Volume 128 — Federal Reporter

The appellant, a Kentucky corporation (complainant below), brought this suit against Mrs. M. E. Smith and 14 others, appellees (defendants below), all citizens of Alabama. The averments and purpose of the bill are sufficiently shown in the opinion. The defendants demurred to the bill, making the objections which are stated and discussed in the opinion. The circuit court.sustained the demurrers and dismissed the bill, and its decision and decree are assigned as error.

<p>1. Evidence — Competency—Admissions of One not a Party to the Record.</p> <p>In an action by the owner of goods against a carrier to recover for a loss of goods through the alleged negligence of the defendant, in order to render admissions of an insurer of the goods, as against its interest, admissible (if admissible under any circumstances), it must have been a party to the suit, either on the record or otherwise, in complete control of the litigation. It must not only have paid to the insured in full and unconditionally the indemnity for which it had become liable, but it must have actually asserted its right of subrogation by bringing and controlling the suit in the name of the assured, before it can be invested with such an interest as a real party as to render its admissions competent evidence in behalf of defendant. The fact that it has a contingent or collateral interest in the result of the suit growing out of its contract with plaintiff, with which defendant has no concern, cannot render its admission competent evidence to relieve defendant from liability under its contract with plaintiff.</p> <p>•2. Sake — Relevancy.</p> <p>In an action against a carrier to recover the value of goods destroyed by fire while in defendant’s custody through its alleged negligence in placing them in a warehouse adjoining one which was at the time subject to special hazard from fire because of its contents and the conditions existing, the fact that the insurer of the goods lost, with other companies, had at some previous time established a uniform rate of premiums for insurance on both warehouses, is irrelevant to prove an admission by the insurer that defendant was not negligent in the respects alleged, conceding that the admission, if proved, would be competent evidence.</p> <p>Aeheson, Circuit Judge, dissenting.</p>

This was an action to recover damages for breach of a contract for the carriage of the Tim Murphy Theatrical Troupe, their baggage, scenery, stage properties, etc., from Atlanta, Ga., to Lexington, Ky., with the privilege of stopping over at Chattanooga and Knoxville. There was a plea of not guilty. The plaintiff was proprietor, and manager' of a traveling theatrical troupe, consisting in all of 14 persons.

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

<p>1. Federat, Courts — Jurisdiction — Land Titles— Cancellation— State Courts — Decrees—IIneorckment—I xjunotion.</p> <p>Rev. St. § 720 [U. S. Comp. St. 1901, p. 581J, forbidding federal courts to issue an injunction to stay proceedings in any court of tlie state except in cases where such injunction may be authorized by any law relating to bankruptcy proceedings, does not deprive a federal court of jurisdiction to restrain a defendant from selling, incumbering, or iii any way disposing of lands purchased at a sheriffs sale, where such injunctive remedy is ancillary to the granting of relief in a suit to set aside the sheriffs deed, of which the federal court had jurisdiction.</p> <p>3. Same -Injunction — Discretion—Review.</p> <p>Tlie granting of a preliminary injunction in the exercise of the judicial discretion of tlie Circuit Court will not be set aside on appeal unless it clearly appears that the court erred In applying the legal principles which should have guided it, when considered from the Circuit Court’s standpoint.</p> <p>-3. Same.</p> <p>Whore a suit was brought to set aside certain notes and a sheriff’s sale of certain lands described in the hill, and injunction was asked restraining tlie purchaser at tlie sale from selling, incumbering, or disposing of tlie lands, etc., and defendant would be fully protected against loss by reason of tlie injunction, by a proper bond, it was not an abuse of the trial court’s discretion to refuse to vacate a temporary injunction issued, on a motion made before demurrer, plea, or answer to the bill.</p>

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

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

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

<p>In Equity. Suit for infringement of letters patent No. 696,670, for a sparking plug, granted April i, 1902, to Henry C. Folger, Harry Moriarty, and Edward B. Jacobson. On final hearing.</p>

<p>1. Patents — Effect of Surrender for Reissue.</p> <p>A patentee cannot claim rights under a patent which he has surrendered to obtain a reissue.</p> <p>2. Same — Reissue—Scope.</p> <p>A reissue patent must be for the same invention as the original patent,</p> <p>. and cannot include a feature which was withdrawn on the original application. to meet a requirement of the Patent Office, or in the rejection of which by the Patent Office the applicant acquiesced.</p> <p>3. Same — Validity of Reissue — Machine for Ornamenting Picture Frames.</p> <p>The Adams second reissue patent, No. 11,980 (original No. 642,059), for a machine for mounting ornamental composition directly upon circular picture frames, claims 11 to 18, inclusive, are void as covering matters not included in the original patent.</p>

<p>1. Patents — Remedy in Equity toe Kkeusal — Amendment of Statute.</p> <p>Itev. St. S 4915 [IT. S. Comp. St. 1901, p. 3392], gave an applicant for a patent a remedy by bill in equity in a Circuit Court whenever his application had been refused by the Commissioner of Patents in interference cases, or by the Supreme Court of the District oi"Columbia in ex parte cases; their decisions being filial, so far as the Patent Oflic.e was concerned, in such cases respectively. Act Eel). 9, 1893, c. 74, 27 Stat. 434, creating the Court of Appeals for the District of Columbia, transferred the appellate jurisdiction in patent cases to such court, and also provided for an appeal thereto from the decision of the commissioner in interference' cases, repealing all acts and parts of acts inconsistent therewith. Held, that such act did not repeal section 4915 so far as related to the remedy in equity in interference cases, its only effect being to require the applicant to exhaust his remedy in the direct proceedings by an appeal from the decision of the commissioner before being entitled to proceed in equity.</p> <p>2. Same — JmusiHCTioN.</p> <p>A11 applicant for a patent, against whom adverse decisions have been - rendered in interference proceedings by the examiners and Commissioner-of the Patent Office and. by the Court of Appeals of the District of Columbia on appeal, whose decision governs the further proceedings in the case in the Patent Office, may maintain a bill in equity in a Circuit Court without waiting for the formal action of the Patent Office refusing his application.</p>

In Equity. Suit for infringement of letters patent No. 491,012 for a bicycle bell granted to Eewis E. Erieson, January 31, 1893. On supplemental bill filed by defendants.

<p>1. Patents — Cloth-Measuring- Machines — Validity—Anticipation.</p> <p>, Patent No. 507,300, for an improvement in cloth-measuring machines, consisting óf a device for varying the length of the circumference of the measuring cylinders in order to allow for the elasticity of cloth, held valid, and not anticipated by prior patents and structures showing divided cylinder, rims.</p> <p>2. Same — Ineeingement.</p> <p>Patent No. 507,300, for an improvement in cloth-measuring machines, to increase the circumference of the cylinders, to allow for difference in the elasticity of the cloth, and containing split rings,' combined with an expanding device, and a rotating shaft, having a series of spiders thereon, was infringed by another machine using a similar split ring between the rims of the ends of the cylinders and their measuring circumference for the same purpose; the only difference being that the mode of separating the parts of the split rings was by means of screws, instead of by cams, as shown in the patent, and the use of a spring to control the expansion.</p>

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

<p>1. Shipping — Construction op Charter — Duty and Risk op Towage.</p> <p>A bill of lading for a cargo of coal provided that it should be carried from Philadelphia to Portland, Me., and there delivered, “consignees paying freight for the same at the rate of 90c. and discharged, and to tow vessel in and out of Back Bay free.” Sold, that the contract did not bind the consignee to pay for the towage but to provide the same, and that, after the vessel arrived in port and notified the consignee, the duty and risk of the towage service rested upon him.</p> <p>2. Same.</p> <p>The schooner arrived in the harbor of Portland on Saturday at about noon, and shortly thereafter the master, who was unacquainted with the port, went to the office of a towboat company and inquired the location of the consignee’s wharf, and at his request the agent of the company notified the consignee of the schooner’s arrival. The master did not make any effort to engage a tug. Later the same day the agent of the towboat company again telephoned the consignee, and was told that he wished the schooner in by Monday morning. Sunday the agent went out to the schooner with a tug, and made arrangements to take her in that afternoon. The master made no contract for the towage nor to assume the risk, and the consignee had received the bill of lading containing the contract several days before. Held, that the towboat company, in performing the service, was acting under employment of the consignee, and not of the vessel.</p> <p>3. Same — Liability op Charterer por Negligent Towage — Employment op Towing Company.</p> <p>The consignee of a cargo, having assumed by his contract the duty of furnishing towage, cannot relieve himself from liability for the manner in which it is performed by the employment of a towing company, and is responsible to the vessel for any damage or injury caused by the negligent manner in which the service is performed by such company.</p> <p>4. Towage — Duty op Knowledge and Skill — Liability poe Negligent Service.</p> <p>The consignee of a cargo of coal to be delivered at Portland, Me., who-had engaged to furnish towage in and out of the Back Bay, in which his wharf was situated, employed a local towboat company to perform the service. The schooner was heavily laden, and had a draft of 21 feet aft. The master had no knowledge of the harbor. The company undertook the towage with two tugs, but the depth of water in the channel was insufficient and the schooner stranded on a bar, and in attempting to pull her over tlie bar she was considerably injured. The captains of the tugs were competent and experienced men, but had no knowledge of the depth of water in the channel, and did not ascertain the same, although the schooner was a vessel of larger draft than the company had ever taken through it. Held, that the company was negligent in undertaking the service under such circumstances, and their negligence rendered the consignee liable for the injury to the vessel, her master not being chargeable with negligence in trusting to the supposed skill and knowledge of the masters of the tugs.</p>

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

At Raw. This is a motion by plaintiff to remand the case to the state court, from whence it came lor want of jurisdiction in this court. The action was brought in the district court of Allen county by plaintiff to recover damages jointly from defendants for negligently causing the death of her husband, David C. Shaffer, while in the employ of the defendant brick company.

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

Criminal Prosecution under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497]. On'demurrers to indictment. The indictment originally contained 46 counts. The government, being required to elect by the court, nol prossed all but 12 of the counts. These remaining 12 counts charge the making of false entries, under section 5209 of the Revised Statutes [U. S. Comp.

<p>In Equity. Suit for injunction to restrain infringement of copyright and unfair competition. On final hearing.</p>

<p>In Equity. Suit for infringement of trade-name. On motion for preliminary injunction.</p>

<p>1. Eminent Domain — Fixino Compensation eoe Peopeetv Taken— Constitutionality oe Statute.</p> <p>Act Ark. March 20, 1883 (Acts 1883, p. 163), providing for building and repairing levees' in Chicot county, which by section 18 provides that the damages sustained by a landowner shall he assessed by a jury of six men selected by the sheriff, who shall examine the property and make an award, which shall he final, is therein invalid, as in violation of Const. Ark. art. 12, § 9, -which provides that no property shall be appropriated to the use of any corporation until full compensation shall first he made or secured to the owner, “which compensation * * * shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law”; the board of levee inspectors created by the a.ct, and authorized to appropriate land for levee purposes, being a corporation, within the meaning of such constitutional provision.</p> <p>2. Same — Constitutional Jury.</p> <p>Six men appointed by a sheriff to award damages for the taking of property for a public use, on an inspection of the property, merely, do not constitute a jury, in a constitutional, sense; and it is immaterial that they are called “jurors” in the act which provides for such proceeding.</p> <p>3. Same — Taking Property without Compensation — Remedy oj? Landowner.</p> <p>A landowner whose property has been taken for a public use without compensation may maintain an action at law to recover damages for the trespass.</p>

<p>1. Equity Pleading — Multieabiousness — Bill Assebting Inconsistent Liens.</p> <p>A bill of intervention filed in a suit to foreclose a mortgage on an interstate railroad is multifarious, where it asserts two distinct and inconsistent rights to a preferential lien by the intervener — one on the ground that it furnished supplies necessary to the operation of the road by the mortgagor, which by express agreement were to be paid for from current earnings, and that such earnings were made, but were diverted by the mortgagor to other purposes, which gives the intervener a preferential lien in equity on the corpus of the property; and the second on the ground that intervener has perfected a mechanic’s lien, under the statutes of the state, for the same feupplies, which entitles it to a lien on the real property of the mortgagor company within the state only, and, under the statute, would require proof that the supplies were furnished for the betterment of the property, and without other security or reliance for payment than the statutory lien.</p> <p>2. Same — Pbocedube—Compelling Election.</p> <p>Where a bill is multifarious, in asserting two rights of action which are inconsistent with and repugnant to each other, although no demurrer is interposed on such ground, the court may on final hearing require the complainant to elect between the two claims, and dismiss the bill as to the other.</p>

<p>1. Com,sion — Overtaking Steam Vessel — Constbuction or Rules.</p> <p>A steam vessel coming up with another from a direction more than two points abaft her beam does not cease to be an overtaking vessel, required by article 24 of the inland navigation rules (30 Stat. 101 PE. S. Comp. St. 1901, p. 2883]) to keep out of the way, because of the fact that the overtaken vessel is at the time going astern.</p> <p>2. Same — Evidence Considebed.</p> <p>While the steamship Sicilian Prince, on the east side of the channel in Epper-New York Bay, was turning in order to head out to sea, and was gomg astern in a northwesterly direction, she was overtaken by the steamer Jefferson, coining down the bay, and a collision resulted. The Jefferson was going at a speed of about 14 knots, nearly her full speed, with an ebb tide, and maintained such speed until the collision. She was overhauling another steamer, which was on her starboard side, and passed to the right of the Sicilian Prince, although whether she was far enough behind such steamer to have passed to starboard under her stern was in dispute. Held, that she was in fault for not keeping out of the way as an overtaking vessel as required by the rules; for being on the wrong side of the channel, also, in violation of the rules; and for not reducing her speed and falling behind the other steamer, if necessary, to leave her free to pass to starboard before she reached the Sicilian Prince. Held, also, that the Sicilian Prince was guilty of contributory fault in that, while backing across the main channel in a crowded harbor, and having seen the two steamers approaching when a mile distant, and stopped her engines, she failed to give further attention to them, or to repeat her signal that she was going astern, when the action of the Jefferson indicated that it had not been heard.</p> <p>3. Same — Enteles in Los.</p> <p>Where no entries in relation to a collision are made in the ship’s log, or when the entries which are made are intentionally meager, vague and perfunctory, or when portions of the log probably containing entries relat-' ing to a collision have been removed, the presumption is that the vessel whose log has been so kept was in fault.</p>

<p>1. Bankruptcy — Partnership—Petition by One Pabtnee against Firm and Copartner.</p> <p>Where a petition lias been filed by one partner to bring his firm and his copartner into bankruptcy, the latter is not entitled -to insist upon proof of an act of bankruptcy, which the petitioner is not required to allege either by the bankruptcy act or by the practice thereunder, nor can he set up the want of such an act as a defense to the petition, but he may set up the defense of solvency, since an adjudication of bankruptcy against all the partners is essential to one against the firm, and on that issue he is entitled to a trial by jury.</p>

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

<p>1. BANKRUPTCY — PROVABLE DEBTS — CLAIM OB’ WIFE FOR SERVICES. '</p> <p>Under the Pennsylvania statute of 1893 (P. L. 344), which permits a wife to contract directly with her husband for payment for her services . rendered in Ms business outside the family relation, the wife of a bankrupt may prove a claim for services rendered under such a contract against his estate in bankruptcy.</p> <p>2. Same.</p> <p>The Pennsylvania statute of 1893 (P. L.- 345, § 3), providing that a wife, may not sue her husband, except for divorce or for recovery of her separate property after his desertion, does not prevent her from proving a claim against his estate in bankruptcy, which is not a proceeding against him, nor even adverse to him.</p> <p>3. Same — Competency of "Wife as Witness.</p> <p>The Pennsylvania statute of 1887 (P. D. 158, § 2b), which forbids husband laud wife to testify “against each other,” does not render the testimony of a wife incompetent in support of a claim filed by her against her husband’s estate in bankruptcy.</p>

<p>1. Admieautyí-Limitation of Actions.</p> <p>While statutes of limitation, as such, are not enforced by courts of admiralty, such statutes will ordinarily be followed by analogy in the absence of exceptional circumstances.</p> <p>2. Same — Amendment of Libeu — Laches.</p> <p>The fact that pending a suit in rent to recover for breach of a contract of affreightment the damages sustained by libelant, with interest and the costs, have increased to a sum in excess of the stipulation given for the release of the vessel, is not such an exceptional circumstance as will authorize the court to permit an amendment of the libel to bring in the shipowner, and add a cause of action against it in personam, after the lapse of nine years from the filing of the libel, and after a new action - would be barred applying by analogy the local statute of limitations. In such case tbe shipowner might have been joined in the first instance, or at any time thereafter within the statutory period, and the effect of the lapse of time on the amount of the damages was apparent.</p>

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

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

<p>1. Removal of Causes — Jurisdiction—Rueden of Pboof.</p> <p>When the jurisdiction oí the federal court over a case removed into that court from a state court depends upon a question of fact, the existence of such jurisdictional fact must be well pleaded in the petition fox-removal filed in the state court, and, if issue is joined on the truth of the allegations contained in such petition for removal, the burden of proof rests upon the removing party to establish the existence of such jurisdictional fact in the federal court by the greater weight of testimony.</p> <p>2. Same-Matters ox? Law.</p> <p>The cases removed from a state court into the federal court, in which the petition filed by plaintiff in the state court is conclusive in the federal court on the question of its'jurisdiction, are cases in which the question of jurisdiction of the federal court depends upon the legal construction of plaintiff’s petition as to the joint liability of defendants, or other matter of law.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — Avoidance or Transfers Made ry Bankrupt — Sufficiency of Deutvery.</p> <p>By an agreement entered into in good faith, a debtor who was a dealer in carriages undertook to transfer certain carriages to a creditor, to be sold by him at stipulated prices, and the proceeds applied on tile indebtedness. An informal paper, in the nature of a bill of sale, as security, was executed, describing the carriages, which were delivered to an agent for the creditor, who removed them into a separate room in the debtor’s warehouse, where they were tagged with the creditor’s name, and there left to be sold by his agent. Held, that there was such a delivery as to pass the property, as against a trustee in bankruptcy of the debtor, appointed* in proceedings instituted more than four months thereafter.</p>

<p>1. Federal Courts — Equity—Costs—Fee Bill — Pleadings.</p> <p>United- States Supreme Court equity rule 25 provides that in order to promote brevity, etc., the regular taxable costs for every bill and answer shall In no caso exceed the sum which is allowed in the state court of chancery in the district, if any there be, otherwise it shall not exceed $3 for every bill and answer. Kev. St.“§ 913 LU. S. Comp. St. 1901, p. 083], declares (hat the forms and modes of proceeding in suits of equity in the Circuit and District Courts shall be according to the principles, rules, and usages which belong to courts of equity, except when otherwise provided by statute or by rules of court in pursuance thereof. Held that, in the absence of an express rule of the Circuit Court dealing with the taxation of costs in equity, such court had power to allow costs for the drawing of the pleadings, decrees, and order of court in accordance with tlio established practice as authorized by a state statute (Acts Pa. 1842, § 9 [P. L. 4331, end Acts Pa. 1804 IP. L. 77,11) authorizing the taxation of 10 cents a line for the first page, and 6 cents a line for each subseouetit page.</p> <p>2. Same.</p> <p>Such allowance was not prohibited by Kev. St § 823 [U. S. Comp. St. 1901,-p. (>32], forbidding solicitors in equity to receive any other compensation than that specified in section 824, and' also declaring that nothing therein contained shall prevent attorneys from charging or receiving from their clients such reasonable compensation as may be agreed on, or may accord with general usage in the respective states, “in addition to taxable costs.”</p> <p>3. Same — Depositions.</p> <p>The testimony of a witness taken before a master, and thereafter admitted in evidence' before the master and before the Circuit Court on exceptions to his report, is a deposition within Kev. St. § 824 ID. S. Comp. St. 1991, p. 632], authorizing the taxation of ⅜⅛-¾) costs for each deposition taken and introduced in evidence in the cause.</p> <p>4. Same — Master's IIepokt— Printing.</p> <p>Since United State's Circuit Court equity rules 1 and 6, for the Eastern District of Pennsylvania, only provide for the printing of the pleadings and evidence on the hearing of exceptions to a master’s report, costs cannot be allowed for printing the report, in the absence of a special order requiring the printing thereof.</p>

<p>In Bankruptcy. Under Act March 2, 1867, c. 176, 14 Stat. 517.</p>

<p>1. Indians — Scope op Statute Prohibiting Sale op Liquor — Carlisle Students.</p> <p>Act Jan. 30, 1897, c. 109, 29 Stat. 506, prohibiting tbe sale of liquor “to any Indian, a ward of tbe government, under the charge of an Indian superintendent or agent, or any Indian, including mixed bloods, over whom the government through its departments exercises guardianship,” extends to Indian students at the Carlisle school, which is maintained at the expense of the government under the direction of the Interior Department.</p>

