where there has been a breach of official duty by a clerk, resulting in substantial damage, suit may be brought on the official bond in the name of the United States, for the use of the party injured; but, to maintain such action, something more than nominal damages must be shown.</p> <p>¶ 1. See Clerks.of Courts, vol. 10, Cent Dig. §§ 125, 126.</p>

<p>[L Collision — Cost oy Repairs — Evidence.</p> <p>The cost of repairs for damage by collision is proved prima facie by testimony that the repairs were rendered necessary by reason of the collision, that they were made, and at the lowest price, and the testimony of the ship’s agents that they had paid the bills.</p> <p>2. Same — Damages Recoverable-Survey and Docking Charges.</p> <p>Where repairs made necessary by collision and other repairs are made at the same time, the cost of the survey and docking charges will be divided.</p>

<p>1. Foreign ‘Corporations — Actions—Jurisdiction—Service.</p> <p>Plaintiff, an Iowa corporation, purchased certain iron products of defendant, an Illinois corporation, to be delivered f. o. b. Chicago. A difference occurring between the parties was attempted to be settled by their attorneys, who resided in Chicago, and, having failed, defendant’s president, having occasion to travel through Iowa, stopped at plaintiff’s place of business in order to settle the claim; and, on his stating that it would be necessary to lay plaintiff’s proposition before defendant’s board of directors, notice of suit was served on him. Defendant owned no property in Iowa, never had an agency in the state, and never did any business there. Held, that the service on defendant’s president under such circumstances was insufficient to confer jurisdiction of defendant on the Iowa courts.</p> <p>2. Same — State Statutes — Special Appearance — Eeeect—Federal Courts.</p> <p>A state statute prohibiting special appearance does not preclude a defendant sued in a state court, after removing the cause to the federal court, where special appearances aré allowed, from appearing specially and objecting to the service on the ground that the defendant was not amenable to the process of the courts of such state.</p> <p>3. Same — Jurisdiction—Objections—Waiver.</p> <p>Where a foreign corporation was sued in the state court, and filed a plea reciting fraud, and facts showing that the state court had no jurisdiction over such corporation, and at the same time filed its bond and petition to remove the cause to the federal court, such acts did not constitute an appearance or waiver of the corporation’s objection to the state court’s jurisdiction.</p> <p>¶3. See Appearance, vol. 3, Cent.-Dig., § 50. ■'</p>

At Law. Julius Kessler & Co., a corporation of tbe state of West Virginia, brought suit against the commercial firm of E. E. Perilloux & Co., and, the individual members thereof, all citizens of the state of Louisiana, on two promissory notes, aggregating $2,021.21, with interest.

<p>1. Injury to Employe — Negligence—Evidence.</p> <p>Evidence on a bearing in damages after default, in an , action against the employers for .injury to an employe wbile engaged in dumping a bucket as it was raised by a derrick filled with mud and stones from an excavation, held to disprove any negligence in furnishing an insufficient bucket, or in putting into it without warning the stone which occasioned the injury.</p>

<p>1. Libel — Consolidation oír Causes.</p> <p>Where several actions were brought against different newspapers for publishing the same alleged libel, and the principal issues for the jury in each of the causes were substantially identical, the causes might be consolidated and the issues of fact tried to a single jury, as authorized by Eev. St. § 921 [U. S. Comp. St. 1901, p. 685], notwithstanding the elements with reference to the damages to be assessed in the several cases might be different</p>

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

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

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

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

<p>(Circuit Court of Appeals, Eighth Circuit.</p>

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

<p>Petition to Superintend and Revise Decision of the District Conrt of the United States for the Southern District of Texas.</p>

<p>Appeals 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 District of Minnesota.</p>

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

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

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

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

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

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

<p>The master’s report allowed complainant damages in the sum of $29,793.86, net profit from infringement of trade-mark.</p>