<p>• Certificate' of the Referee to the United States District Judge for Review'.</p> <p>The bankrupt, C. P. Harmon, was engaged in business in Raleigh county, W. :Va., as a railroad subcontractor, employing numerous workmen. The petition in involuntary' bankruptcy was filed against said Harmon by certain preditors on the 29th day of July, 1903. About a week prior to the filing of said petition said bankrupt abandoned his work and disappeared from Raleigh county, largely indebted, and without having paid his laborers and workmen since June 1, 1903. -A large number of said workmen immediately instituted suits with attachments against the goods, stock, etc., of bankrupt, in justices’ courts of said; county. The oral proof taken before the referee shows that at the time of the institution of said suits, and in order to save costs in a number of actions, some 14 Of'the white laborers assigned the amounts due them, respectively, to one Ed Sisley, a laborer, and a number of the negro laborers as-iigned the amounts due to them, respectively, to one James Tucker, a laborer, f,or purposes of obtaining judgments and execution in their names, instead of by separate suits; the said Tucker and Sisley agreeing to account to said laborers for the said amounts due them, respectively, when collected. The Amounts irán from $3.35 to $40.05, and the total number of accounts so assigned amounted to some 35. The aggregate amount assigned said Tucker, including his, own claim for labor, amounted to $298.50, and the total amount assigned to Sisley, including his own claim for labor, amounted to $290.78.</p> <p>At the time of the institution of the actions the attorney for the laborers advised’ this assignment as a method of saving cost and expense, and as still being within the jurisdiction of the justice, namely, $300; and the oral testimony shows that it was made in that manner, for that purpose, and to that extent only, the assignees being virtually trustees for the assigning laborers to tlie extent oC their several proportions of the recovery. On the 23d day of .inly, 1903, such assignments were drawn up by the laborers’ attorneys and executed by said laborers to said Sisley and Tucker. The written assignments are attached to and made a part of this record, marked, “Tucker Assignment,”' and “Sisley Assignment.” On the 28th day of .Tnly, 1903, said claims were? duly proven before the justice, and judgments rendered in favor of said Sisley and Tucker against O. P. Harmon for said respective amounts.. On the 29th day of July tlie petition in bankruptcy was filed. ■</p> <p>After the breaking up of Harmon’s work, the various laborers sought other work, in mines and on railroad building, and at the time of the first creditors’ meeting they were scattered, and their whereabouts were unknown and un-aseertainable by their attorneys ; and accordingly ilieir attorneys, as such, made proof of said Sisley and Tucker claims as priority labor claims, earned within four months of the filing of the petition, as attorney or agent, under Form No. 30, filing with said proofs certified abstracts of the judgments. On motion to expunge oral evidence of two foremen of said Harmon, and of II. O. Ellett, tlie attorney for said laborers, who was present at the trial, and heard the testimony upon which the judgments were, rendered, satisfied the referee that said claims were proper and correct as to amount, and that they were earned by the laborers and said Sisley and Tucker within the four months period, and that tlie character of the work was such that said wages' were properly priority claims.</p> <p>Counsel for petitioning and general creditors, however, assert that, even if this be so, said claims having been assigned prior to the filing of the petition were not at the time of said filing “due to workmen, clerks or servants,” within the meaning of the act, section (Mb, subd. 4, Act July 1, 1898, e. 511, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3147], and lienee should not be allowed as jirior claims, and cite Re Weslund (Hist, of Minn.) 3 Am. Bankr. Rep. 646, 99 Fed. 399, in snpporl of their contention. This decision (of District Judge Lochren) is directly in point, and holds that assignment before the institution of the bankruptcy destroys the priority to which such debts are entitled, because in such case, at the date of the filing, the debt is not longer “due to workmen,” etc.; but tlie decision merely announces this to be the law, cites no authority, and practically no discussion. The decision not being a binding precedent upon this court, and, the referee being unable to concur in the reason or the reasoning of the opinion, he declined to follow it; holding that the assignment does not affect the status or character of the claims made priority claims by the act, and that such status depends upon the nature of the claim, and not upon who proves it in the bankruptcy proceedings. To hold otherwise would, In my judgment, deprive the protected class of the most valuable incident of the protection afforded their earnings, namely, their assignability, as the class of earnings protected are peculiarly such class that Hie earners thereof are most frequently obliged to realize upon before paid, and can only do so by assigning the same. In my view, they should be given the full protection to their claims, and enabled to realize on them at such time as their necessities demand, with, the knowledge in their assignees that they are acquiring protected claims, which will be secure and paid before general creditors. Nor can I see how such a rule can work to the disadvantage of general creditors, as, had the claims not been assigned, the laborers wlio hud earned them could, of course, prove their full amount ahead of the general creditors. This their assignees have clone, and no more. Unless the statute, in plain words, and not by forced con-si ruction, demands it, I would think it proper that the ordinary effect of the common law relative to assignments should apply here as elsewhere, and the assignee stand in exactly the same position as to a claim assigned as the assignor, which would here give him a position in a class preferred which his assignor possessed.</p> <p>In the case at bar there exists the additional reasons for allowing the’priority : First, that the assignment is proven to have been intended as ami actually creating the assignees, Tucker and Sisley, virtually," merely trustees for the laborers: and, second, if the strict letter of the act is resorted to in- support of the claim that the wages are no longer “due” to workmen, clerks, or servants, the facts show that both Sisley and Tucker were workmen of Harmon, but did not themselves earn the whole of the claims proven, as. the strict letter of the act does not require such wages to have been earned by the workmen proving them, but only that they shall have been earned within the required' period.</p> <p>Entertaining this view, the referee directed payment by the trustee of said claims as priority claims, and, counsel for petitioning creditors desiring a review of the referee’s decision, I hereby certify the facts and my decision, with •such portion of the record as is material, for review.</p> <p>All of which is respectfully- submitted. W. G. Mathews,</p> <p>Referee in Bankruptcy, S. D. West Virginia.</p> <p>Charleston, W. Va.,1 November 3,1903.</p>

<p>11. Salvage — Rescue of Cast-Off Babges in Long Island Sound. .</p> <p>A tug with three laden barges in tow was proceeding eastward in Long Island Sound, and when off Saybrook, Conn., the rear barge began to fill, owing to heavy seas, there being a strong wind from the west. The tug cast off the others, and towed the sinking barge into the river, and, at her request, libelant’s tug, then lying at her wharf, went to the rescue of the abandoned barges, which were drifting near the shoals, and succeeded in picking them up and towing them safely into the harbor at some risk to herself. The two barges with their cargoes were of the value of about $23,0Q0, and the rescuing tug was worth from $20,000 to $25,000. . Held, that the service was one of meritorious salvage, which entitled the tug to an award of $1,500, two-thirds to the owners and one-third to the master and crew. A further award of $450 made to the tug for 70 hours’ work in pumping out the first barge, but not as salvage.-</p>

<p>1. Costs — -Travel and Attendance.</p> <p>In a suit in equity the successful party is entitled to tax costs for travel and attendance.</p> <p>2. Same — Depositions Taken in Several Cases.</p> <p>Under Rev. St. § 824 [U. S. Comp. St. 1901, p. 032], providing for the taxation of $2.50 costs for each deposition taken and admitted in evidence, where depositions, though written out but once, were taken-to be read in several cases, and were entitled and admitted in evidence in each, on the .ioint trial thereof the successful party was entitled to tax costs thereof in each case, in the absence of an agreement to the contrary.</p> <p>3. Same — Supervising Record — Clerk’s Fee.</p> <p>Where the record in several cases tried together was printed but once, ' it was proper for the clerk to tax one fee for supervising the record as authorized by rule 23, par. 7, and divide the amount of such fee among the three cases.</p> <p>4. Same — Witness Fees.</p> <p>Where three cases were tried together! and each witness who testified was sworn in each case, they were properly allowed three witness fees. ■</p> <p>5. Same — Special Examiner — Swearing Witnesses — Fees.</p> <p>Where three cases were tried together, and each witness was sworn and each exhibit was marked in each case, the special examiner was entitled to three fees for caeli witness and each exhibit marked.</p> <p>6. Same — Special Examiner — Depositions—Fees—Attendance.</p> <p>Under Rev. St. § »I7 [IT. S. Comp. St. 1001, p. (>52J, entitling commissioners taking depositions to an attendance fee of ¡]j.‘} per day, and to 10 cents a folio for certifying and filing such depositions, where a special examiner took depositions which were read and used in three cases tided together he was entitled to a fee of S3 a day in but one case, and to 10 cents a folio for certifying and filing the depositions in the second and third case.</p> <p>7. Same — Evidence Furnished to Defendant.</p> <p>Where, in a suit in equity, plaintiff furnished a copy of the evidence to defendant, the clerk properly taxed to plaintiff 10 cents a folio therefor.</p>

<p>1. Injunction — Aiding in Violation of Contract — Dealing in Nontrans-FEBABLE RAILROAD TICKETS.</p> <p>A railroad company is entitled to an injunction to restrain ticket brokers from buying and selling tickets issued by it to persons wbo, in consideration of reduced rates, bave contracted not to transfer the same, the non-transferability being stated on tbeir face.</p>

<p>1. Federal Courts — Orders—Appeal-Time.</p> <p>An application for leave to appeal from an order cannot be granted where Uie application was not made within six months from the date the order was entered.</p> <p>2. Sam — Orders—Vacation—Terms of Court — Intervention—J urtsdictjon.</p> <p>Where a new term of court inter veiled between the making of an order and the making of a motion to vacate the same, the court lost jurisdiction to consider the motion.</p> <p>3. Same — Petitions—Striking from Files — Nonappealamle Order.</p> <p>Where a motion for leave to file a petition for leave to intervene was marked "Filed" by the clerk, by mistake, before leave to file had been grained, an order striking the petition from the files until such time as the court should pass on the petitioner’s right to file the same was an order merely piirging the records of the court of a mistake, and was therefore unappealable.</p>

<p>1. Frivolous Answer.</p> <p>Where an answer by the maker of a note, in an action thereon against him and the guarantors thereof, the jurisdiction of which depends on diverse citizenship, does not set up a good defense by the allegation that one of the other defendants is a citizen of another state, the privilege of suit in which he has claimed, yet it will not be struck out as frivolous, it requiring an argument and careful examination to answer the defense.</p>

In Equity. Suit for injunction. The hill in tills suit, duly verified, was brought by the Texas Cotton Products Company, a New York corporation, against W. T. Starnes, a citizen of Texas, io restrain the prosecution of a suit by Starnes in tiie district court of Williamson county, Tex.

<p>1. Eminent Domain — Condemnation oi Land eor Public Use — Right op Town to Compensation por Easement.</p> <p>A town lias a beneficial interest in an easement of aqueduct acquired by it for water pipes through private land, by whatever title it is held, as distinguished from property acquired by it for a strictly public use, and it is entitled to compensation when such property is condemned for another public use, whether by the state or United States.</p> <p>2. Same — Easement of Aqueduct in Highway.</p> <p>In laying a water pipe under a public highway a town acts in the same capacity as a nonmnnieipal water companjq and its rights are no greater, and under the law of Massachusetts, on the taking of the highway for a superior public use, neither the town nor the company is entitled to compensation for the easement.</p>

<p>In Bankruptcy. On demurrer to petition for revocation of discharge.</p>

<p>1. Shipping — Injukies to Seamen — Liability of Vessel — Evidence.</p> <p>Where a seaman claimed that an injury, consisting in the freezing of his hands, resulted from his being compelled by the master to remain in the pilot house, at the wheel, for a long period of time, in very low temperature, and to rub the frost from the glass of the pilot house with his bare hands while he steered the vessel, but it appeared that there was a stove and plenty of coal in the pilot house, together with waste which could have befen used to wipe the glass, and that the injury was more probably due to the fact that plaintiff only had a thin pair of gloves, which were wholly inadequate to keep his hands warm, and on his return home he only visited a physician for such injuries five times during one month, the evidence did not'justify a recovery against the vessel.</p>

<p>1. Federal Courts — Pleading—Amendment—State Practice.</p> <p>Rev. St. U. S. § 914 [U. S. Comp. St 1901, p. 084], providing that the practice, pleadings, and forms in civil causes, other than equity and admiralty causes, in Circuit and District Courts, shall conform, as near as may he, to those existing in like canses in courts of record of the state within which such Circuit or District Court is held, includes the state practice with reference to amendment of pleadings, unless otherwise directed hy statute.</p> <p>2. Same — Death—1Transitory Action — Jurisdiction.</p> <p>Where plaintiff’s intestate, a citizen of Illinois, was killed, by reason of defendant’s alleged negligence, in the state of Pennsylvania, an action for his death was transitory, and was therefore properly brought in Illinois.</p> <p>3. Same — Foreign Statutes — Proceeds.</p> <p>Such action was properly based on the Pennsylvania statute providing that the right of action shall vest in the widow, etc., and the proceeds of the suit, when recovered, would he distributed by the courts of Illinois, or the federal court in which the recovery was had, according to the Pennsylvania statute.</p> <p>4. Same — Parties Plaint iff— Change — Defect.</p> <p>When' an action for wrongful death occurring in Pennsylvania was erroneously brought in the name of decedent’s administrator, instead of by decedent’s widow, as provided by the Pennsylvania statute authorizing such action, an amendment of the declaration, after a demurrer thereto on that ground had been sustained, substituting the name of decedent’s widow for the name of the administrator wherever his name appeared in any material allegation therein, did not constitute the commencement of a new cause of action, or work a discontinuance of the original suit.</p>

<p>1. Master asd Servant — Employers’ Liability Law — State Courts — CONSTRUCTION — I’EDERAL COURTS — CONCLUSIVENESS.</p> <p>New York Employers’ Liability Law (Laws 1902, p. 1748, c. 600), extending and regulating the liability of employers to make compensation for personal injuries suffered by employes, having been construed by the state courts to repeal all other remedies previously available for injuries to employés within the state, and to require as a condition precedent to an action thereunder that notice of the time, place, and cause of injury shall be given within 120 days, such construction is binding on the federal courts sitting in New York in an action for injuries to an employé occurring therein.</p> <p>2. Same — Pleading—Construction .</p> <p>New York Employers’ Liability Act (Laws 1902, p. 1748, c. 600) authorizes the maintenance of an action for injuries to a servant, and requires as a condition precedent thereto that a notice of the time, place, and cause of injury shall be served within 120 days after it occurred, and Code Civ. Proc. N. Y. § 1902, authorizes the maintenance of an action to recover for death caused by negligence. Held, that where a complaint for injuries to a servant resulting in his death alleged two causes of action, the first conforming in all respects to the employers’ liability act, and the second, which attempted to plead an action for ordinary negligence vesting in the servant’s administrator, alleged that plaintiff’s intestate was in the employ of defendant when the injuries complained of were sustained and facts bringing the cause of action within the scope of the employers’ liability act, but failed to allege the service of the notice, it was insufficient.</p> <p>3. Same — Causes op Action — Joinder—Demurrer.</p> <p>Where a complaint, attempting to set up two causes of action, was demurred to, and one of such causes of action was sufficiently alleged, but the other was insufficient on its face, the demurrer would be overruled, .the second cause of action stricken, and defendant be permitted to answer.</p>

<p>1. Nonresidence — Action—Process Service — State Statutes — Validity.</p> <p>Rev. Laws Mass. c. 170, §§ 2, 3, providing that, if an action is brought by a nonresident, or one who cannot be found or served in the state, he shall be held to answer in any action brought against him therein by the defendant in the former action if the demands are such that the judgments may be set off, and authorizing service of the writ in the cross-action on the attorney who appeared for the plaintiff in the original action, does not contravene the rule that no one shall be condemned unheard, or compelled td answer a complaint in a foreign jurisdiction except on fair and reasonable notice.</p> <p>2. Same — Set-Oee—Federal Courts — Application op State Laws.</p> <p>Such act, being treated as an enlargement of the right to set off, was applicable to a suit in the federal courts sitting in Massachusetts against a foreign corporation which had previously brought suit in such court against the plaintiff in the second action.</p>

<p>In Equity. Petition for a preliminary injunction.</p>

<p>1. Jurisdiction of Federal Courts — Amount in Disfutí: — Action for Damages.</p> <p>A complaint alleging that plaintiff employed defendant to locate him on a half section of government land, which he entered under the homestead and timber acts, for which service he paid defendant $200, and seeking to recover damages for false and 'fraudulent representations as to the quantity and quality of timber on such land, does not state a cause of action for the recovery of damages beyond the amount paid defendant, if there can be any recovery, and the action is not within the jurisdiction of a. federal court, although the damages are laid in a sum exceeding the jurisdictional amount.</p>

On Motion for Discharge. The defendant was arrested on the 3d day of October, 1903, upon a warrant issued by John H. Simpson, United States commissioner for this district, such warrant being based upon a complaint duly sworn to and verified by one Thomas P. H. O’Neill, Chinese inspector, alleging that said defendant was a Chinese person, and did on said 3d day of October, 1903, come into the United States from a foreign place, and was unlawfully within the United States,…

<p>1. Shipping — Injuky op Seamen — Contributory Negligence.</p> <p>Libelant, employed as fireman on a steamship, on the second day out had his finger crushed by a furnace door, which swung shut while he was attending to the furnace in the line of his duty. The weight of evidence was to the effect that the catch which should have held the door secure when open was defective, and that the officers of the ship had been notified of the fact some time before. It further appeared that libelant had worked at the furnace for two days, and must have known the condition of the catch. Held, that both were negligent, and libelant was entitled to recover balf liis damages.</p>

<p>In Admiralty. Suit for demurrage and damages for breach of contract.</p>

<p>1. Shipping — Demtoreage—Liability op Consignoe.</p> <p>Where the consignor of cargo hires the vessel for its carriage, he is liable for demurrage on account of delay in discharging caused by the refusal of the consignee to receive the cargo, and cannot require the vessel owner, without his consent, to look to a new consignee for any part of it.</p>

<p>In Bankruptcy.</p>

<p>Tfi Admiralty.- -Suit to -recover .for- salvage services,</p>

<p>1. Olkomarg aktnf Law — Pekapties fob Vioeatton — Repeal.</p> <p>Rev. St. §§ 3450, 3453 ¡U. S. Comp. St. .1901, pp. 2277, 22781, providing forfeitures for acts done with intent to defraud the United States of an internal revenue tax, is repealed, so- far as concerns the tax on oleomargarine, by Act Aug. 2, 1880, c. 840, § 17, 24 Stat. 209 [U. S. Comp. St. 1901, p. 22341, providing a more limited forfeiture for attempts to defraud the government of the oleomargarine tax.</p>

Primarily, these' appeals present a controversy between a second mortgagee and two judgment creditors over the income of mortgaged property, a waterworks plant in Topeka, Kan. Tbe Topeka Water Supply Company, through an ordinance of the city of Topeka, obtained the privilege of-constructing and maintaining a waterworks plant in that city, upon condition that it would supply the city and its inhabitants with water upon terms prescribed in the ordinance.

This is an appeal from a decree of the Circuit Court for the District of Nebraska to the effect that the Union Pacific Railroad Company shall admit the Mason City & Ft.

In 15)01 the appellant was the owner of a tract of land in Wharton connty, Tex., originally granted to Napoleon B. Williams, but patented to his heirs March 17, 1856. This tract of land was acquired by appellant in 1874, and, while it was commonly designated as the “Napoleon B. Williams league,” it was found in 1898 that, according to the field notes set forth in the patent, it only embraced 4,817 acres of land instead of a full league of 4,428 acres.

<p>1. Bankruptcy — Claims — Contracts — Breach—Liquidated Damages — Enforcement.</p> <p>A contract for the merger of two corporations provided that defendant company should immediately cease purchasing goods, and as rapidly as possible dispose of all of its present stock to pay off its liabilities and then turn over to' claimant its remaining assets, together with its good will and business, receiving in exchange therefor paid-up shares of the capital stock of claimant at par equal to the value of the merchandise so transferred, to be fixed by appraisers, and that in case of default of either party the party in default should pay the other $10,000 as liquidated damages. Defendant compand thereafter became bankrupt before completing a sale of its property under the agreement, and its assets were insufficient to pay its liabilities. Held that, since claimant sustained no actual damages by the bankrupt’s breach of its contract, claimant was not entitled to prove the contract damages as a claim against the bankrupt’s estate.</p>

<p>1. Banks — Federal Taxation — Undivided Profits — Capital.</p> <p>Where a fund accumulated by a bank was carried on its books under the head of “profit and loss” for a period of years, and was used in the bank’s business like its other capital, such fund, though not “surplus,” should be regarded as an accretion to capital, and was therefore subject to federal taxation under Act Cong. June 13, 1898, c. 448, § 2, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2286], providing that bankers using or -employing a capital not exceeding certain amounts shall pay certain federal taxes, and that, in estimating capital, surplus shall be included.</p>

<p>1. Vessels — Sale—Contracts—Construction.</p> <p>Where a contract for the sale of a vessel required the sellers to deliver to the buyer all necessary papers and documents to vest in him a good and sufficient, unincumbered title to the ship and her equipment, together with “her unexpired insurance fully paid,” and no policies were mentioned in the contract, and the buyer did not know how many policies there were, or by what underwriters they had been issued, and only knew that the ship was insured for a certain ameran!, the contract should not be construed to require a transfer of the identical policies under which the vessel was then insured, some of which could not be transferred over the insurer’s objection, but was sufficiently complied with by an offer to vest in the buyer equivalent policies.</p> <p>2. Same.</p> <p>Where a contract for the sale of a vessel required the sellers to deliver the ship, together with her unexpired insurance fully paid up, but no policies were mentioned in the contract, and the purchaser did not know how many policies there were, nor by whom issued, the seller was not required to vest the purchaser with the title to the particular policies then covering the ship, but only title to equivalent policies.</p> <p>8. Same — Concurrent Conditions — Action for Breach.</p> <p>Where a contract oí sale requires further acts to he done than the mere delivery of the property and the payment of a price at the same time, the conditions are concurrent, and neither party to such contract can maintain an action for a breach by the other party, without showing performance of conditions on his own part, or an offer to perform, even though it is not certain, from the terms, which- is to do the first act.</p>

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

The plaintiffs' in error were convicted of perjury under an indictment which charged them witb making a false oath to an affidavit which was to be used on behalf of Frances A. Moon, in aid of her application to be placed on the pension roll of the’United States as the widow of one Pardy Rosson Moon, late a soldier in the military service of the United States, in the War of the Rebellion.

<p>1. Master and Servant — Duty to Warn Inexperienced Servant of Dangers of Service — Inspection of Telephone Poles.</p> <p>In an action by a lineman against a telephone company, by which he was employed, to recover for an injury received by the breaking and falling of a decayed pole on which he was placing a cross-arm, it appeared that he had worked at such employment for less than a year, and only in defendant’s service, and that the line on which he was working was an old one, the poles having been set for 11 years. There was evidence tending to show that plaintiff had not been-warned of the danger, nor instructed to inspect the poles before climbing them, and that he was preceded by the foreman and another whose duty it was, under the rules of the company, to make the inspection, but that they did not do so. Held, that a positive duty rested on defendant both to warn plaintiff and to require an inspection, and, the evidence being in conflict as to the performance of such duties, both questions were properly submitted to the jury.</p> <p>2- Same — Fellow Servants — Foreman Charged with Master’s Duty of Inspection.</p> <p>Where the duty of inspecting telephone poles before a lineman climbs the same is delegated by the company to a foreman, he is not a fellow servant of a lineman in that regard, but a vice principal, and the company is liable to the lineman for an injury due to the failure of the foreman to perform the duty of inspection.</p>

This is an appeal by the petitioning creditors from a judgment of the District Court for the Western District of New York, dismissing their petition and refusing to adjudicate Sears, Humbert & Co. bankrupts, on the ground that the act of bankruptcy alleged in the petition had not been established.

The case was heard in the Circuit Court on demurrer to the bill and amended bill. The demurrer being sustained, the bill and amended bill were dismissed. From the decree of dismissal the appeal is prosecuted. The bill is to enforce the liability’ of appellee, as a stockholder in the Minnesota Elevator Company, a corporation organized August 16, 1883, under the laws of Minnesota, and doing business in that state.

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

<p>1. Bankruptcy — Business Property — Sam — Proceeds — Apportionment-Landlord’s Lien.</p> <p>Where a bankrupt’s liquor stock and license were offered for sale separately, and $144.61 was bid for the stock and fixtures, and $1,000 for the license, after^which the stock, fixtures, and license were offered as an entirety, and sold for $3,500, there could be no apportionment of such sum. so as to entitle the bankrupt’s landlord, who had a lien on the stock and fixtures, which were subject to' distraint, as authorized by Laws Pa. 1891 (P. L. 122), to have a year’s rent for the premises paid in full from the proceeds of the sale.</p> <p>2. Same — Notice of Sale — Objections—Waiver.</p> <p>Where a landlord, though not having been notified of the sale of his tenant’s liquor stock, fixtures, and license in bankruptcy proceedings, attended the sale, which was made in bulk for a larger sum than was offered for the stock and fixtures and the license separately, and made no objection to the sale on the hearing of the petition for confirmation, he thereby ratified the sale, and waived the objection that he was not notified.</p>

This is an appeal from a decree of the Circuit Court of the United States for the Southern District of New York, sustaining the validity of two certain letters patent, granted to the complainant. The first of these, No. 491,113, dated February 2, 1893, is for a combination of mechanical elements constituting a bottle stopper. The second, No. 25,435, dated April 28, 1896, is for a design for a bottle stopper. The opinion of the Circuit Judge is reported in 119 Fed. 190.

<p>1. Admiralty — Suit por Collision — Issues and Proofs.</p> <p>In a libel for collision against two vessels, although separate answers are filed, and separate issues raised, all the evidence taken is properly before the court on final hearing, to be considered on all the issues to which it is relevant, no matter by what party it was put in.</p> <p>2. Collision — Tug with Log Raft in Tow — Duty of Care.</p> <p>While the fact that a tug is burdened with a heavy and unwieldy tow, like a raft of logs, may relieve her from liability for a collision in some circumstances, it also imposes on her the duty of taking extraordinary care to keep her tow out of the way of other vessels.</p> <p>3. Same — Steamship and Log Raft in Tow — Navigating in Delaware River.</p> <p>A tug which was proceeding up the Delaware river at night, with a log raft in tow, 400 feet long and 140 feet wide, wak in fault for a collision between the. tow and a meeting steamship which could have been seen when more than a mile away, where she had the raft in the main channel, which was only 250 feet wide, and to which the steamship was confined because of her draft, and made no change of course until the two vessels were within a half mile of each other. The steamship was also in fault where she kept her speed of 11 miles, and also kept her course in the center of the channel, without signaling until within half a mile of the tug, and when it was too late to avoid collision with the tow.</p>

<p>1. Mortgages — Notice of Defective Title — Possession as Notice of Equitable Claim.</p> <p>Residence property was occupied by a mother and her daughters, the legal title being in the daughters, who conducted a boarding house, while the mother occupied a room therein. Held, that the possession was presumptively in the daughters, and that one who lent money to them, taking a mortgage on the property as security, being a purchaser for value, was not charged by the joint occupancy of the mother with notice of any equitable right she might have in the property.</p> <p>2. Same — Estoppel to Assert Equitable Title.</p> <p>The owner of the equitable title to real estate, who, with full knowledge, permits the holder of the legal title to mortgage the same Cor borrowed money without objection or notice to the mortgagee, cannot set up such equitable title to defeat the mortgage; nor does a subsequent purchaser through such equitable owner after his title had been established as against the mortgagors, and who bought with notice of the mortgage, stand in any better position.</p> <p>3. Vendor and Purohaser-=-Bona Fide Purchaser- — Tax Title.</p> <p>A purchaser from one holding under a tax deed is as fully protected as a bona fide purchaser for value as one through any other source o-f title, where the proceedings were regular, and the deed conveyed the legal title.</p>

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

<p>1.' Federal Courts — Jurisdiction—.Suit to Collect Notes.</p> <p>A suit to foreclose trust deeds securing notes, with relief incidental thereto, is one to collect the money due on the notes, within Act March 3, 1887, ,c. 373, 24 Stat. 552, and Act August 13, 1888, c. 866, 25 Stat. 433 ÍU. S. Comp. St. 1901, p. 508], relative to jurisdiction of federal courts.</p> <p>2. Same — Accommodation Notes.</p> <p>K. sold lots to D., taking back notes executed by D. to his own order, and by him indorsed, secured by trust deed on the lots. On the same day D. gave K. a quitclaim of the lots. S., the trusted agent of K., without. K.’s knowledge, put up,the notes with J. as collateral for a $1,000 note of which complainant was guarantor. The $1,000 note not being paid, M. caused the collateral notes to be sold, and complainant bought them; -Held, that Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], providing that no federal court shall have jurisdiction of an action on a promissory note by an assignee thereof, unless the action might have been maintained in such court if no assignment or transfer had been made, do not deprive the court of jurisdiction of a suit by complainant to foreclose the trust deed; the notes secured thereby being accommodation notes, and K. being in legal effect the maker thereof; he also, in effect, having put them up as collateral; and complainant’s title to the note of which she was guarantor being considered to have vested when the collateral was put up, so that the collateral notes are to be treated as made by K. to complainant.</p>

Application to Review a Decision of the Board of General Appraisers. These proceedings were brought by the Hartwell Lumber Company and the Spry Lumber Company, importers, to review a decision of the Board of General Appraisers (In re John Spry Lumber Company, G. A. 5>365j T. D. 24,535) which affirmed the assessment of duty by tie collector of customs at the port of Chicago.

<p>Suit to Recover Legacy Taxes Paid. Sur demurrers.</p>

<p>Suit to Recover Legacy Taxes Paid. Sur demurrer.</p>

<p>1. Bankruptcy — Selection of Trustee — Votes foe Ineligible Candidate.</p> <p>Votes voluntarily cast for a trustee by creditors of a bankrupt acting in their own behalf cannot be rejected and ignored because the person voted for was one who could not be approved by the court, because of his previous relation to the bankrupt; and where the counting of suclx votes results in a failure to select a trustee by the requisite number of creditors and amount of claims, and no request for a second election is made, the referee is authorized to make the selection himself.</p>

Petition for review of a decision of the Board of General Appraisers denying- free importation of ten Perdieron horses, to be sold in the United States for breeding purposes. G. A. 5,247, T. D. 24,1x2.

<p>1. Chístese Exomtsion Acts — Persons Entering Da wfurly — Change of Occupation.</p> <p>A Chinaman, who has lawfully entered the United States, as a merchant, and has lawfully practiced his calling here for some time thereafter, but who is not a merchant at the time of his arrest, is not subject to deportation under existing sta tutes.</p>

<p>1. Corporations — Rights oe Creditors — Wrongful Diversión of Assets.</p> <p>A corporation, which had endeavored without success to sell an issue of bonds at 60 per cent, of their par value, received an offer of 85 per cent, for the bonds with a bonus of stock equal to 50 per cent, of the bond issue. It accepted such offer, making an agreement with its stockholders by which they furnished the stock pro rata, and received therefor 25 cents out of every 85 paid by the bond purchasers. At the same time the corporation issued to them additional stock equal to a part of the amount sold, reciting as consideration therefor the previous making of permanent betterments on its property from net profits. Helé, that such stock transaction did not affect the corporation, or the value of its assets, so as to entitle it or its bondholders or creditors to recover from the old stockholders the amounts so received by them as assets wrongfully withdrawn from the corporation; its effect, so far as creditors were concerned, being the same as though it had sold its bonds at 60 per cent.</p> <p>2. Receiver- — Right to Sue in Foreign Jurisdiction.</p> <p>A receiver of the property and assets of an insolvent corporation, appointed hy a court in the exercise of its general equity powers, cannot maintain a suit to collect moneys in another jurisdiction, either in his own name or that of the corporation, nor can he be authorized by the court to do so, unless in the exercise of a power given it by statute or otherwise it has vested title in the receiver, or whore the corporation, acting within its corporate powers, has vested him with such title or authorized him to sue in its name.</p> <p>3. Corporations — Contract with Stockholders — Suit to Annul.</p> <p>Neither a corporation nor a receiver suing in its name and behalf can maintain a suit to set aside a contract made between the corporation and all its stockholders. Such a contract can only be attacked by or on behalf of creditors who are shown to have been defrauded thereby.</p> <p>4. Same — Divídenos Received by Stockholder — Liability for Repayment.</p> <p>A stockholder is not liable to creditors of the corporation for dividends received by him in good faith while the corporation was a going concern and solvent.</p>

Petition for a Writ of Mandamus to the Circuit Court of the United States for the Southern District of Florida.

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

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York. The plaintiff in error was convicted, after trial, upon an indictment under section 5467, U. S. Rev. St. [U. S. Comp. St. 1901, p. 3691], for larceny and embezzlement from the mails. He was a letter carrier employed in the postal department at the city of New York. The facts sufficiently appear in the opinion.

This cause comes here upon writ of error to review a judgment of the Circuit Court, district of Vermont, against the plaintiffs in error, who were defendants below. Theaction is for trespass, and thejudgment was entered upon verdict of a jury in favor of defendants in error for $996. The facts sufficiently appear in the opinion. ,

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina, at Charlotte.</p>

<p>In 'Error to the District Court of the United States for the Northern District of California.</p> <p>The plaintiff in error, master of the British steamship Tucapel, was in-dieted in the District Court for the Northern District of California for an alleged violation of the provisions of section 10, c. 551, Act March 3, 1891, 26 Stat. 1086 [U. S. Comp. St. 1901, p. 1299]. The indictment contained three counts. A demurrer was interposed to this indictment upon the ground that it did not in either count set forth sufficient facts to constitute an offense against the United States. A motion was also made to quash the indictment upon the same ground.' This motion was denied. The demurrer was sus-táined as to the second and third counts, and overruled as to the first count. This count charged the plaintiff in error with having unlawfully neglected at San Francisco, Cal., to detain, on board the Tucapel, Kodrego Marquez, an alien not entitled to land, and by reason of such neglect the alien escaped from the vessel and landed in the United States. The defendant entered his plea of not guilty, and the case was tried before the court with a jury, upon the following agreed statement of facts: “(1) Defendant at all the times herein stated was, and now is, master of the British steamship Tucapel, belonging to the Pacific Steam -Navigation Company, then plying as a common carrier between San Francisco and Mexican and South and Central American ports, on the Pacific .Coast. (2) On the morning of the 25th day of June, 1901, the Tucapel, carrying passengers, a cargo of freight, and the United States mail, destined for San Francisco and elsewhere, arrived off the port of Mazatlan, Mexico, on her way north, and was anchored at a considerable distance there, off shore. She was thereupon surrounded and boarded by native boatmen and peddlers, who coming out to the vessel in small boats or cascoes, according to the practice prevailing at this and other southern ports, came on board the vessel to sell fruits and other wares to passengers and members of the crew. (3) Among- these boatmen and peddlers was Kodrego Marquez, a Mexican. (4) After remaining at anchor off Mazatlan for several hours, and completing the transaction of her business there, the vessel proceeded on her journey north, on the afternoon of said day, traveling at her usual rate of speed, of from twelve to fourteen knots an hour. She had proceeded upon her voyage about ten miles, when one of the ship’s officers reported to defendant, as master of the said vessel, that Marquez had been by accident overcarried, and was then on board the Tucapel. Defendant thereupon interviewed the Mexican, who begged him to stop the vessel, return to Mazatlan, and land him there, inasmuch as he had not noticed while plying his business on the steamer that she was under way until he had returned to her deck, a short time before his case had been reported to defendant. Marquez protested that, he did not wish to be carried to the United States, but defendant declined to accede to his request, and then return to Mazatlan, especially as it was a matter of common occurrence for a native boatman or peddler to be overcarriod from one port or place to another on the South Pacific Coast, but be promised Marquez, however, to bring him back to his native place on the return voyage of the steamer, and, without being placed on the crew list, he was set at work shoveling coal as a work-away on the voyage north. (5) The Tucapel arrived at San Francisco, June 30, 1901, with Kodrego Marquez on board, who then said he did not want to land, but to be returned to Mazatlan as soon as possible. (G) On ber arrival at San Francisco the vessel was boarded by an immigration inspector, who notified defendant not to land Marquez until permission therefor had been obtained from the commissioner of immigration at the port last named, said Marquez having no financial means whatsoever at San Francisco. (7) Marquez was not locked up nor placed in irons on board the steamer, and on the night of the 4th of July, 1901, and just before the steamer left San Francisco on her southern route, he left the vessel without the knowledge or permission of defendant, or of any of his officers, or of the officers of the immigration bureau here. (8) Defendant at no time had any intention or wish to land Kodrego Marquez at this or any other port or place in (he United States, and, as far as defendant could learn, said Marquez had at no time any intention of coming to or landing in the United States. (9) The Pacific Steam Navigation Company has withdrawn its steamers from the San Francisco route, and they, including the steamer Tucapel, are now engaged exclusively in plying between ports and places on the South Pacific Coast, as far north as Panama. The steamer sailed from San Francisco for the last time February 10, 1902. The foregoing statement is subject to any objection thereto or to any part thereof by either plaintiff or defendant on the ground that the same is immaterial or irrelevant.”</p> <p>The defendant moved to strike out certain portions of the agreed statement of facts as immaterial and irrelevant, which motion was denied. After the facts agreed upon had been read to the jury, the defendant moved the court to instruct the jury to bring in a verdict for the defendant upon the following grounds: “(1) That the indictment fails to set out that Marquez was an alien immigrant under the act of 1891, under which the indictment was framed, which relates to foreign immigration, and therefore there can he no conviction unless the indictment has set forth that fact. (2) That the indictment fails further to state a cause of action, in that it does not show in what respect this alien, if an immigrant, was a person not lawfully entitled to enter the United States. It does not show in what respect this alien was included, if at all, in one of the interdicted classes. (3) For the reason that the facts as agreed and shown to the jury do not make a case for the government in that, among other reasons, it is not shown that Marquez was an alien immigrant, and it is not shown that he came to this country with the intention of coining here, but was involuntarily carried here.”</p> <p>'This motion was denied. The court also declined to give certain instructions asked for by defendant, and gave other instructions to the jury, to all of which the defendant duly excepted. The jury returned a verdict of guilty, and the defendant was sentenced to pay a fine of $300. From this judgment the defendant brings a writ of error to this court.</p> <p>There are 10 assignments of error, covering every ruling of the court below, but, as was said by counsel for the plaintiff in error, these assignments may be grouped into three classes, and pertain “(1) to the insufficiency of the first count of the indictment as a statement of the commission by plaintiff in error of an offense against the laws of the United States; (2) to the proper construction of section 10 of the act of March 3, 1891, under which the indictment was framed, which refers to immigrants and no others; and (3) to the insufficiency of the evidence to sustain tiie verdict.”</p>

<p>Petition for Revision of Proceedings in the District Court of the United States for the Southern District of Florida, in Bankruptcy.</p> <p>Involuntary proceedings were commenced in the court below by filing the 'following petition: •,</p> <p>“To the Honorable James W. Locke,-Judge of the District Court of the United States for the Southern District of Florida: The petition of the Tefft-Weller Company, a corporation organized and existing under the laws of the state of New York, and Frederick A. Constable, Alfred G. Evans, and the estate of Hicks Arnold, partners doing business as Arnold, Constable & Company, and John T. Sherman and Charles A. Sherman and Aaron L. Reid, partners doing business as Sherman. Reid & Company, all of the city of New York and state of New York, respectively shows that Ruth E. MacDonald is a married woman, who, with her husband, M. G. MacDonald, has for many years resided in the city of Jacksonville, Duval county, Florida, and is a citizen and resident of said city, county, and state; that the said Ruth E. MacDonald for several years preceding the filing of this petition has been engaged in the business of buying, selling, and trading in dry goods, millinery, notions, bric-a-brac, and other goods, wares, and merchandise in the city of Jacksonville. Duval county, Florida, and has conducted said business in her own name, under the style of Mrs. M. G. MacDonald; that the said business, and said goods, wares, and merchandise, store, and office fixtures and furniture and store accounts are her separate personal property, and that the amounts due by said Ruth E. MacDonald in the conduct of said business to petitioners, hereinafter referred to, were incurred by her for the purchase price of the personal property, to wit; stock of goods in the store and business of said Ruth E. MacDonald, and went to the increase of her separate personal property, and that she therefore charged her separate property with the payment of the same; that the said Ruth E. MacDonald has for the greater portion of six months next preceding the date of filing this petition had her principal place of business and resided in the city of Jacksonville, Duval county, Florida, and the district aforesaid, and owes debts to the amount of one thousand dollars; that your petitioners are creditors of said Ruth E. MacDonald, having provable claims amounting,in the .aggregate, in excess of securities held by them, to the sum of five hundred dollars; that the nature and amount of your jietitioners’ claim are as follows: That the claim of the Tefft-Weller Company consists of an open account for the sum of two hundred, and thirty-seven and 21Aoo dollars ($237.21), and is for goods, wares, and merchandise sold and delivered by said the Tefft-Weller Company to said Ruth E. MacDonald, doing business as Mrs. M. G. MacDonald; that said goods, wares, and merchandise, so sold and delivered by said the Tefft-Weller Company to said Ruth E. MacDonald, went to the increase of her separate personal property, and she thereby charged her separate property with the payment of the same; that the claim of Frederick A. Consi able, Alfred G. Evans, and Hie estate of Hicks Arnold, partners doing business as Arnold, Constable & Company, consists of an open account for the sum of three hundred and thirteen and m/ioo dollars (¡>313.12), and is for goods, wares, and merchandise sold and delivered by said Arnold, Constable & Company to said liuth E. MacDonald, doing business as Mrs. M. G. MacDonald; that said goods, wares, and merchandise, so sold and delivered by said Arnold, Constable & Company to said Ruth E. MacDonald, went to the increase of her separate personal property, and she thereby charged her separate property with the payment of the same; that the claim of John T. Sherman and Charles A. Sherman and Aaron L. Ileid, partners doing business as Sherman, Reid & Company, consists of an open account for the sum of one hundred and. eighty one and 1/100 dollars ($181.01), and is for goods, wares, and merchandise sold and delivered by said Sherman, Reid & Company to said Ruth E. MacDonald, doing business as Mrs. M. G. MacDonald; that said goods, wares, and merchandise, so sold and delivered by said Sherman, Reid & Company to said Ruth E. MacDonald, went to the increase of her separate personal property, and she thereby charged her separate property with the payment of the same. And your petitioners further represent that the said Ruth R MacDonald, doing business as Mrs. M. G. MacDonald, is insolvent, and that within four months next preceding the date of filing this petition the said Ruth K. MacDonald committed an act of bankruptcy, in that she did heretofore, to wit, of the 26th day of May, 1903, while insolvent, execute and deliver to 1he Mercantile Exchange Bank, a corporation organized and existing under the laws of the state of Florida, and a creditor of the said Ruth E. MacDonald, doing business as Mrs. M. G. MacDonald, a chattel mortgage for forty-four hundred dollars ($4,400.00), on the lease of Ruth E. MacDonald, in the name of Sirs. M. G. MacDonald, to store number 102 West Forsyth street, in the city of Jacksonville, Duval county, Florida, and all of the personal property of said Ruth E. MacDonald, under the name of airs. ai. G. aiacDonald, therein contained, consisting, among other things, o-f dry goods, millinery, no lions, bric-a-brac, vases, art household furnishings, and other merchandise and stock in trade, kept and exposed for sale in said storeroom, anti also all office and store fixtures and furniture, safe, shelves, show cases, and furnishings, and also all such other personal property in said storeroom contained, said property being described in said mortgage as ‘being the; separate statutory propel11y of the said Ruth E. MacDonald,’ and that thereafter, to wir, on the 27th day of May, 1903, the said mortgage was recorded in ihe public records of Duval county, Florida, in mortgage Book 11, at.page 273; that said mortgage was given for the purpose and with the intent of securing and preferring the said Mercantile Exchange Bank over other creditors of the same class of the said Ruih E. MacDonald; that the effect of the enforcement of such, mortgage wiii be to enable the said Mercantile Exchange Bank, one of tlio creditors of the said Ruth E. MacDonald, to obtain a greater percentage of its debt than any ;other of such creditors of the same class. Wherefore,” etc.</p> <p>) Mrs. MacDonald appeared by counsel, and filed demurrer to the ’foregoing petition on the following grounds;</p> <p>“(1) There are not three or more citizens of the alleged bankrupt petitioners in the above-entitled xx'tition; (2) that there arc,' not three petitioners, creditors of the alleged bankrupt, parties to 1he above-mentioned petition; (3) that the ‘Estate of Hicks Arnold’ cannot be a party to this canse, in such words; , (4) that a partnership consisting partly of the ‘Estate of Hicks Arnold’ cannot be one of the three petitioners reynired by law in a petition for an involuntary adjudication in bankruptcy; (!>) that a married woman residing in Florida cannot bo adjudicated a bankrupt; (6) that there is no personal liability for her obligations resting upon a married woman residing and doing business within the state of Florida, which obligations would be enforceable against her. and that a married woman cannot be adjudicated a bankrupt; (7) that in this court a married woman not a free dealer cannot be adjudicated a bankrupt.”</p> <p>The court below overruled the demurrer, and this court is asked to revise the proceedings on the following grounds:</p> <p>“That at married woman residing in Florida cannot be adjudicated a bankrupt ; that there is no personal lidbility for her obligations resting upon a married woman residing and doing business within the state of Florida, which obligations would be enforceable against her, and that a married woman cannot be adjudicated a bankrupt; that in this court a married woman not a free dealer cannot be adjudicated a bankrupt."</p>

Plaintiffs in error, citizens of Texas, sued defendant in error, a New York corporation, in ah action at law on three policies of life insurance, aggregating $10,000; issued by the defendant on the life of Rudolph O. MacMahon, payable on his death to the plaintiff Agnes MacMahon, his wife, who had, before suit, assigned a half interest to her coplaintiff Charles W. Batsell.

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

Appeals from the District Court of the United States for the Eastern District of New York. These causes come here upon appeals from decree's of the District Court, Eastern District of New York, holding the steamer Alba.no solely in fault for a collision with the schooner Helen G. Moseley, which occurred about t a. m. September 10, 1901, off Tucker Beach, N. J.; the steamer being hound from New York to Newport News, and the schooner from Fernandina to New York.

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

<p>1. Marine Insurance — Insurable Interest op Charterer in Cargo.</p> <p>The charterer of a steamship has an insurable interest in goods in his possession as carrier to the full extent of their value against a loss for which it ⅛ possible that he may become responsible, and the question whether he has a right to recover on the policy is not to be determined after the loss by inquiring whether he is in fact then liable to the owners on account of such loss.</p> <p>2. Same — General Average Losses on Cargo — Construction op Policy.</p> <p>A marine policy issued to the charterer of a steamship insuring the cargo against general average charges, “as well in his or their own name as for and in the name and names of all and every other person or persons to whom the subject-matter of this policy does, may, or shall appertain in part or in all,” is to be construed as covering the entire cargo in the vessel, whether owned by the charterer or by others, and the charterer is entitled to recover thereon the full amount of general average charges apportioned- against the cargo.</p>

<p>1. United States — Action on Bond oe Contractor — Right of Priority in Fund Paid in by Surety.</p> <p>Rev. St. §§ 3466-3408 [U. S. Comp. St. 1001, p. 2314], which provides that debts due the United States shall have priority in the administration of the estates of insolvents, and that a surety who pays the debt shall be subrogated to such right of priority, do not give the United States such right of priority in a fund paid into court by the surety on the bond of a contractor for government work in discharge of the obligation of the bond, which under the statute aud its terms secures the claims of other creditors of the insolvent contractor as well as that of the United States, and in the absence of statutory provision such right of priority does not exist.</p> <p>2. Same — Distribution of Fund.</p> <p>The fact that the United States first commenced an action on the bond does not give it a right to priority, and, the fund having been paid into court, the right of the United St «tes therein under (lie statute may properly be determined by the court as against other creditors brought in without objection, although the action is one at law.</p> <p>3. Surety — Kight to Ai.uowa.vce oe Couksei. Fees — Payment oe Money into Goubt.</p> <p>The surety on the bond of a contractor, who when sued thereon pays into court the amount of the penal obligation of the bond, and is thereupon discharged from further liability, is not entitled to the allowance of counsel fees from the fund, which is insufficient to pay the claims of creditors of the principal against it.</p>

<p>Appeal from the Circuit Court of the United States for the-Southern District of New York.</p> <p>On motion to dismiss appeal o'r affirm order of the Circuit Court entered November 24, 1902.</p>

<p>L Appeal-Admission of Evidence — Haemless Erbob.</p> <p>The admission of a deposition in evidence for all purposes, if error, was harmless where it ought not to have changed the result</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal by Herman & Guinzburg, importers, from a decision of the Circuit Court (121 Fed. 201), which affirmed the decision of the Board of General Appraisers which sustained the assessment of duty by the Collector of Customs at the port of New York. The decision of the board reads as follows (In re Simon, G. A. 4511):</p> <p>Wilkinson, General Appraiser. The goods are known in trade as grass piquets. They were assessed for duty at 50 per cent, ad volorem, under paragraph 425, Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Oomp. St. 1901, p. 1675], and are claimed to be dutiable at 10 per cent, or at 20 per cent, under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], or at 30 per cent, under the provision of paragraph 449, 30 Stat 193 [U. S. Comp. St. 1901, p. 1678] for manufactures of grass. Counsel for the appellants stated that the only claim relied on was that under paragraph 449. Bach piquet is a bunch about 15 inches long, bound with wire at the end of the stems. Exhibit 1 (85,424f) consists of stalks of oats cut in the milk. Exhibit 1 (37,036f) is composed of wheat of the same character, mixed with pieces of palm leaf. Exhibit 1 (37,039f) consists of two kinds of grasses, with some artificial leaves of cotton cloth, and the other piquets are similar to the foregoing. All have been dyed to imitate the natural color of the plants, and all are used for millinery purposes. The pertinent of paragraph 425 is: “And also dressed and finished birds suitable for millinery ornaments, and artificial or ornamental feathers, fruits, grains, leaves, flowers, and stems or parts thereof, of whatever material composed, not specially provided for in this act, fifty per centum ad valorem.” The piquets in question include the stems and the leaves of the plants. The fact that the grasses are almost altogether natural does not, in the opinion of the board, exclude them from classification under the paragraph. Dyed feathers and dressed birds are no more artificial than these grasses are. We find that the goods are ornamental stems and leaves The decisions of the collector are affirmed accordingly.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal by Emil Utard, an importer, from an affirmance by the Circuit Court 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. For decisions below, see 124 Fed. 997, and In re Utard, G. A. 4,769, T. D. 22,503.</p> <p>The importer was dissatisfied with the conclusions of the board only as to the merchandise included in the board’s third finding.' The opinion of the board, so far as it refers to such merchandise, is as follows:</p> <p>-.FISCHER, General Appraiser. The protestant imported numerous perfumery bottles of various designs and patterns, which for convenience may be divided into three classes, namely: ⅞ ⅜ (3) Such as have, ground or cut glass stoppers; this class comprising all of the goods under protest, with the exception of Nos. 2,478 and 2,724. The articles were assessed for duty at 60 per cent, ad valorem under the provisions of paragraph 100 of the act of July 24, .1897, c. 11, § 1, Schedule B, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633], as cut-glass bottles, or as decorated glass bottles, and are claimed to be dutiable und^r the provisions of paragraph 99 of said act (30 Stat. 156 [U. S. Comp. St. 1901, p. 1633]). Counsel for the imjiorters relies chiefly upon the ruling lfiid down in the case of Koseherak v. United States, 39 C. C. A. 166, 98 Ecd. 596, to sustain his claim. That case arose under Act Aug. 27,1894, c. 349, § 1, Schedule B, par. 90, 28 Stat. 513, and the paragraph construed by the court was as follows : “All glass bottles, decanters, or other vessels or articles of glass, when cut, engraved, painted, colored, printed, stained, etched, or otherwise ornamented or decorated, except such as have ground necks and stoppers only, not specially provided for in this act. ⅜ * *” The court held that etched bottles were dutiable under that provision only when such etching amounted to ornamentation or decoration, and said-: “The use in the new section of the phrase, ‘not otherwise ornamented or decorated,’ after an enumeration of several processes by which an article may be ornamented or decorated, not only implies, but indicates, an understanding that this result of the enumerated processes is to be an ornament or decoration, in order to bring the article within the terms of the paragraph.” The corresponding paragraph of the present act is, however, in somewhat different form, and is as follows: “100. Glass bottles, decanters, or other vessels or articles of glass, cut, engraved, painted, colored, stained, silvered, gilded, etched, frosted, printed in any manner, or otherwise ornamented, decorated, dr ground (except such grinding as is necessary for fitting stoppers). ⅜ * *” If we apply the principle of the Koseherak Case to this paragraph, it would seem that while under the act of 1894 the “result of the enumerated processes is to be an ornament or decoration,” in the present paragraph, if the result is either an ornamentation or a decoration or a grinding, the article will be included within the terms of paragraph 100. * * *</p> <p>As to the balance of the goods before us, constituting the third class.above referred to, it appears that, while most of them are ground and cut, some of them are cut simply; yet, as cutting is a process of grinding, we are of the opinion that the articles so treated are included within the terms “ornamented, decorated, or ground,” of paragraph 100, and are dutiable under said paragraph if the grinding is more than is necessary for fitting the stoppers. From the testimony in the case and tic samples before us, we find that such grinding * * * is 'in fact more than is necessary for fitting stoppers, and that it considerably improves the appearance of the bottles, giving the stoppers the appearance of cut glass, and relieving them of the common and cheap appearance they had when taken from the pressing mold, and we hold that these bottles are therefore dutiable under paragraph 100, as assessed. * * *</p> <p>The point is made by the importers that the cost of cutting the stoppers of the bottles is so small that the classification of the* articles should not be changed on that account, and the maxim, “De minimis non curat lex,” is invoked. From the importer’s own brief it appears, however, that the cost of the labor thus expended constitutes on an average over 12 per cent, of the cost of the bottles; for while the price paid, as appears by the affidavit in evidence, is only 4 centimes for each, the brief of counsel for the importers states that the average cost of the bottles is 3.78 francs per dozen, or 31.5 centimes each. But, even were the cost of the labor considerably less, it could not be disregarded, in view of the decisions of the courts. In the ease of Saltonstall v. Wiebusch, 156 U. S. 601, 604, 15 Sup. Ct. 476, 477, 39 L. Ed. 04!), the Supreme Court said: “The fact that the further process which the articles underwent represented but three or four per cent, of the total labor expended upon them is by no means decisive when it is a question of classification, since the very object of Congress may be to protect the additional labor. " The lines between different articles enumerated in the tariff law are sometimes very nicely drawn, and a trifling amount of labor is often sufficient to change the nature of the article and determine its classification.” And in the case of United States v. Hinsberger Cut-Glass Company (O. C.) 94 Fed. 645, the court, discussing the word “ground” as used in the very paragraph here under discussion, said: “Counsel for the importers contends that Congress could not have meant to provide for such an infinitesimal amount of cutting, and must have intended to cover, by the provision for articles of ground glass, only those where the grinding was done for a permanent purpose. But the court would not be authorized in thus contradicting the express provision of the statute. It is clear that this grinding is intentional and for some purpose, and as the language of the statute includes all grinding except for stoppers for bottles, and inasmuch as the bowl is an ‘article of glass,’ I think it is dutiable, under the provisions of paragraph 100, at 60 per cent, ad valorem.” Furthermore, while the act of 1894 excepted from the operation of paragraph 90 such bottles as had “ground necks or stoppers only,” the exception in the corresponding paragraph of the present act is only as to such “grinding as is necessary for fitting stoppers,” making it clear that Congress intended to include in the present paragraph bottles where the grinding, although confined to the stoppers only, was more than necessary to fit the stoppers.</p> <p>We accordingly * * * overrule the protests.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.</p> <p>This appellee, Hancock, brought this suit in-equity, complaining of the infringement by the appellant, Sanders, of three several patents, one of them being patent No. 556,972, dated March 24, 1896, issued to Keating as assignee of Hardy, and subsequently assigned by Keating to the complainant; another being patent No. 643,499, dated February 13, 1900, issued to the complainant; and the third, being patent No. 692,655, dated February 4, 1902, also issued to the complainant; and praying for an injunction and for profits and damages resulting from the alleged infringement. All of the patents above mentioned were for inventions of “improvements in rotary disc plows.” The defendant answered the bill, denying that the several persons who were alleged to have invented the improvements for which the respective patents were grantéd were in fact the original inventors thereof, and he also denied infringement of any of said patents. The judge of the Circuit Court awarded a preliminary injunction pendente lite. The complainant filed a replication. Proofs were taken, and, the cause having been brought bn for hearing, the court dismissed the bill as to patent No. 643,499, but decreed for the complainant in respect to the second claim of patent No. 556,972, and all of the claims, of which there were seven, of patent No. 692,655, awarding a perpetual injunction, and the recovery of profits and damages, for the ascertainment of which a reference to the master was ordered. Thereupon the defendant appealed.</p> <p>The following opinions were filed in the Circuit Court by CLARK, District Judge, the first on motion for preliminary injunction, May'2, 3902:</p> <p>“In disposing of the question now before the court it is not permissible or desirable that any extended discussion of the issues presented should be entered upon. On the contrary, It has often been ruled that the court, from the very nature of the proceedings, should examine the case only far enough to ascertain whether the plaintiff has an apparent title to protection, • and the court is not expected to enter into inquiry concerning difficult questions of law, or the weight and value of conflicting evidence. 3 Robinson on Patents, §§ 1173-1210; Wise v. Grand Avenue Ey. Oo. (O. 0.) 33 Fed. 277, and cases there cited.</p> <p>“It may be useful to restate here certain general principles which apply on the hearing for a preliminary injunction, and some of which apply as well on final adjudication. It is well settled that a mere conception or idea of a desirable function or result, resting in the mind, which might be obtained by a machine or device, is not invention, either for the purpose of obtaining a monopoly, or for the purpose of making the defense of prior invention. Invention, in the legal sense, must involve a practical, successful, operative device. Rubber Tip Pencil Oo. v. Howard, 20 Wall. 498, 22 L. Ed. 410; 1 Robinson on Patents, § 335; Knapp v. Morss, 150 U. S. 221, 14 Sup. Ot. 81, 37 L. Ed. 1059; 2 Greenleaf on Evidence [16th Ed.] § 495, and cases cited. It must be a perfected invention, and either put to practical use, or be clearly capable of such use, and the novelty of an invention is not negatived by a prior useless process or thing. Walker on Patents [3d Ed.] § 65. Nor is anticipation made out by a device which might, by slight modification, be made to perform the same function, if the prior invention were not designed by its maker nor adapted to actual use for the performance of such function. Topliff v. Topliff et ah, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Krementz v. The S. Cottle Co., 148 U. S. 556, 13 Sup. Ct. 719, 37 L. Ed. 558; Clough v. Barker, 106 U. S. 166, 1 Sup. Ct. 188, 27 L. Ed. 131. And of course the prior invention, when relied upon as anticipating, must be a complete. operative instrument, and the burden to show this is on defendant. 2 Greenleaf on Evidence [16th Ed.] §§ 501-503, and notes. Another well-settled proposition is that even in a combination patent infringement is well established whenever the alleged infringing device accomplishes the same result, and substantially in the same way. Cantrell et al. v. Wallick, 117 U. S. 689, 6 Sup. Ct 970, 29 L. Ed. 1017; Rowell et ah v. Lindsay et ah, 113 U. S. 97, 5 Sup. Ct. 507, 28 L. Ed. 906; Machine Company v. Murphy, 97 U. S. 120, 24 L. Ed. 935. And mere colorable and immaterial difference in the mechanical arrangement and adjustment, or difference in the form of parts of the structure, or methods of fastening or bolting such forms together, does not avoid infringement, as omitting an element, so long as the same result is obtained, and substantially in the same way. Morey v. Lockwood, 8 Wall. 230, 19 L. Ed. 339; Winans v. Denmead, 15 How. 330, 14 L. Ed. 717; Westinghouse v. Boyden Power Brake Co., 170 IT. S. 537, 18 Sup. Ct. 707, 42 L. Ed. 1136; Walker on Patents, §§ 350-353, 363-368, and illustrative cases. Nor for similar reasons will an immaterial addition avoid infringement. Walker on Patents, § 347. And no rearrangement or transposition of the parts or substitution of one thing for another avoid infringement, so long as the fact remains that the same result is worked out in practically the same way. Walker on Patents, §§ 348, 350.</p> <p>“Attention may, I think, be called to the now well-established doctrine of the recent cases in regard to combination patents, which put those inventions on a different footing from what the tendency of the reasoning of the older cases put ,them. The older cases are well calculated to create the impression that a combination patent must in all cases receive a. narrow construction, and that such an invention is hardly eniitled to the benefit of the doctrine of equivalents. It has been demonstrated, and particularly in recent years, that patents which satisfy in the highest degree the requirements of the public, and a growing and complex business establishment such as ours, are not limited to the class called the primary or pioneer patents, but include combination patents. Indeed, the practical utility, and the change from failure to success, is shown in the highest degree in combination patents, and in view of this a more liberal attitude is now shown towards such patents. In the case of Erammer v. Schroeder, 106 Eed. 918, 920-921, 46 C. C. A. 41, the result of the more modern cases is restated by Judge Sanborn in the following language : ‘One who invents and secures a patent for a machine or combination which first performs a useful function is thereby protected against all machines and combinations which perform the same function by equivalent mechanical devices. ⅜ * * In other words, the term mechanical equivalent, when applied to the interpretation of a pioneer patent, has a broad and generous signification. This general rule of law, like every other .principle of jurisprudence, applies equally to all patents, whether for combinations, machines, or combinations of matter. If, however, one invents and secures a patent for a new combination of old mechanical elements, which first performs a useful function, he is protected against all machines and combinations which perform the same function by equivalent mechanical devices, to the same extent and in the same way as one who invents and patents a machine or composition of matter of like primary character. The doctrine of mechanical equivalents is governed by the same rules, and has the same application, when the infringement of a patent for a combination is in question as when the issue is over the infringement of a patent for any other invention. Imhaeuser v. Buerk, 101 U. S. 647, 053, 25 D. Ed. 945; Griswold v. Harker, (¡2 Fed. 389, 301, 10 O. O. A. 435, 437, 27 U. S. App. 122, 150; Thomson v. Bank, 53 Fed. 250, 253, 3 O. O. A. 518, 521, .10 U. S. App. 500, 509; Seymour v. Osborne, 11 Wall. 516, 542, 548, 20 L. Ed. 33; Bees v. Gould, 15 Wall. 187. 189, 21 L. Ed. 39; Eay v. Cordesman, 109 U. S. -408, 420, 3 Sup. Ct. 236, 27 L. Ed. 979; Watermeter Co. v. Desper, 101 U. S. 332, 25 L. Ed. 1024; Gage v. Herring, 107 U. S. 640, 2 Sup. Ct. 819, 27 L. Ed. «01; Machine Co. v. Murphy, 97 U. S. 120, 24 L. Ed.' 935; National Cash Itegister Co: v. American Cash Itegister Co., 53 Fed. 367, 373, 3 C. C. A. 559, 565, 3 U. S. App. 340, 357; Belding Mfg. Co. v. Challenge Corn Planter Co., 152 U. S. 100, 14 Sup. Ct. 492, 38 L. Éd. 370.’</p> <p>“And in the case of Keystone Manufacturing Company v. Adams, 151 U. S. 139, 14 Sup. Ct. 295, 38 D. Ed. 103, Mr. Justice Shiras, speaking for the court, said: ‘Where the patented invention consists of an improvement of machines previously existing, it is not always easy to point out what it is that distinguishes a new and suecesssful machine from an old and ineffectual one. But when, in a class of machines so widely used as those in question, it is made to appear that at last, after repeated and futile attempts, a machine has been contrived which accomplishes the result desired, and when the Patent Office has granted a patent to the successful inventor, the courts should not be ready to adopt a narrow or. astute construction fatal to tlie grant.’ And so in the case of Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 18 Sup. Ct. 707, 42 D. Ed. 1136, Mr. Justice Brown, speaking for the court, said: ‘The fact that this invention was first in the line of those which resulted in placing it within the power of an engineer, running a long train, to stop in about half the time and half the distance within which any similar train had stopped, is certainly deserving of recognition, and entitles the patent to a liberality of construction which would not be accorded to an ordinary improvement upon prior devices.’ And in another of these Westinghouse cases, namely, Westinghouse Air-Brake Co. v. New York Air-Brake Co., 63 Fed. 962, 11 C. C. A. 528, Judge Shipman, giving the opinion of the Circuit Court of Appeals for the Second Circuit, said; ‘It is not important now to determine the grade of its pioneership, and whether it may be classed in the list of those inventions which are of the highest rank; hut it was an invention created to achieve great necessities and overcome great hindrances, and was one of wide breadth. A court would not ho justified in adopting a “narrow or astute construction” which would minimize the character of the invention, leave its real scope open to trespassers, and thus be “fatal to the grant.” ’</p> <p>“I have set out the foregoing as a brief statement of the legal view under which the case is to be considered. It is well understood by the eminent counsel who are giving the case attention on both sidos that I am not expected, on this hearing, to consider the case with a view of disposing finally of any serious issue of law or fact. Ib,is manifest that I should not do so, as the affidavits of witnesses, as now presented, constitute an ex parte statement of the witnesses only, without the advantage of cross-examination, and certainly without the advantage of fullness in any respect.</p> <p>■ .“Now, in regard to the various patents relied on by the defendant as anticipating those of the plaintiff, it would become necessary for the defendant to show that these -were practical, successful inventions, us a mere patent on paper, accompanied with drawings or models, never reduced to practice, does not constitute anticipation. The patent must have been put into practical use, or must clearly have been such a patent as that it could have-been put into practical uso, and nothing short of this constitutes anticipation. And in order that the defendant might make good, if he can, the defense of prior invention, it would be necessary, in almost any ease, to go fully into the evidence on that subject, which has not been done, and could not be done on this hearing.</p> <p>“It is quite obvious, without stating more, that, the court can act only on prima facie impressions of the case on this hearing, although in the main those impressions should be clear and satisfactory, in view of the fact that the case is necessarily imperfectly developed at this time. And because the court does not and cannot decide any of these issues finally, it would not be well for the court to discuss the facts found in this record, as these facts appear on an ex parte or prima facie showing, 'and 1 thereby purposely avoid doing so.</p> <p>“It is sufficient now to say that I think this case-has been brought fully within the doctrine of the case of Blount v. Socifttfi Anonyme Du Filtre Oham-berland & Systeme Pastern- et al., 58 Fed. 08, 8 G. C. A. 455, and this case has been often cited, approved, and followed by'the Circuit Court of Appeals for this circuit in subsequent decisions, and must be regarded as controlling authority for this court.</p> <p>“After a study of the affidavits of the expert, and after making a comparison of the two models by inspection, I conclude, on the record as it now is, that, with the exception of the seventh claim in the first of the llnncopk patents, the claims actually in question, and about which serious issue was made on the hearing, are valid, and that they are infringed by the mabliine made and sold by the defendant.</p> <p>“It strikes me that such changes as appear to exist between the defendant’s machine and that of the plaintiff are immaterial, changes simply in form and in the method of adjusting the parts, and still more by the simple rearrangement and transposition of some of the structural parts of the machiné, and the substitution in one or two instances of parts which are exactly the functional equivalent of the parts for which they are substituted.</p> <p>“The circumstances which appear in the record, as it is now made up, that the plaintiff has devoted years of earnest study, and has expended large sums of money, in efforts to design and complete his invention, while the defendant has devoted no such time, and incurred no such expense, is a circumstance which is significant in the examination of these questions. It is established, as Hie record now is, and not controverted, that such study as the, defendant has given has been with a view to so modify the plaintiff’s machine as to avoid infringing it, and he does not, as llie case now is* appear at any time to llave entered upon any original inquiry, with a view to the exercise of his inventive genius, if he possesses any such genius. ’Phis is clearly proven by the expert mechanic of the Chattanooga Plow Works, and is not controverted by the defendant.</p> <p>“And I will make but one more reference to the facts, and that is thai (he expert mechanics of some of the very largest manufacturing establishments in the country prove that they have carefully studied the plaintiff’s invention, with a view to the very question of infringement, and that after such study it was concluded that the patent was valid, and accordingly contracts were made with the plaintiff, by which a license was obtained to make the machine in accordance with his patents and claims. This is public acquiescence in the very highest and best sense of the term, as used in the adjudged ease's. Indeed, in this feature it cannot be controverted that the case is unusually strong.</p> <p>“I have now said all that I feci should be said on this prima facie showing, and until the case shall have been seriously entered upon, and the issues made determined by careful examination of the prior state of the art, with (lie aid furnished by experts, subjected to the valuable test of cross-examination. It is settled beyond question that tin determining whether a preliminary injunction shall issue I consider merely whether there is a strongly probable prima facie case made, and then I compare the inconvenience and injury which may result to one side by granting the injunction with such inconvenience and injury as may result to the plaintiff in a denial of suclt injunction. The court is always, on an issue like this, discharging a delicate duty, and it is unpleasant in any case to award an injunction which does or may seriously interfere with any person’s business, and it is quite unpleasant to feel the necessity of doing so in this case; but my views on this showing are such that I am left no choice but to allow the injunction, except as to the seventh claim.</p> <p>“This injunction will become effective and .operative from and after May 5, 1902, at which time it is conceded the present season of demand for these plows will be over. From the order allowing this injunction an appeal lies at once to the Circuit Court of Appeals, without waiting for further hearing, and the case in that court is given precedence over other cases, and it is easy to have the case reviewed and the questions adjudged by the Circuit Court of Appeals before the date when another season of demand for these plows opens, and this appeal does not interfere with the speedy preparation of the ease for final hearing on its merits. The plaintiff is expected at once to enter, with all reasonable speed, upon the preparation of the case, and if the plaintiff shall fail to do this it is open to the defendant to make application to the Court for such order as will be sufficient to meet any apparent disposition to delay, which is, of course, not to be expected.</p> <p>“The plaintiff will execute before the clerk of this court, with satisfactory surety, bond in the sum of $10,000, conditioned to indemnify and save the defendant against any damage which may result from the issuance of this injunction, in the event the plaintiff fails in the law suit. If a bond in this sum is not adequate, or if in consequence of future events it would become inadequate to fully protect the defendant, application can then be made to the court for a further order to increase the bond.</p> <p>“The defendant is allowed to proceed under the conditions heretofore prescribed in the festraining order until May 5, 1902, at which date the injunction now granted will become effective, and restrain the defendant from further making or selling the machine complained of as an infringement in the bill. On May 5, 1902, the injunction will become fully effective."</p> <p>Supplemental Opinion.</p> <p>(May 4, 1902.)</p> <p>“A memorandum opinion indicating my views in this case, very shortly stated, was forwarded to the clerk yesterday. To-day I am furnished, through courtesy, with the advance sheet opinion of the Circuit Court of Appeals for this circuit in the cases of the Dowagiac Manufacturing Co. v. The Superior Drill Co. and P. P. Mast & Co. v. The Superior Drill Co. (which were submitted on February 11, 1902, and decided April 8, 1902) 115 Fed. 886, 63 C. C. A. 36.</p> <p>“In view of the fact that the opinions of the Circuit Court of Appeals are controlling and absolute authority for this court, and also because the case is an exceedingly well-considered one, and a most instructive one, I deem it proper that I should call attention of counsel on both sides to this opinion as a most important citation to make, in addition to those already made. In the memorandum opinion already filed I quoted liberally from the opinion of Judge Sanborn in the case of National Hollow Brake Beam Co. et al. v. Interchangeable Brake Beam Co., 106 Fed. 693, 45 C. C. A. 544, to show that in a combination patent the doctrine of mechanical equivalents is governed by the same rule as when the infringement complained of is in relation to a patent for any other invention within certain limits, indicated in the opinion of ' Judge Sanborn, and now again in the opinion just cited. It will be seen that the Circuit Court of Appeals expressly approves the opinion of Judge Sanborn in the case just cited. It will also be noticed, of course, that the patent involved in the opinion of Judge Severens related to that class of drain drills known as ‘disc drills,’ and the case in all its bearings is a close analogy, I think, to the one at bar.”</p> <p>Opinion on Final Hearing.</p> <p>(April 11, 1903.)</p> <p>"This case is now before the court on final hearing, having also been before the court on two former occasions, when the same questions were elaborately discussed by eminent counsel, and given such study by the court as the importance of the issues demanded. In view of this situation, and of the fact Hint a written opinion was filed when the case was up for consideration on the application for preliminary injunction, it is not necessary now that the same ground should be gone over again in this opinion, and it seems quite sufficient to state, in the briefest form possible, the result arrived at on a final study of the case, and counsel will understand the bearing of such brief observations as are necessary quite as well as from an elaborate opinion.</p> <p>“Giving, then, the result, in condensed form, it seems sufficient to say that I conclude that claim 2 of the Hardy patent, No. 556,972, is valid, and the defendant does not controvert that the plow made by him is an infringement, if this claim 2 of the Hardy pa tent is to be regarded as valid. The only issue made on the claim of that patent is one of validity, and not of infringement. It is conceded that claim 4 of the Hancock patent of 1900 is not infringed, and this renders any ruling on the question of its validity immaterial, and, in view of the fact that the defendant changed his plow construction so as to avoid any objections under claims 5 and 6, I do not lvgard those claims as now in issue or calling for judgment. In reference to claim 7, I have been unable to change my opinion as formed when the case was under consideration on the application for injunction. There is much force, indeed, in the contention chat as this claim covers a particular construction, being a specifically manufactured model, that it is patentable. Viewed in this light, the question must he regarded as close; but I conclude again, upon this final study of the case, that claim 7 is not valid. I also reach the conclusion, as on the former hearing, that the claims of the Hancock patent of 1902, No. 692,055, are valid, and that they ar,e infringed by the defendant’s construction. As before stated, I do not deem it necessary to go over the ground again in relation to this particular patent. It results from these views, upon the whole case, that the injunction is allowed as to claim 2 of the Hardy patent, and denied as to all the claims in issue in relation to the Hancock patent of 1900. An injunction is also allowed on the claims of the Hancock patent of 1902. Of course, if it is desired, the usual account for profits and damages will he allowed, and the costs will, agreeably to the general rule, bo taxed against the defendant.”</p>

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

<p>1. Master and Servant — Inventions by Employé — Right op Employer to Patents.</p> <p>An obligation on the part of an employé to assign to Ms employer patents obtained for inventions made in the course of his employment does not arise from the relation of employer and employé, but can only be created by an express contract.</p> <p>2. Patents — Parol Contract to Assign — Validity and Enforcement.</p> <p>A parol agreement to assign the right to obtain a patent for an invention is valid, and, when established by sufficient proof, may be specifically enforced in equity.</p> <p>3. Specific Performance — Parol Contract — Sufficiency of Proof.</p> <p>To authorize a court of equity to decree the specific performance of a parol contract, not only the contract itself, but its terms, must be clearly proven.</p> <p>4. Patents — Agreement to Assign, to Employer — Evidence-to Establish.</p> <p>The fact that an employs assigned to his employer the right to patents applied for by him for inventions made in the course of his employment does not alone warrant an inference that he was bound by a contract to assign all such inventions, especially where his action is reasonably explained on other grounds.</p> <p>5. Same.</p> <p>Evidence considered, and held insufficient to establish a contract by an employé to assign to his employer the patent rights in inventions made By him in the course of his employment, either express or implied.</p>

In Equity. Suit for infringement of letters patent Nos. 495,883 and 508,542, for ore roasting furnaces, granted in April and November, 1893, respectively, to R. C. Greer, and No. 520,481, for an improvement in such furnaces granted to O. W. Davis, Jr., May 29, 1894. On final hearing.

<p>On Exceptions- to Master’s Report.</p>

<p>1. Shipping — Charter Party — Carrying Capacity of Vessel.</p> <p>Evidence A eld insufficient to sustain the claim of a charterer that the vessel did not have the carrying capacity guarantied by the charter.</p>

<p>1. Corporations — Bonds—Guaranty bt Another Corporation — -Umra Vibes.</p> <p>Defendant railroad company, as a part of a contract for the extension of its road and for the construction of a blast furnace by an iron coni-pany, agreed to guaranty the iron company's bonds issued for the construction of the blast furnace, and on receiving the bonds executed a guaranty thereon, and sent them to a bank in New York for sale. Plaintiff purchased certain of the bonds of the bank, the proceeds being remitted to defendant, by which the money was paid to the iron company in satisfaction of the amount which the iron company expended under its agreement with defendant in the erection of the furnaces. Bchi: that defendant’s receipt of the proceeds of the bonds completed the transaction so far as plaintiff was concerned, and (hat defendant was therefore liable to plaintiff on tiie guaranty without regard to whether defendant had power to bind itself by guaranty for the benefit of the iron company.</p>

<p>On application by Rewis German & Co., importers, for review of 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>

On application by Ernst Kaufmann, importer, for review of 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>On application by Miller, Sloane & Wright, importers, for a review of the decision (In re Miller, G. A. 5,067) of the Board of General Appraisers, which affirmed the assessment of duty by the Collector of Customs at the port of New York.</p>

On application by Emil E. Boas, importer, to review a decision of the Board of General Appraisers, which affirmed the assessment of duty by the Collector óf Customs at the port of New York.

<p>On application by Veil Bros., 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. Note G. A. 4,646.</p>

On application by Ludwig Victor, importer, for review of a decision (In re Victor, G. A. 5,296) of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York.

<p>On application by George Meier & Co., importers, for a review of the decision (In re Riessner, G. A. 5,150) of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York.</p>

On application by the United States to review a decision of the Board of General Appraisers, which reversed the assessment of duty by the collector of customs on certain merchandise imported at the port of New York by Strauss Bros. & Co.

This is an action brought by the plaintiff, as administratrix, to recover for the alleged wrongful death of Thomas M. Kane, a fireman in the employ of the defendant company, which occurred December 17, ⅜7.

At Raw. On rule for judgment in favor of defendant non obstante veredicto on reserved point. Held: of further examining said goods to determine their value and the loss or damage sustained thereon, and calling attention to the fact that the said companies had the right, if iliey desired, to take ilie stock, or, in case of disagreement as to the extent of the loss, to have the same determined by appraisement, and thereupon…

<p>1. Attachment — Surrender op Property to Receiver Under Stipulation —Insufficient Description in Sheriff’s Return.</p> <p>The right to certain personal property of a corporation being in dispute between an attaching creditor and a receiver subsequently appointed by a federal court in a suit to foreclose a mortgage given by the company, a stipulation was made and approved by the court in the foreclosure suit by which the property was turned over to the receiver, to be sold without prejudice to the right of either party to assert his claim against the proceeds. Subsequently a trastee in insolvency was appointed for the corporation by a state court, who by leave intervened in the foreclosure suit, and asserted his right to the properly, which he admitted in his pleading was retained by the sheriff under the attachment until surrendered to the receiver under the stipulation referred to. Some time after such surrender the sheriff made return on the attachment, in 'which, through mistake, he failed to describe certain of the property as required by (lie law of the slate, although such property had been actually seized by him, and was surrendered under the stipulation. Hold that, as the, making of the return after the surrender of the property was .unnecessary, it could not affect the rights of the attaching creditor under the stipulation, which <;stopped both the receiver and the trustee, who succeeded to the rights of the corporation, from denying the right of the attaching creditor to assert his claim to all of the property surrendered thereunder.</p> <p>2. Same.</p> <p>Tie right to certain property being in dispute between a mortgagee, an attaching creditor and a trustee in insolvency of the debtor, the mortgagee and the trustee entered into a stipulation to divide the proceeds. Held, that such stipulation operated to surrender any rights of the mortgagee in one-half of the proceeds, but did not affect the right of the attaching creditor, who was not a party thereto, to assert his claim to such half as against the trustee.</p> <p>3. Same.</p> <p>Where an attaching creditor has surrendered property to a receiver under a stipulation and order of the court appointing the receiver preserving his right to assert his lien against the proceeds, the court will not permit his rights therein to be defeated by the receiver, or others subsequently intervening in the suit, on any technical ground.</p>

<p>In Equity. Suits to foreclose mortgages.</p>

<p>1. Federal Coubts — Jurisdiction — Taxation — Injunction — Amount Involved.</p> <p>Under Act Aug. 13, 1888, e. 866, § 1, 25 Stat. 434 [U. S. Comp. St. 1901, p. 508], limiting the jurisdiction of the Circuit Courts of the United States to suits where the matter in dispute, exclusive of interest and costs, exceeds the sum or value of $2,000, such court had no jurisdiction of a suit to restrain the enforcement of a personal state tax amounting only to $80, though the tax constituted a cloud on the complainant’s title to realty the value of which exceeded $2,000.</p>

This action is by bill in equity. Defendant Wishard has filed a plea, now for determination. The bill is as follows: For many years prior to 1890 the defendant the Des Moines Doan & Trust Company, of Des Moines, Iowa, was engaged in loaning money on real estate security in Iowa and other norihwestem states, and in selling notes, bonds, arid securities to parties in the Fast.

In Equity. On demurrer to amended bill. This case is pending on an amended bill in equity and demurrers filed by defendants. From the amended bill it appears that the defendant water company owned a system of waterworks at Ottumwa, Iowa. - April 15, 1887, it executed 400 of its mortgage bonds, of $1,000, each bearing 6 per cent, interest, payable semiannually, secured by a mortgage on its property, rights, franchises, which mortgage was made to the defendant trust company.

<p>1. Mechanics’ Liens — Original Contractor — Materialmen—Filing Lien-Time.</p> <p>Where complainant contracted with defendant, the owner of certain premises, to furnish mining machinery, appliances, and materials, and install the same in a mill to be erected at defendant’s mines, and con- , strueted by defendant without any other contractor, plaintiff was an original contractor, and not a materialman, within Cutting’s Comp. Laws, § 3885, and therefore was entitled to 60 days within which to lile his claim for a lien.</p> <p>2. Same — Waiver of Lien.</p> <p>A contractor for the sale of machinery to be set in an ore-concentrating mill does not waive his right to a mechanic’s lien by stipulating in the contract that the title to the machinery should not pass to the purchaser until all payments should he fully made in cash.</p>

<p>In Admiralty. Suit in rem to recover for injury to scow.</p>

<p>In Bankruptcy.</p>

In Admiralty. Suit for demurrage. Libel ior demurrage, alleging unreasonable delay In discharging a cargo of coal, under charter for delivery at “Clancy’s dock,” port of Racine, with no terms stated as to discharge. The rate was 00 cents per ton, being 10 cents in excess of the current rate to Milwaukee, Sheboygan, and Manitowoc; and the master states, as the ground for such excess, the insufficiency of channel at Racine for the general class of coal carriers.

<p>1. Oorvoeations — Legality of Acts — Defense of Ultra Vibes.</p> <p>The plea of ultra vires will not prevail, whether raised for or against the corporation, when its effect would he to accomplish a legal wrong.</p> <p>2. Same — Issuance oe Bonds — Considebation.</p> <p>Under the New York statute (Laws 1890, p. 1078, c. 564) which permits corporations to issue stock or bonds only for money, labor, or property received, a corporation may lawfully issue its bonds in exchange for the promissory note of an individual who is solvent, where the transaction is in good faith.</p>

<p>1. Partnership — Sale oe Lands — Share in Profits.</p> <p>An agreement to «liare in the profits of tlio sales o£ land to be piir-chascd is not of itself sufficient to constitute a partnership.</p> <p>2. Sauk--Agreement with Reference to Land — Statute oif Frauds.</p> <p>AVhere an alleged agreement provided that certain land to be purchased should be held in equal interests between plaintiff and two others, subject to a charge in favor of L. for the irarchase price and interest, or that it should lie partitioned between the parties as they might thereafter agree, the profits on such sales as the parties might consent to make, to be divided, such contract had reference to the title to laud, and was therefore within the statute of frauds.</p> <p>3. Sauk — Agreement to Reduce Principal Agreement to Writing.</p> <p>Where a parol agreement for the purchase and sale of lauds was void under file statute of frauds, it could not be aided by the further parol agreement to reduce the principal agreement to writing.</p> <p>4. Same — Adequate Remedy at Law.</p> <p>Where plaintiff entered into a imrol agreement to receive an Interest', in timber land to he purchased, in consideration of his sendees in selecting the same, which agreement was void, under the statute of frauds, because not in writing, plaintiff had an adequate remedy at law on breach of the agreement, by an action for the value of the services performed.</p>

<p>1. -Chinese — Exclusion—Witnesses—Credibility.</p> <p>In Chinese deportation proceedings, the fact that accused was in the United States and engaged in business as a merchant.at the time of the passage of Act Cong. May 5, 1892, c. GO, 27 Stat. 25 I.U. S. Comp. St. 1901, P- 1319], providing for the registration of Chinese laborers, may he estab-l'ished by Chinese witnesses.</p> <p>2. Same — Registration.</p> <p>Where at the time of the passage of Act Cong. May 5, 1892, c. GO, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1319]', providing for the registration of Chinese laborers, a Chinese person thereafter charged to be unlawfully in'the United States was in the. United States and engaged in business as a merchant, and was therefore not entitled to registration as a laborer under such act, he was not subject to deportation, though he subsequently became a laborer.</p> <p>3.- Same — Evidence.</p> <p>Evidence in Chinese deportation proceedings held to establish that defendant was a resident of the state of Montana, and engaged in business there as a merchant, prior to the passage of Act Cong. May 5, 1892, c. 60, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1319], and was therefore not subject to deportation.'</p>

<p>L Equitv Pleading — Bill—Defects Warranting Striking from Files.</p> <p>Mere prolixity and verbosity in a bill do not warrant striking it from the files, when,the redundant matter can to a large extent be eliminated on exceptions.</p> <p>2. Same — Impertinence.</p> <p>In a bill filed against an insurance association by members to secure its dissolution on the ground of insolvency and the illegality of a reincorporation, specific allegations of mismanagement and fraud on the part of certain officers who are not parties, and as to whom no relief is asked, are Impertinent, and on exceptions will be stricken out.</p>

<p>1. Bankruptcy — Partnership—Distribution Between Firm and Individual Creditors.</p> <p>In a partnership bankruptcy, where it appears that there is no solvent living partner, and there are no assets in the partnership estate, the creditors ot such estate are entitled to share ratably with the creditors of the individual partners in the estates oí such partners.</p>

<p>1. Aliens — Deportation—Pboceedings—Limitation.</p> <p>Where a proceeding for the deportation, of an alien, as authorized hy Act March 3, 1801, c. 551, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1294], was not begun by the seizure of the alien within one year next after his last entry into the United States, as required by section 11 (26 Stat. 1086 [U. S. Comp. St. 1901, p. 1299]), the proceeding was barred.</p>

. This is an action brought by Charles Gilbert, the plaintiff in error, against the Burlington, Cedar Rapids & Northern Railway Company and the Chicago, Rock Island & Pacific Railway Company to… Held: and which, when tlie cotip-ling apparatus is in order, may be raised and held by the manipulation of a lever upon the outside of tlie car. which is attached to a pin by means of a rod and chain.

• In-Error to the Circuit Court of the United States for the Southern District of New York. This cause comes here upon writ of error to review a judgment of the United States Circuit Court for the Southern District of New York, entered in favor of defendant on a verdict of a jury.

This cause comes here upon writ of error by defendant in the court below to review the rulings, refusals to charge, and certain portions of the charge of the United States Circuit Court for the Southern District of New York on the trial of an action at law brought by Isabella M. Littell, a resident of the state of New Jersey, against the defendant, to recover damages for having been put off its train while a passenger thereon between New York City and Hohokus, N. J.

<p>1. Leases — Covenant against Assignment — Beeach—Waives.</p> <p>Where a lessor, with knowledge that her lessees had assigned the lease in violation oí a covenant against such assignment, conducted various correspondence with the assignee, and treated it as her tenant, and made no objection until after the lessees had changed their position to. their prejudice, and deprived themselves of the ability to perform an option of renewal contained in the lease, the lessor was estopped to deny that she had consented to such assignment.</p> <p>2. Same — Demand foe Renewal.</p> <p>Where an assignment of a lease containing a covenant of renewal was valid as against the lessor, a demand for such renewal was properly made by the assignee to whom such covenant to renew passed by the assignment.</p> <p>3. Same — Concueeent Conditions.</p> <p>A lease of asphalt land provided that if, on or before July 1, 1900, the lessees should not have paid royalty on 34,000, tons of asphalt at the rate iixed, they should pay to the lessor on such day royalty equal to the difference between the royalty paid and that payable on that number of tons, and if at that timo the lessees should have performed all the conditions contained in the lease, the lessor covenanted to renew the lease at the lessees’ option. Held, that the conditions for renewal and payment were concurrent, and the lessor, having refused to renew, was not entitled to recover the differential payment provided for.</p> <p>4. Same — Remedies—Election.</p> <p>Where a lease of asphalt land provided for a renewal concurrently on the payment by the lessees of a sum equal to the difference between the royalty paid and that which would be payable on a specified number of tons of asphalt, and the lessor wrongfully refused to make such renewals, tlie lessees or their assignees were at liberty either to tender such differential rent and insist on specific performance of the covenant to renew, or refuse payment, and treat the contract as at an end.</p>

This cause comes here upon writ of error to review a judgment of the United States Circuit Court, Southern District of New York. The-judgment was entered upon a verdict in favor of the defendant below (who is defendant in error), which verdict was directed by the court at the close of plaintiff’s case.

<p>1. Negutgence- — When Question fob .Tuby — -Evidence Consi debed.</p> <p>Defendants were contractors engaged in the construction of locks for the government at the Casen des in the Columbia river, and in the course of the work were doing blasting. A steamer used a landing on the rev-served premises on its daily trips, and remained there for some time. While so lying with some passengers on board, and others passing to and from the boat, defendants tired a blast at a distance of 150 to 200 feet from the landing, and a piece of rock struck and Injured plaintiff, who was in the boat. Plaintiff testified that he heard blasting some time before, but thought it was at a greater distance. Held, that while defendants had a right to continue the prosecution of their work, and passengers on the boat or premises assumed all risks necessarily incident thereto if concluded with skill and reasonable care, whether or not defendants exercised such skill and care, there being evidence tending to show that they gave no notice to the boat passengers that a blast was about to be fired, and whether plaintiff was guilty of contributory negligence, were questions of fact to be determined by the jury under all the evidence. Gilbert, Circuit Judge, dissenting.</p>

<p>1. Federal Courts — Contributory Negligence — Burden of Proof.</p> <p>In the federal courts the burden is on the defendant to prove contributory negligence alleged as a defense by the preponderance of the evidence.</p> <p>2. Innkeepers — Guests—Baggage—Destruction by Fire -Failure to Save —Evidence.</p> <p>In an action by a guest against an innkeeper to recover for baggage destroyed by fire while in the room which the guest was occupying, evidence held to authorize the submission to the jury of the question whether such guest was feuilty of contributory negligence in failing to take measures to save the property before its destruction.</p> <p>3. Appeal — Evidence—Failure to Object.</p> <p>Evidence admitted without objection at the trial cannot be objected to on appeal.</p> <p>4. Innkeepers — Destruction of Baggage — Instructions.</p> <p>In an action against an innkeeper for baggage of a guest destroyed in his room by fire, an instruction that the guest had a right to rely to a large extent on statements made to him by the clerks and employés in the hotel, so far as the statements related to matters under their control, and that he had a right to rely on their statements as to the extent of the fire, not fully as experts, but within the bounds of reason, if under the circumstances he was justified in paying attention to their statements, etc., but that such statements would not exonerate him from the exercise of his intelligence, was not objectionable, as authorizing the guest to rely exclusively on such statements.</p> <p>5. Same — Evidence—Statement of Clerk.</p> <p>In an action for the destruction of a guest’s baggage in a hotel fire, evidence that, on the guest complaining to the clerk that he did not desire a room as high as the fourth floor, the clerk assured him that the hotel was fireproof, was admissible. • ,</p> <p>6. Same.</p> <p>Where, in an action for loss of a guest’s baggage in a hotel fire, the conrt had previously charged that plaintiff was not entitled to rely on statements made by people in the hall of the hotel, who were not officially connected therewith, as to the extent of the fire, an instruction that plaintiff was not justified in relying on any statements made by people in the hall, as they were only expressions of opinion, and not binding on the defendant unless the statements were made by servants of the defendant or persons in charge of the hotel, was not error.</p> <p>7. Appeal — Review—New Tkial — Vacation op Verdict — Motions.</p> <p>The denial of a motion to set aside a verdict and for a new trial in the federal court presents no question which can be reviewed by the Circuit Court of Appeals.</p>

<p>1. Shipping — Servants—Injuries—Negligence—Contributory Negligence —Evidence—Question por Jury.</p> <p>In an action against the owner of a vessel for injuries to a servant of an elevator company, caused by his falling into the hold, as the result of the insufficiency of light, after the vessel’s hatches had been closed, evidence held to authorize the submission of the question of defendant’s negligence and plaintiff’s contributory negligence to the jury.</p> <p>2. Same — Assignments of Error — Exceptions—Necessity.</p> <p>An assignment of error not supported by an exception cannot be reviewed.</p> <p>3. Same — Instructions—Assumption op Facts.</p> <p>Where plaintiff was directed to go into the hold of a vessel, in order to trim grain, which had been loaded therein, and the vessel’s servants, with kndwledge that plaintiff had gone into the hold, and needed the light which came from the open hatches, and after being requested not to close the same, did so, without answering such request, and plaintiff was thereafter precipitated into the hold, by stepping on a misplaced bin cover, while groping his way in the .dark with his shovel in front of him, requested instructions which ignored such evidence, tending to show that defendant had negligently placed plaintiff in a position of peril, and which assumed that what plaintiff did constituted contributory negligence as a matter of law, were properly refused.</p> <p>4. Same — Particular Acts.</p> <p>Where, in an action for injuries to a servant of an elevator company by falling into the hold of a vessel, the court sufficiently stated the rule to be applied by the jury in determining whether or not plaintiff had been guilty of contributory negligence, the court was not bound to give requested instructions directing the jury’s attention to plaintiff’s particular acts bearing on such question.</p> <p>5. Same — Modifications.</p> <p>Where a servant of an elevator company was injured by falling into the hold of a vessel, alleged to have resulted from the negligent shutting off of the light from the hatches by the seamen, a requested instruction that defendant was entitled to close its hatches in the rain, and was not at fault for having no light in the tank or on the orlop deck, and was not bound to furnish electric light for the elevator company’s men, was properly modified by adding that such right to shut off the light was to be considered with reference to defendant’s relation to plaintiff while using the hatch light as bearing on the question of defendant’s negligence.</p> <p>6. Same — Fellow Servant.</p> <p>Where the superintendent of an elevator, who had charge of the loading of a vessel, testified that he had no control over the vessel’s men, and denied that he gave any directions or requested the hatches to be closed, and .only a single witness testified- that the superintendent wanted to cover up the hatches on account of the rain, and that witness ordered it to be done, but did not testify that the superintendent ordered the hatch covered so as to exclude the light, which could have been prevented, it was not error for the court, in an action for injuries to a servant of the elevator company caused by the shutting off of the light by the closing of the hatches, to refuse to charge that, if .the jury believed that the seamen covered the hatch by direction of the elevator superintendent, plaintiff could not recover on the ground tha t, if the act in so doing was negligent, it was the negligence of plaintiff’s fellow servant.</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. This is a petition by Herman It.

This is a case of marine collision. The accident occurred in the Detroit river, near a coal dock, on the Canadian side, at Sandwich, in the afternoon of a line day in April, 1896. The steamer Thompson was bound np the river, having in tow two iron whalebaek barges, known, respectively, as the “J31” and the “104,” both coal laden. The 134 was the first in the tow. The towlines were of the usual length, of about 000 feet each.

In Bankruptcy. The appellee, the wife of Z. N. Estes, a bankrupt, filed her petition in the bankruptcy proceeding for the purpose of enforcing a resulting trust in a certain parcel of land which the trustee in bankruptcy was about to sell as the property of the bankrupt, and also for the purpose of recovering against the bankrupt’s estate the rent received from said land by the bankrupt as trustee for the sole and separate use of his wife, the petitioner.

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

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, in favor of libelant for damages from personal injuries. 124 Fed. 112. The libelant was engaged as a stevedore, working in the employ of the firm of Wilson & Irvine, in discharging a cargo of logs from hatch No. 4 of the steamship G-ladestry. The winch which was used in connection with the work was furnished by the ship and run by one of her •crew.

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, Northern District of New York, dismissing a writ of habeas corpus. The petitioners were Chinese persons seeking to enter the United States. They were stopped by the immigration officers, who, upon examination and inquiry, decided that they were not entitled to enter, and held them for deportation when the writ of habeas corpus was issued. The petition for the writ avers that the petitioners, although Chinese persons, were born in the United States, and are citizens théreof. The returns to the writ showed that such examination had been made, and such decision (unreversed on appeal to the Secretary of Commerce) had been arrived at. The Circuit Court held that “judgment has been passed by those officers competent and duly authorized and having jurisdiction to pronounce it, and this court is without power in this proceeding to annul or reverse it,” and dismissed the writs.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree of the United States District Court for the Southern District of New York in favor of libelant for $351.60 damages and costs, by reason of breakage of certain packages of firecrackers shipped by libelant on respondents’ steamer Flilarius at New York, and delivered at Buenos Ayres.</p>

<p>1. Patents — Suit for Infringement — Dismissal on Appeal from Interlocutory Order.</p> <p>Where the record on appeal from an interlocutory order granting a preliminary injunction restraining the infringement of a patent contains sufficient evidence to enable the Circuit Court of Appeals to determine that the patent is invalid or that for other reasons the bill cannot be maintained, such court may order its dismissal. Such power will only be exercised, however, in plain cases.</p> <p>2. Same — Anticipation—Weeding- Machine.</p> <p>Evidence' of anticipation contained in the record on appeal from an order granting a preliminary injunction against infringement of the Hallock patent, No. 600,782, for a weeding machine, held insufficient to justify the appellate court in dismissing the bill, in view of prior decisions sustaining the validity of the patent, but such as to warrant a reversal of the order appealed from.</p>

<p>1. Patents — Antiotpatton—Sufficiency of Proof.</p> <p>In the specification of a patent in suit, for a gas .burner, tlio patentee stated that it was preferably mads' of lava, but such material was not made an element of the claims. It was shown that when so made the burner was practically efficient, and overcame the objections to prior burners. It was also shown that the burner of an alleged anticipatory patent, somewhat similar in construction, lmt made of brass, was not so efficient, nor practically operative; and complainants admitted that, their burner would not be, if made of brass. Heiil, that in order to establish anticipation, by showing that the difference was in the material used, and not in the manner of construe! ion, which was the thing patented, defendant had the burden of proving that the alleged anticipatory device, if made of lava, would be practically operative and efficient — a different principle of operation being claimed by each of the patentees.</p> <p>2. Same — 'Vapidity of Claims--Amendment of Specification.</p> <p>An inventor may so amend his specification as to include therein all the advantages within (lie scope of his invention, where his amendment is filed before other inventors have entered (he field, whose rights might be prejudiced, and the original drawings and specification sufficiently show and suggest the claims finally made.</p> <p>3. Same.</p> <p>Where the original specification for a patent sufficiently disclosed the nature of the invention claimed, and sufficiently suggested the process involved therein, it is permissible to amend so as to include claims covering the process, as well as the mechanical structure.</p> <p>4. Same — Infringement—1Tip for Acetylene G-as Burners.</p> <p>Tlie Dolan patent, No. 589,342, for a process of burning acetylene gas, which consists in surrounding the jet of gas with an envelope of air in a chamber above the discharge orifice of the burner, for the purpose of preventing its combustion in immediate contact with the burner, and until it passes out of the chamber, as distinguished from the air-mixing process of the prior art, and also for a burner tip adapted to carry out such process, was not anticipated, and is valid. Claims 1, 2, and 3 also held infringed.</p>

<p>1. Removal oe Causes — Single Controversy.</p> <p>An action in a state court, brought by a mortgagee against Ms mortgagors and their creditor, claiming a mortgage lien on the property to obtain a decree foreclosing his mortgage, fixing the amount of the mortgage debt due and unpaid, adjusting the liens upon the property, and adjudging their priority, presents but a single controversy.</p> <p>2. Same — Diverse Citizenship.</p> <p>In such suit or action, when the plaintiff and defendant mortgagors are citizens of the state in which the suit is brought, and the creditor of the mortgagors claiming a mortgage lien on the property is a citizen of another state, such mortgage creditor cannot, by a rearrangement of the parties to the controversy, or otherwise, upon the ground of diverse citizenship of the parties, remove the case into the federal court.</p> <p>3. Same — Prejudice.</p> <p>Neither can such suit be removed into the federal court by the nonresident mortgage creditor of his codefendant mortgagors on the ground of prejudice and local influence.</p> <p>(Syllabus by the Court;)</p>

<p>1. Conspiracy — Quality of Evjdunce — Partnership with Conspirator.</p> <p>Whore, in a trial of a member of a firm for conspiracy to defraud the customs revenue, there was proof that his firm was concerned in such conspiracy, held that it is not mere partnership in the firm, nor relation to some acts, that the law required to be done in the course of passing goods through the custom house, that is demanded to show guilty connection with the conspiracy; it must inevitably appear that such connection was used, or such relation assumed, for the purposes of subserving the conspiracy.</p> <p>2. Revenue — Conspiracy to Defraud — New Trial — Verdict Contrary to Evidence.</p> <p>Where a verdict of guilty was rendered in a trial for conspiracy to defraud the United States of duty on imported merchandise against a member of a firm that was implicated in the conspiracy, held that the verdict was contrary to the evidence, and a new trial should be granted, where it: appeared that the accused had been admitted to the firm within seven months q£ the time of the fraud; that during that timo, and the previous time when he liad been an employé of the firm, he had not been connected with the general management of the business, which was of large volume and international scope, requiring a systematic division of duties; that he had been engaged almost exclusively in selling the merchandise and designing patterns; and that there was no evidence that he had had any relation with a single fact in connection with the purchase of the merchandise or its importation, with the exception that he had signed in blank some of the entries of the merchandise, leaving the particulars of the entries to be filled in by the customs brokers, and no evidence that he had had occasion to examine into the business of the company, or that there had been an accounting during his membership in the firm.</p> <p>3. Criminal Law — New Trial — Co-Conspirators.</p> <p>Where parties have been indicted for conspiracy, tried together, and found guilty, the grant of a new trial to one of the accused does not require that a new trial should be granted to any co-conspirator.</p> <p>4. Same — Liability of Partner for Crime of,Copartner.</p> <p>A partner is not chargeable with criminal acts of his copartners or others, acting in behalf of the firm, unless he has knowledge thereof.</p> <p>6. Customs Duties — Entry—Illegal Declarations — Signing in Blank-Notary Public — False Certification.</p> <p>Under section 5, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 132 [U. S. Comp. St. 1901, p. 1889], providing that on the entry of imported merchandise the importer shall make certain sworn statements in regard to the importation, held, that the practice of having such declarations signed in blank by an importer, to be filled in later by a customs broker, and the practice of notaries public in falsely certifying such declarations as having been made and sworn to in their presence, are illegal, and to be condemned in law as in morals.</p>

Habeas Corpus. Recently there was filed by the relator a petition asking for tlie issuance of the writ of habeas corpus, to the end that his imprisonment might be inquired into, and that on a hearing he might be discharged from custody of the warden. From the petition the following facts appear: October 22, f891, Gregory was convicted on indictment for the crime of larceny by the district court of Greene county, Iowa.

<p>1. BANKRUPTCY — Acts op Bankruptcy — Failure to Discharge Lien.</p> <p>A livery stable keeper’s lien given by statute is not a lien “obtained through, legal proceedings,” which is dissolved by an adjudication in bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 67f, 80 Stat 564 [ü. S. Comp.- St. 1901, p. 3450], nor does the failure of the debtor to discharge such lien at least five days before a sale of the property thereunder, as-provided by the statute, constitute an act of bankrupted under section 8, subd. 3 (30 Stat. 546. [U. S. Comp. St. 1001, p. 3422]).</p> <p>2. Same — Invotututaby Petition — Atj/eging Act of Bankruptcy.</p> <p>An allegation in a creditors’ petition that defendant commuted an act of bankruptcy by removing property wiUi intent to hinder, delay, or defraud his creditors should be made as specific as possible, but greater detail of statement than creditors can probably furnish will not be required. It is not necessary to allege in wliat manner the defendant indicated his intent, which may be inferred from the facts alleged and proved.</p> <p>3. Same — SiiFFicifecY of Petition.</p> <p>A petition in involuntary bankruptcy must set out the business in which the defendant was engaged, or state specifically that he was not engaged in one of the excluded classes by business or occupation.</p>

<p>1. Bankruptcy — Taxes on Mortgaged Property — Rights of Purchaser at F'oreclosure Sale. "</p> <p>A purchaser at foreclosure sale, under a decree of a state court, of real estate of a bankrupt, with knowledge that there were tax liens thereon, and that the trustee in bankruptcy was insisting that the property be sold subject to such liens, or that the taxes be paid from the proceeds, acquires no equity which requires the bankruptcy court to direct the payment of the taxes from the personal estate of the bankrupt.</p> <p>2. Same — Sale of Property for Taxes — Rights of Purchaser.</p> <p>A city filed a claim against the estate of a bankrupt for taxes due on real estate of the bankrupt which had been sold in foreclosure proceedings, and on which, under the state statute, the taxes were a lien. While the claim was pending, the city sold the property for the taxes as provided by statute. Held that, the purchaser 'being a volunteer, the doctrine of equitable subrogation had no application to transfer to him any right of the city to preferential payment of the taxes from the personal estate of the bankrupt, instead of looking to the property on which the taxes were a lien.</p> <p>3. Same — Requiring Payment of Taxes by Trustee — Rights of Mortgagee.</p> <p>Where mortgaged real estate of a bankrupt subject to a paramount lien for taxes is sold in a foreclosure suit for less than the mortgage debt, Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 503 [U. S. Comp. St. 1901, p. 3447], which provides that a trustee shall pay all taxes, does not require the payment of such taxes from the bankrupt’s personal estate, the result of which would be to give a preference to that extent over the general creditors; the municipalities to whom the taxes are due being secured, in any event, by their lien on the property.</p>

<p>1. BANKRUPTCY — 1TRUSTEE’S REPORT — ATTORNEY'S 1⅛8 — DISALLOWANCE—EX-CEPTIONS by Attorney.</p> <p>Where an assignee for the benefit of creditors under the state law was appointed trustee for his assignor in bankruptcy proceedings, and on his accounting the referee disallowed certain payments made by the trustee for attorney’s fees after the assignment and before bankruptcy proceedings were instituted, the attorney to whom such fees had been paid was not entitled to file exceptions to the referee’s rulings.</p> <p>2. Same.</p> <p>Where the whole amount of a bankrupt’s estate, which passed through the hands of the trustee in both his capacities as the bankrupt’s assignee for creditors and as trustee in bankruptcy, exclusive of the bankrupt’s exemption, did not exceed §5.500, and the trustee’s payment to his attorney oí S125 for fees and $21.75 additional for serving notices and mileage, was allowed, it: was proper for the referee to disallow further payments for attorney’s fees.</p>

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

<p>1. Bankbuptcy — Concealment op Assists — Recovbby.</p> <p>Where, shortly before the filing of a voluntary bankruptcy petition, the bankrupt collected, principally in a single month, over $3,000 from current sales, and paid more than such sum, as he alleged, to ancient and distant creditors, in the first half of the same month, and, on being given ample opportunity to corroborate his statement as to such payments by producing such creditors, he obtained the evidence of but one, an order directing him to pay to his trustees the amount so alleged to have been paid to the creditors not produced was proper.</p>

<p>í, Master and Servant — Injubxes to Servant — Safe Place 'to Work — Assumption of Risk.</p> <p>Where a platform on which plaintiff was engaged to work in removing cotton was not dangerous, except as it became so from time to time when cotton was thrown onto the platform from the third floor of the building above, the hazard was a temporary danger of the business, which plaintiff assumed.</p> <p>⅜. Same — Knowledge of Danger.</p> <p>Where, in an action for injuries to the servant by being struck by a cotton .bale thrown from the third floor of a warehouse to the platform on which he was working in accordance with the custom of the business, there was no allegation that plaintiff was ignorant of the method of removing tlie bales from the third story of the warehouse to the platform, but merely an allegation that he was utterly oblivious of the danger and without reason to anticipate danger, the declaration was insufficient.</p> <p>3. Same — -Feulow Servants.</p> <p>Where plaintiff was engaged in removing cotton from a platform, and he was injured by being struck by a bale of cotton thrown onto the platform from tlie third story of the warehouse, an allegation of his complaint that .defendants, without warning, did cause and permit a bale of cotton to be thrown from tlie third story of the warehouse to the platform, should be construed as an allegation that the bale was thrown by a fellow servant.</p> <p>4. Same — Duty to Warn.</p> <p>Where, in an action for injuries to a servant by being struck by a cotton bale thrown from the third story of the warehouse to the platform on which lie was working, it did not appear that the practice of so throwing tlie bales was an unknown i’isk, or that it was other than one of the ordinary risks of rlie business, known to plaintiff, a mere allegation that it was defendant’s duty to warn plaintiff, which had not been done, without an allegation of facts from which it appeared that a duty to give warning existed, was insufficient</p> <p>15. Same.</p> <p>Iii an action for injuries to a servant, an allegation that plaintiff was in the exercise of clue care and diligence, and utterly without knowledge or warning of any danger, and without reason to anticipate tlie same, is not tlie equivalent of an allegation that plaintiff was not familiar with the way in which tlie work was done, and that he did not have knowledge of tlie risks of the business.</p>

<p>In Bankruptcy. On demurrer to petition of Lewis L. Harrower to set aside composition.</p>

<p>In Bankruptcy. , On demurrer to petition of Converse, Stanton & Co. to set aside composition.</p>

<p>In Bankruptcy. On motion to dismiss petition of Lewis E. Har-rower to set aside composition. ®</p>

<p>1. Sams — Manufactured Articles--Breach or Contract — Damages.</p> <p>Where, in an action for breach of contract to purchase granite, it appeared that the granite was to be furnished according to dimensions specified in advance, and was to be of a particular kind from certain quarries, the blocks should be regarded as articles manufactured for the purpose-demanded, so that the damages should be considered with reference to the cost of production, and not to market valúe.</p> <p>2. Same — Value of Material Retained by Seller.</p> <p>Where, in an action for breach of a contract to purchase dimension granite, no allusion was made at the trial to the value of granite left in the quarry that would have been removed if the contract had been performed, a verdict in favor of plaintiff would not be set aside on the ground that the value of such granite should have been deducted from plaintiff’s damages.</p> <p>3. Same — Mortar Joints.</p> <p>Where, in an action for breach of a contract to purchase granite, it appeared that the granite to be furnished would have been in excess of the dressed blocks in place, measured, and equal or exceed the amounts taken up by the mortar joints in the work, a verdict in favor of plaintiff would not be set aside on the ground that such joints were included in the measurement.</p> <p>4. Same — Rubble Backing.</p> <p>In an action for breach of a contract to purchase dimension granite for bridge approaches, evidence reviewed, and held insufficient to authorize an allowance for rubble backing as dimension granite to be furnished under the contract.</p>

<p>Bankruptcy — Sale of Assets — Liens—Jurisdiction—Discretion.</p> <p>A court of bankruptcy has power, in its discretion, to order a sale of the bankrupt’s property free from liens thereon, though not expressly given in the bankrupt act.</p> <p>Same.</p> <p>Where, by a prompt sale of a bankrupt’s assets, interest accruing on liens thereon and taxes will be saved, and the sale could be made by the trustee with less expense than by the sheriff on foreclosure of the liens, which would enable the estate to be settled promptly, without awaiting the outcome of an action by lien creditors to enforce their iiens, and the bankrupt’s wife had quitclaimed her dower in the property to the trustee, such facts were sufficient to move the court to exercise its discretion to order an immediate sale of the assets free from the liens.</p>

<p>1 Towage — Liability fob Injury of Tow — Negligent Steeeing.</p> <p>The master of a barge in tow in a narrow channel, and especially in approaching a bridge with a still narrower draw, is bound, no less than the tug, to exercise vigilance for the safety of his vessel, and the tug cannot be held liable for an injury to the barge which would not have occurred if it had been properly steered.</p> <p>2. Same — Manner of Maxing up Tow.</p> <p>A barge which consents to being towed with another abreast assumes whatever added risk arises from such method of towing.</p>

<p>1. Bankruptcy — Property Conveyed to Bankrupt by Mistake — Resulting Trust.</p> <p>By the will of Her grandmother, a fund was left in trust for the benefit of a bankrupt, the trustee to have full control of it, and to use it for the beneficiary as she might need from time to tiflie. The trustee arranged to invest the fund in a homestead to be conveyed to him, but used by the bankrupt, but by mistake the deed was made to the bankrupt. Bold, that a trust resulted in favor of the trustee, who paid the purchase money, and the property became a part of the estate of the grandmother, and was not subject to the bankrupt’s debts.</p>

<p>In Admiralty. Action to recover damages for personal injury.</p>

<p>1. Aliens — Depobtation—Defenses,</p> <p>Where an alien arrived hy water at the port of New York, and was subject to deportation, as belonging to one of the classes of aliens whose entry is prohibited, it was no defense to his deportation that he had three years before arrived in the United States by water] and had remained for four months, during- which he bought a farm, took out his first naturalization papers, and since his second arrival he had contracted marriage in the United States.</p>

<p>1. Libel — Construction of Libelous Article — Joey Question.</p> <p>A libelous article appeared with headlines as follows: ’‘Murdered Many for Insurance. Agent Here to Probe into a Horrible Conspiracy. Half a Dozen in It. Most Prominent Business Men of S. Incriminated.” Smaller headlines announced the amount of money made by the plotters; that New York insurance companies were selected to be victimized; and that policies were taken on invalids, and when they did not die quickly enough they were poisoned. Below these headlines a< panel was formed by a border of stars, making it specially prominent, in which under the title “The Conspirators” six persons were mentioned, including plaintiff. In another panel were given the number of those who died by disease and by poison, and whose lives were attempted, etc. Subheadings distributed through the article read: “How Suspicion was Aroused;” “Had been Killed by Strychnine;” “L. Sentenced to Death:” “Supreme Court Judge Aids J.:” “Given Poison in Whiskey,” etc. The narrative in small type fairly imported as a whole that plaintiff was a member of the conspiracy and one of the beneficiaries who profited by the frequent mysterious deaths, which had been brought about by poison, though it directly charged him only with fraudulently issuing policies on bad risks. Held, that it was not error to charge as a matter of law that the article imputed to plaintiff the crime of being one of several conspirators who had engaged in obtaining fraudulent insurance upon the lives of decrepit and infirm persons whoso death, when disease failed, had been brought about by poison.</p> <p>2. Same — Plaintiff’s Reputation.</p> <p>In a libel suit it is not error to admit evidence of plaintiff’s general social and business standing.</p> <p>3. Same — Defendant’s Source of Information.</p> <p>Where, in a suit for publishing a libelous newspaper article, plaintiff seeks to recover exemplary damages by showing that the publication was wanton and reckless, and defendant has been permitted fully to show every particle of information relied on by its reporter when he wrote the article, and the documents which the reporter received from'a third person are all admitted, and both he and such third person testify fully as to everything that passed between them, it is not error to exclude evidence of an investigation made by such third person, but of which defendant or its agents were not informed when the article was written and its publication determined on.</p> <p>4. Same — Acts of Go-Oonspieatoe.</p> <p>In a libel suit for publishing an article charging plaintiff with having been a conspirator in a scheme to procure fraudulent life insurance and murder the insured, evidence that two other conspirators had made an attempt to poison one of the insured, and that one of them had been indicted, tried, and convicted for murder, is inadmissible.</p> <p>5. Same — Instructions—Other Offenses.</p> <p>In a suit for publishing a libelous article charging plaintiff with being a conspirator in a scheme to fraudulently issue insurance policies on the lives of decrepit and infirm persons, and, where they did not die quickly enough, to poison them, it is proper to instruct that if the libel charges plaintiff with murder it is neither a defense nor a mitigation of damages to prove that he was guilty of fraud.</p> <p>6. Same — Amount of Recoveby — Review.</p> <p>Where no instructions were objected to, and no exceptions reserved, an objection to the charge oh the subject of exemplary damages cannot be reviewed.. • •</p>

<p>On Petitions for Writs of Habeas" Corpus.</p> <p>In response to writs of habeas corpus issued upon the respective petitions of Edward M. Brodie, James F. Coffey, Andrew C. Hanshew, and John II. Morris, the warden of the United States penitentiary at Fort Leavenworth, Kan., made returns showing that the-petitioners were held in confinement in that penitentiary under approved sentences of military courts-martial. From these returns, upon which no issue of fact has been taken, it appears: Brodie and Coffey, privates in the Third Cavalry, were tried February 1, 1901, before a general court-martial, at San Fernando de la Union, Luzon, P. I., upon a charge of murder, under the fifty-eighth article of war. alleged to have been committed by them jointly in the Philippine Islands, in time of insurrection, and within territory occupied by the armed forces of the United States. Each was found guilty, and sentenced “to be confined at hard labor at such place as the reviewing authority may direct for the term of his natural life.” The finding and sentence were approved February 18, 1901, by the department commander, Maj. Gen. Wheaton, who ordered the court, and the Bilibid prison, Manilla,, P. I., was designated by him as the place of confinement. After being confined for a time in this prison, Brodie and Coffey were transferred, under paragraph 940 of the army regulations of 1895 (paragraph 1047, regulations of 1901), to the Ft. Leavenworth Penitentiary, for the completion of their sentences. I-Ianshew, a musician in the Coast Artillery, was tried December 19, 1901, before a general court-martial at Fort Screven. Ga., upon a charge of attempt to commit rape. He was found guilty, and sentenced “to be confined at hard labor at such place as the reviewing authority may direct for twelve years.” The finding and sentence were approved January (i. 1902, by the department commander, Maj. Gen. Brooke, who ordered the court, and the Ft. Leavenworth penitentiary was designated by him as the place of confinement. Morris, a private in the Ninth Cavalry, was tried September, 24, 1900, before a general court-martial at Ft Grant, Ariz., upon charges of desertion and larceny. He was found guilty, and sentenced “to be confined at hard labor at such post or penitentiary as the reviewing authority may direct for four years.” • The finding and sentence were approved October 10, 1900, by the department commander, Brig. Gen. Merriam, who ordered the court, and the Ft. Leavenworth Penitentiary was designated by him as the place of confinement.</p>

This was an action by Jones against the Union Selling Company to recover damages for the breach .of an express warranty of the quality of twine sold to him by the company under a written contract entered into at Hastings, Neb., June 6, 1900, which described the twine and stated the warranty in this manner: “80,000 pounds of Binder Twine, Crown Brand, as follows: 27,000 pounds Standard, eleveri cents per pound: 3,000 pounds Sisal, eleven cents per pound.

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

"This is an appeal by the claimant, Thomas Quigley, from a final decree, entered February 14, 1903, in favor of the libelant, John O'Con-nor, for $1,834.55 on account of damages sustained by his canal boat, E. Remington & Sons, because of alleged negligence of the tug Levy while towing the canal-boat through the ice in the upper Hudson river in December, 1900. The facts are accurately stated in the decision of the court below.

This is an appeal by the Clyde Steamship Company, as claimant and owner of the steamship Oneida, from the final decree of the District Court of the Southern District of New York, in favor of the libelant, entered February 17, 1903, for the sum of 840,112.82: The libelant, J. Raymond Smith, is assignee of the owners and underwriters of the cargo of the Oneida which was damaged by reason of the sinking of the ship at Pier 29, East river, New York, on September 21, 1897.

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

These are appeals from decisions of the District Judge of the Northern District of New York, affirming orders of United States commissioners adjudging that the appellants are Chinese laborers unlawfully within the United States and ordering their deportation to the Empire of China. . The- appeals were argued together. ' ■

Certain creditors of ’the Lansing Boiler & Engine Works, a Michigan'1 corporation engaged in manufacturing and mercantile pursuits at Lansing, in that state, filed their ’petition in the District Court about May 1, 1903, praying that, for causes set forth in the petition, the said corporation should be adjudged bankrupt.

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

: Southern Appeal from the Circuit Court of the United States for the District of Mississippi. e Thomas ■ The following are the drawings and specifications of th delinter, which are referred to in the opinion: “To All Whom it may Concern: “Be it known that I, Abner D. Thomas, of little Rock, Arkansas,'have made a new and useful improvement in methods of and apparatus for delinting cotton seed, of which the following is a full, clear, and exact description. “In carrying out…

<p>1. Patents — Infringement—Dyeing Apparatus.</p> <p>The Weldon patent, No. 354,281, for a dyeing apparatus, .though not for a pioneer invention, was not anticipated, and shows patentable invention. Claims 1, 2, 3, and 4 also held infringed.</p>

This is an appeal from a decree adjudging appellants to be infringers of claims 1 and 4 of letters patent No. 418,678, January 7, 1890, to Blades, assignor, for an electric switch for motors.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>The bill alleges that complainant is a New Jersey corporation, and defendants are citizens of Iowa; that complainant is the exclusive licensee for the sale of Edison phonographs, record blanks, and records, covered by letters patent owned by the Edison Phonograph Company; that, in conformity with its established plan of selling the articles covered by its license and such letters patent, complainant, on April 27, 1901, entered into a contract in writing, called “Jobber’s Agreement.” with defendants, whereby, in consideration of sales of said articles to be made by • complainant to defendants from time to time at a stated discount, defendants agreed to conform and strictly adhere to and be bound by certain terms and conditions in selling suqh articles, viz.: (1) To sell only at certain named prices. (2) To sell to no retail dealer who does not sign a prescribed and similar agreement governing and controlling sales by retail dealers. (3) “All Edison Phonographs, Records and Blanks are covered by United States patents and are sold under the condition that the license to use and vend them implied from such sale is dependent on. the observance by the vendee of all the foregoing conditions; upon the breach of any of said conditions the license to use or vend said phonographs, records and blanks, immediately ceases and any vendor or user thereafter becomes an infringer of said patents and may be proceeded against by suit for injunction or damages, or both.” The bill also alleges that, under such agreement, complainant sold and delivered to defendants, from time to time, great numbers of Edison phonographs, record blanks, and records, and defendants now have on hand many phonographs, record blanks, and records so purchased; that defendants recognized and conformed to the terms and conditions of said agreement until about March 1, 1902, since which time they have been selling and are continuing to sell large numbers of the phonographs, record blanks, and records so purchased from complainant at prices less than those agreed upon, and to retail dealers throughout the United States who have not signed and who refuse to sign the agreement prescribed for retail dealers. Other allegations relate to the effect of these sales in violation of the agreement, and tend to show pretty clearly that they seriously disturb the business of complainant,' and do it irreparable injury. Among its prayers, the bill asks for preliminary and permanent injunctions restraining defendants from selling phonographs, record blanks, or records so purchased from complainant at prices less than those agreed upon, or to any retail dealer who does not sign the required retailer’s agreement. After the filing of the bill and the service of process, defendants consented, in writing, to a permanent injunction as prayed, on condition that no damages or costs should be awarded against them, ahd complainant moved that such a decree he entered upon the hill and the written consent of defendants. The court, however, entered a decree dismissing the bill. The theory upon which this was done is shown by'the following extracts from an opinion filed by the judge at the time: “On the former hearing I reached the conclusion that this- is a collusive suit. In this I was mistaken, and I now ground my decision upon the facts pleaded in the bill. * * * Is not the contract one that stifles trade? And if it is such a contract, should this court enforce it by the great writ of injunction? * * * And, aside from the phases of the patent law that have been argued, in my judgment the contract in suit cannot be the basis of an action at either law or in equity. And it likewise is my judgment that the contract cannot he upheld, even though the articles of merchandise are covered by patents.”</p>

<p>1. Patents — Infringement—Coal Trucks,</p> <p>The Shadbolt patent, No. 532,216, for an improvement in coal trucks or heavy wagons, consisting in making the box deeper at the back end, .with the bottom sloping toward the back, to facilitate unloading, but wider in front, to equalize the weight of the load, over the two axles, is- not infringed by a wagon in which the top of the box is a parallelogram, but the sides converge toward the bottom uniformly, so that the deeper portion at the back is narrower at the bottom than the front.</p>

<p>1. Equity Pleading — Effect of Setting Down Pleas for Argument.</p> <p>By setting down pleas for argument, a complainant admits the facts, but not the conclusions, pleaded therein.</p> <p>2. Patents — Suit for Infringement — Equity Jurisdiction.</p> <p>Pleas to a bill in equity for infringement of a patent which in effect admit infringement up to a date a short time prior to the filing of the bill, but allege that on that date defendant ceased manufacturing the infringing article, except to make up material on hand, and that prior to the filing of the bill it wholjy abandoned such manufacture and sale, and has since neither made, used, nor sold the invention of the patent, but has made deliveries on contracts of sale previously made only, do not state facts constituting a bar to the suit, since, admitting such facts, the court may in its discretion grant an injunction to restrain a resumption of the infringement or the continued sale of the infringing articles, and require an accounting.</p>

In Equity. Suit for infringement of letters patent Nos. 263,075, 263,076, 280,095, 297,471, 302,055, and 393,866 — all for machines for felting hat goods — granted to James S. Taylor, respectively, on August 22, 1882, August 22, 1882, June 26, 1883, April 22, 1884, July 15, 1884, and December 4, 1888. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 669,152, for a collar foundation, granted to Edward K. Warren March 5, 1901. .On final hearing.</p>

<p>1. Patents — Infrincjement—Contempt—Advice on Attorneys.</p> <p>On an application to punish defendant for contempt in selling a meter alleged to constitute an infringement of complainant’s meter, in violation of an injunction, the fact that such sale was made under the advice of counsel that it did not infringe complainant’s patent, while insufficient to protect defendant if it was in fact an infringement, would be considered in determining whether there was an intentional disregard of the injunction, tending to bring defendant into contempt.</p> <p>2. Same.</p> <p>Where, on an application to punish defendant for contempt in violating an injunction restraining the sale of meters infringing complainants’ patent, it appeared that but u single sale had been made by defendant since the injunction, and that was of a meter differing in form, if not in principle, from 1he one established by the decree as an infringement, and that complainant’s object was to obtain an adjudication that the meter so sold was in fact an infringement, and such question could be fully litigated on the taking of the account, the motion to punish for contempt would be denied.</p>

<p>Motion to Attach for Contempt.</p>

In Equity. Suit for infringement of letters patent Nos. 511,559 and 511,560, relating to electric motors, granted to Nikola Tesla, December 26, 1893. On motion for preliminary injunction.

<p>In Equity. Petition for subpoena duces tecum.</p>

<p>1. Federal Co nirrs — Marshals -Bailiffs — Pay.</p> <p>Bev. St. § 715 [U. S. Comp. St. 1901, p. 5791, authorizes the appointment of bailiffs for tiie Circuit and District Courts, not exceeding five for each court; and Sundry Civil Appropriation Act March 2, 1895, c. 189. 28 Stilt. 958 LÜ. S. Comp. St. 1901, p. 2500], provided for the pay of bailiffs and criers, not exceeding three bailiffs and one crier “in each court.” Hold, that the words “in each court,” in the appropriation act, referred to the Circuit and District Courts mentioned in section 715, and not to occasions when the business of such courts is transacted by one judge holding both courts at the same time and place, and hence the marshal was entitled to allowance for per diem compensation paid to additional bailiffs in excess of three, hut not exceeding six, in attendance on the Circuit and District Courts on days when such courts were held by a single judge at the same time.</p> <p>2. Sauk — Day as Deputy Marshals.</p> <p>Bailiff's are not entitled to pay for attendance on the court for the same days on which they also attended court as deputy marshals, and thereby earned a fee of 85 each for the marshal, under Bey. St. § 1765 LU. S. Comp. St. 1901, p. 1207], providing that no officer in any branch of the public service shall receive any additional pay, in any form whatever, and for any other s(;rvice or duty whatsoever, unless authorized by law; the main duties of bailiffs and deputy marshals being the same.</p> <p>3. Same.</p> <p>Tiie restriction of three bailiffs to each court in the sundry civil appropriation hill relates only to the payment of bailiffs frqm tiie amounts appropriated for that purpose during the several years in which tiie restriction was inserted, and did not repeal Bev. St. § 715 [U. S. Comp. St. 1901. p. 579], authorizing five bailiffs for each court; and where, by order of the court, four bailiffs were employed in charge of the jury oil two successive Sundays during tiie trial of a case, the marshal was entitled to an allowance for all four.</p> <p>4. Same— Serving Subpcenas — Expenses.</p> <p>Where bailiffs were appointed to attend on the juries and “for other necessary purposes,” as authorized by Bev. St. § 715, and, it appearing that all deputy marshals were otherwise employed, and certain witnesses were required in court, the marshal authorized the bailiffs to serve the subpoenas, which, under tiie state laws, any disinterested person might do, the marshal was entitled to the allowance of the expenses of such bailiffs in serving the subpoenas, under Bev. St § 830, authorizing payment of the marshal’s expenses for “contingencies that may accrue in holding the courts.”</p> <p>5. Same — Expenses in Civil Cases.</p> <p>Where a marshal paid expenses incurred in civil cases out of the appropriations for marshal’s fees and expenses, and thereafter the marshal collected tiie amount from the parties to tiie suits, and paid -the same to tiie clerks of the courts, who thereupon paid it into the United States Treasury, and, the payments from tiie appropriation being disallowed, tiie marshal was again compelled to pay tiie same into the Treasury of the United States to the credit’ of the appropriation, he was entitled to recover the amount so paid from the United States.</p> <p>C. Same — Officers in Charge of Prisoners and Witnesses — Meals.</p> <p>Tiie expenses paid by a marshal for meals of officers in charge of prisoners and witnesses in custody are allowable under Bev. St. § .830 [U. S. Comp. St. 1901. p. 039], authorizing the payment by the marshal of expenses for “other contingencies which may arise in the courts,”.</p> <p>7. Same — Trial op Offenders — Stenographers—Employment—Authority of Attorney General. •</p> <p>A United States attorney on the eve of the trial of an offender requested authority from the Attorney General to employ a stenographer to take the testimony for $10 per diem if the report was not transcribed, and, if transcribed, 25 cents per folio of 100 words, with no per diem, and, if part transcribed, proportion of per diem deducted. The Attorney General authorized employment at $10 per diem, or- 25 cents per folio if testimony was transcribed. The stenographers rendered a hill for nine per diems, which was paid by the marshal, and thereafter, on request, the stenographers furnished the United States attorney a transcript of the testimony for one whole day and two half days, and rendered a bill therefor containing a credit of $20 for the per diem compensation for the time of taking the testimony which was so transcribed, which was allowed. Held, that a disallowance of $70 for the per diems spent in taking the evidence not transcribed, on the ground that the Attorney General required the United States attorney to have and iiay for transcribing the evidence on the entire trial in case he required a transcript of any of the testimony, was erroneous.</p>

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

<p>1. Waters — Appropriation tor Irrigation — Nature op Right.</p> <p>One who diverts water from a flowing stream for a beneficial purpose may have the use .of it so long as he conforms to the law -regulating such matters, but he has no contract with or grant from the government, federal or state; in respect to his privilege.</p> <p>2. Same — Federal Statute.</p> <p>Rev. St. U. S. § 2339 [U. S. Comp. St. 1901, p. 1437], providing that whenever, by priority of possession, rights to the use of water for mining, agricultural, or other purposes have accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same,' does not create rights, but is a recognition by Congress of a. pre-existing right of possession, constituting a valid claim to its continuance.</p> <p>3. Same — Jurisdiction op Federal Courts — Impairment op 'Contract.</p> <p>Two canal companies in Colorado constructed irrigation ditches appropriating water from the Arkansas river. The second to commence the work first recorded its plat, in compliance with Act Colo. Feb. 11, 1881, which, under said act, gave it priority of right; but in subsequent litigation between the parties the Supreme Court of the state held such act and the amendment thereto of April 20, 1887, unconstitutional and void, because not legally enacted. Held, that the compliance with said act by the second company, while it was recognized as the law of the state, did not give such company any contract rights with the state, Or under the laws of the United States, which entitled it or the owner of a water right thereunder to invoke the jurisdiction of a federal court on the ground that it had a vested contract right to priority in the use of the water of the river, which was impaired by the state decision; nor do such facts authorize the federal court to review or reverse such decision, which, as a construction of the Constitution of the state, is conclusive.</p>

<p>1. Shipping — Discharge—Injuries to Servant — Defective Appliances— Assumption of Risk.</p> <p>Where a wire cable used in discharging a ship was carefully examined before the work was begun, and no defect was discovered, and the only sign of danger, consisting of strands' or ends of wire sticking out from the splice, was observed solely by libelant and other workmen after the work of discharging the vessel had been in progress for 30 hours, but was not communicated or brought to the knowledge of any officer of the ship, and no request was made to have the defect remedied, libelant assumed the risk thereof.</p> <p>2. Same — Negligence—Inspection.</p> <p>A ship had received a new cable, of foreign manufacture, from a sister ship. It had been used but once before, when it was inspected by the ship’s officer before being, used in discharging the. cargo in question. The cable was bound around an iron thimble or eye, and the end, after surrounding the eye, was woven into the body of the rope, and the splice covered with tarred spun yarn. The cable had a capacity of 10 tons, and was used in lifting buckets of ore weighing between 1,800 and 2,000 pounds. Work was begun with the cable, which lifted the buckets safely for 30 hours after its first inspection, and no sign of weakness appeai-o.d until two or three hours before the splice pulled out by reason of which plaintiff was injured. Held, that the ship was not negligent in its inspection of the cable, in failing to take off the yarn and examine the splice.</p> <p>3. 'Same — “Res Ipsa Loquitur.”</p> <p>Where a laborer engaged in discharging a ship was injured by the pulling out of a cable splice, the happening of the accident was not sufficient -to raise a presumption of negligence, under the maxim of “Res ipsa loquitur.”</p>

<p>4. Shipping — Injury of Stevedore — Liability-of Ship.</p> <p>Where a ship in port had been for some days in the hands of contracting stevedores, who had discharged her, and were also to reload her, the vessel is not liable for the death of a stevedore, who came on board, with others, to assist in loading, and fell through a hatchway, the cover to which had been replaced by the discharging stevedores, and, so far as appeared, was in the condition they left it, and where the evidence did not establish any defect in any part of the hatch covering, but that the negligence, if any, was in the manner in which it had been replaced by the discharging stevedores.</p> <p>2. Wrongful Death — Action for Damages — Contributory Negligence.</p> <p>Deceased, a stevedore, was engaged, with others, in removing a hatch cover on a ship preparatory to loading cargo. There was an athwartship beam across the center of the hatchway, having cleats on the sides, on which rested the ends of fore-and-afters, upon which were placed the sectional covers. The covers had been removed from one-half the hatchway, and deceased was directing the removal of the center fore-and-after on that side by means of a fall and tackle operated by a winch. When the winch began to hoist, the outer end of the piece was raised first, causing it to bind, and deceased, who was standing on the covers of the other section, signaled the winehman to apply more power; the result being that the fore-and-after came out with a jump, causing the' athwartship beam to spring outward sufficiently to permit the other half of the cover, on which deceased stood, to fall into the hold, whereby he was killed. Held, that he was clearly guilty of negligence in standing where he was, without necessity, while the extra power was applied, which precluded a recovery for his death under the Pennsylvania statute; the settled law of the state being that contributory negligence defeats a recovery thereunder.</p>

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

<p>1. Criminal Law — Federal I'btbostkbs— Sentence — Place oe ExeoutioN.</p> <p>Under Rev. St. U. S. § |U. S. Comp. St. 1901, p. 3721], providing that, in ('very case where any person convicted of an offense against the United States is sentenced to imprisonment for a longer period than a year, the court by which the sentence is passed may order the same to be expended in any state jail or penitentiary within the district in which the court is held, the use of which is allowed by the State Legislature for that purpose, the Circuit Court of the United States sitting in New York, in which relator was convicted 011 two different occasions and sen-fenced to terms exceeding one year, was authorized to direct that his earlier sentence should be executed at the Erie County Penitentiary, and his later sentence at Sing Sing Prison.</p> <p>2. Same — Credits fob Good Behavior — Statutes.</p> <p>Since Laws N. X. 1886, p. 28, c. 21, provides a full scheme for giving credits, to prisoners confined in its state prisons, for good behavior, and is therefore made applicable to federal prisoners confined therein by B.ev. St U. S. § 5544 [Ü. S. Comp. St. 1901, p. 3721], Act Cong. June 21, 1902, e. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1903, p. 448], providing a scheme of credits for federal prisoners, does not apply to such prisoners confined in the state prisons of New Xork who were sentenced before its enactment.</p> <p>3. Same — Good Time — Forfeiture.</p> <p>Where, at the time of relator’s sentence for a federal offense, to be served in a New Xork penitentiary, he was subject to Laws N. X. 1886. p. 28, c. 21, providing a scheme of credits for good behavior for all prisoners so confined, and he was discharged a year and ten months before the expiration of his sentence by reason of credits earned under such act, sueh discharge was conditional on his nonconviction of a felony before the entire period of his sentence had expired, as provided by section 14 thereof; and on his being so convicted, and again sentenced to imprisonment in a New Xork prison, the authorities in charge thereof were authorized to detain him for a period equal to the amount of good time so previously earned, in addition to his subsequent sentence.</p>

<p>1. ADMIRALTY JURISDICTION — MARITIME TORTS — PLACE OP INJURY.</p> <p>The city of New York was engaged in filling up Riker’s Island in East River, embankments and cribwork haying been constructed around the outside, leaving a gap through which the tide ebbed and flowed, and through which tugs and scows passed into the interior, carrying material for filling. A scow, having been so towed in, was left until the tide ebbed, when she settled on a projection in the bottom and was injured. Held, that the injury occurred in navigable water, and that an action to recover damages therefor was within the jurisdiction of a court of admiralty.</p> <p>2. Same-^Breach op Maritime Contract.</p> <p>A suit to recover for an injury to a scow from a charterer, whose .duty it was to exercise ordinary care to return her to the owner in good condition, arises out of a maritime contract, and is within the admiralty jurisdiction, irrespective of the place of the iujury.</p> <p>3. Shipping — Liability op Charterer por Injury op Scow — Negligence.</p> <p>Libelant hired a scow to the city to be employed in carrying material for filling in a submerged island. After being towed by a tug to the place where it was desired to unload her, the tide receding, she settled on a projection on the bottom and was injured. Said, that the injury was due to negligence chargeable to the charterer, which directed the movement of the scow and selected the place where she was to lie for unloading, and not to the libelant, who, although knowing the general character of the work in which she was to be used, had no knowledge of the condition of the bottom, and no control over her movements.</p>

<p>1. Injunction — Grounds—Interference with Contract.</p> <p>Complainant company issued trading stamps, which it sold to merchants under a contract that they should be given out to customers as a special discount for cash, one stamp for each 10 cents worth of goods purchased. The contract provided that the stamps when so issued would be redeemed by complainant in goods when presented in boots containing 990 stamps each, that they should only be given out in the manner prescribed, and that the property in and title to the stamps should remain in complainant. It also issued advertising books to the public, which did not give the terms of the contracts with merchants, or state the requirement that the stamps must be presented in books, but represented that each stamp was- redeemable, nor did the stamps show such condition on their face. Held,, that the title to the stamps while they remained in the hands of the merchant was a limited one, and he acquired no right to dispose of them otherwise than according to the contract, and that complainant was entitled to an injunction to restrain a defendant from unlawfully interfering with its contracts by inducing merchants to sell the stamps in violation thereof, and by selling the stamps so purchased to other merchants having no contracts with complainant, defendant having full knowledge of the terms of such contracts.</p> <p>2. Same — Fraudulent Interference with Complainant’s Business.</p> <p>Defendants, having obtained quantities of such stamps, in part by purchase from merchants, and in part from customers of such merchants to whom they had been regularly issued, gave them out to their own customers in such quantities as they chose. They also advertised that they had special arrangements with complainant by which they were authorized to give double the usual number of stamps with purchases from their store, and offered to redeem any of complainant’s stamps either in goods or in cash, whereas in fact they had no contract with complainant. Held, that such manner of advertising was a fraud upon complainant, and entitled it to an injunction restraining the same, as well as the use of the stamps by defendants, in so far as they were acquired by purchase from merchants in violation of their contracts; and that as there was no way ,of distinguishing between the stamps so acquired, and those obtained from customers of merchants having contracts with complainant who issued them in accordance with the contract, the injunction would be extended to all.</p>

<p>At Law. On motion to require answer to be made more specific.</p>

On petition by Edward H. Harriman and Winslow S. Pierce, as trustees, and the Oregon Short Pine Railroad, Company, for leave to intervene after decree. The Continental Securities Company was permitted to intervene for the purpose of objecting to the petition.

<p>In Admiralty. Suit to recover salvage.</p>

<p>1. Intebnal Revenue — Degaoy Tax — Consanguinity.</p> <p>A legacy to a son-in-law of tlie testator is subject to tax under the fifth clause of section 20 of the war revenue act of June 13, 1898, c. -148, 30 Slat. 464 [U. 8. Comp. St. 1901, p. 2308], as one to a stranger in blood.</p>

<p>hi Admiralty. Suit for collision. On exceptions to report of commissioner.</p>

<p>In Admiralty. Suit for collision. On motion to divide costs.</p>

<p>1. County Refunding Bonds — Constitutionality of Statute — Creating New Indebtedness.</p> <p>Act N. C. Feb. 2,1898 (Pub. Acts 1893, p. 69, c. 70), authorized Henderson county to issue bonds to refund a former issue made in 1874 in aid of a railroad, and provided that such bonds should be deemed a continuation of the liability created by the former issue, and should not “be taken, construed, deemed nor held as the creation of a new debt nor liability.” Held that, under the law of the state as determined by its Supreme Court prior to its passage, such act did not provide for the creation of an indebtedness, assuming the original bonds to have been valid, and did not. therefore, come within article 2, § 14, of the state Constitution, requiring bills for acts creating or authorizing a state, county, or municipal indebtedness to be read three several times in each house on different days, and the yeas and nays on the second and third readings to be entered on the journals.</p> <p>2. Counties — Authoeity to Subscribe to Railroad Stock.</p> <p>The fact that, after the passage of an act authorizing counties through which a railroad was projected to subscribe to the stock of the company, such company was consolidated with another, as permitted by the laws of the state, and the name was changed, did not deprive a county of the power to thereafter make a valid subscription to the stock of the company under the new name, nor invalidate bonds issued in payment of such subscription.</p> <p>3. Constitutional Law — Provisions Operating Prospectively only — Manner of Passing .Statutes.</p> <p>Article 2, § 14, of the Constitution of North Carolina adopted in 1808, requiring acts creating or authorizing state, county, or municipal debts to be passed in a specified manner by the Legislature, did not supersede prior legislation nor affect the validity of acts previously passed, nor did it render invalid county bonds issued thereafter under authority given by an act previously passed without such specified formalities.</p> <p>4. Federal Courts — Following State Decisions — Vested Contract Rights.</p> <p>County bonds, which were authorized and valid when issued under the law of the state as declared by its Supreme Court in previous decisions, will not be declared invalid in the hands of bona fide holders by a federal court because the state court has since reversed its former rulings.</p> <p>5. Municipal Bonds — Validity—Estoppel by Recitals.</p> <p>“Where there was statutory authority for a county to issue negotiable bonds, and it has issued such bonds, which have passed into the hands of bona fide purchasers for value, the county is estopped by recitals therein that they were issued in all respects in conformity to the statutes authorizing the same.</p> <p>6. Statutes — Validity of Enactment — Recitals of Legislative Journals.</p> <p>Where the recitals in legislative journals relating the passage of a bill show that such bill was introduced and referred to a committee, and that It subsequently passed its second and third readings by a recorded vote, and the act was ratified by the presiding officers, who certified that-it had passed three readings, it sufficiently appears that it had a first reading.</p>

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

<p>1. Partition — Nature oj? Action — 1Title to Support.</p> <p>Where a proceeding for partition is one at law, in which questions of title may be tried, as it appears to he under the law of Texas, on the trial of such an action in a federal court the legal title must prevail.</p> <p>2. Vendor and Purchaser — Unrecorded Instrument — Bona Fide Purchaser.</p> <p>Certain tracts of land in Texas were conveyed to two individuals, who were at the timo partners. In 1853'an act of sale was executed by one partner to the other, in New Orleans, covering all his interest in the partnership property, “consisting of the stock in trade * * ⅜ real estate taken by the said firms from their debtors in settlement of their debts and situate in the states of Mississippi and Texas. * * * *” Such instrument was not sufficient as a conveyance of lands under the laws of Texas, nor was it recorded in that state. In 1901 the sole heir of the partner executing such instrument, through an attorney in fact, sold and conveyed’ an undivided half interest in the' Texas lands, for a valuable consideration, to plaintiff’s grantor; neither such pnrchaser nor plaintiff having any knowledge of any adverse title or claim. Rev. St. Tex. art. 4640, provides that an unrecorded conveyance shall he void as against a purchaser for value without notice. Held, that plaintiff acquired the legal title to the land, as well as the superior equity.</p> <p>3. Same — Action to Try Title — Evidence.</p> <p>In an action at law to determine the title to the land, the act of sale was not admissible as an evidence of title, since, at most, it conveyed merely an equitable right, and where there was, moreover, no satisfactory proof that the lands in question were ever the property of the partnerships or that they were obtained from debtors.</p> <p>4. Deed — Construction—Conveyance to Partners.</p> <p>A deed of lands to two persons as individuals on its face conveys to each an undivided half interest, and no presumption arises that the lands are partnership property, even where it is shown that the grantees were partners in a mercantile business.</p> <p>5. Vendor and Purchaser — Title Acquired — Bona Fide Purchaser.</p> <p>Where plaintiff in an action at law to determine the title to lands pleads a legal title, and proves conveyances which on their face vest the title in him,- and defendants set up a claim under a prior unrecorded conveyance from a common source of title, which, under the laws of the state, is void as against subsequent bona fide purchasers for value, without notice, evidence is admissible in rebuttal to show that plaintiff was such a purchaser; such evidence not tending to establish an equitable title, but being in support of plaintiff’s legal title.</p>

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

This action was brought by James M. Russell and Minnie A. Russell, his wife, who are the appellee's in this court, against Tilomas O. Treat, the appellant, to cancel and annul a deed conveying a two-thirds interest in a tract of land - situated in Matte county, Mo., containing altogether about 340 acres.

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

<p>2. Admiralty — Proving Law ok Foreign Country.</p> <p>Where the maritime law of a foreign country, which is different from our own, is relied upon to defeat an action, it must be both alleged and proved.</p> <p>2. Seaman — Injury in Service — Liability oe Ship eor Neglect to Furnish Care and Treatment.</p> <p>Under the maritime law of the United States a suit may be maintained by a seaman against the ship to recover damages for the neglect of the master to furnish him proper care and medical attendance after he was injured by being assaulted by the master.</p>

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, against the plaintiffs in error, who were defendants below. The judgment was entered upon the verdict of a jury, which was directed by the court. The action was brought to recover upon a contract in writing whereby the plaintiff agreed to manufacture certain cotton yarn, and to deliver the same in weekly installments for the sum of 27 cents per pound.

<p>1. False Imprisonment — Sueeiciencx op Warrant to Protect Oppicer— • Question eor Court.</p> <p>Whether a'warrant of arrest sufficiently describes the person arrested thereon to afford protection to the officer mating the arrest against an action for false imprisonment is a question for the court, where the facts are undisputed.</p> <p>2. Same — Description op Person.</p> <p>A person’s middle name is not recognized in law, and the omission of the initial letter of such name in a warrant of arrest, or a mistake therein, is immaterial.</p> <p>S. Same — 'Using Initial op First Name.</p> <p>It is sufficient to describe a person in a warrant by giving the initial letter of his first name instead of writing such name in full, especially where he ordinarily uses and is known by the initial.</p> <p>4.' Same.</p> <p>A warrant commanding the arrest of J. I. Cox, and reciting the filing of a complaint charging said Cox, “late of the county of Boulder and state of Colorado,” with having committed a crime in such county, and being a fugitive from justice, protects the officer in the arrest thereon of James T. Cox, commonly known as J. T. Cox, where he was the person in fact intended, although he was not late of said county nor a fugitive from justice, the description being sufficient, and those being matters to be determined on his trial, and not by the officer.</p>

This case comes up on appeal from the District Court of the United States for the Northern District of West Virginia, sitting in bankruptcy. The Oil Well Supply Company and the Jarecki Manufacturing Company, corporations of Pennsylvania, with the National Supply Company, a corporation of West Virginia, filed in the District Court their petition in bankruptcy against James F. Hall and.

<p>1. Federal Courts — Appear—Filing Transcript — Time—Motion to Dismiss.</p> <p>Where a transcript o£ the record is filed in the Circuit Court of Appeals after (he time pr escribed by the rules has expired, but be lore a motion is made to dismiss the appeal on that ground, such motion will not be granted.</p> <p>2. Revenue Daws — Intoxicating Liquors--Fraudulent Concealment — Vessels — -Condemnation-—Trial—Acts of Judge.</p> <p>Where, in a proceeding to condemn a vessel for violating the United States revenue laws, in removing and concealing certain intoxicating liquors with intent to escape payment of revenue taxation, at the conclusion of the evidence the question of the identity of the liquor was in doubt, it was proper for the court, on its own motion, to recall an internal revenue collector who had testified, and question him further on such issue.</p> <p>3. Same — Intoxicating Liquors — Common Knowledge.</p> <p>Where, in a proceeding for the forfeiture of a vessel for violating internal revenue laws, in transporting and secreting certain okolilioa, there was no controversy that the liquor transported and secreted ivas the product of the ti root, grown in Hawaii, which the Supreme Court of such republic had previously held was a “well-known spirituous liquor, of great strength, and very intoxicating,” it was not necessary that proof of the intoxicating qualities of such liquor should be introduced.</p> <p>4. Same — Manufacture-Time.</p> <p>. In a proceeding for the forfeiture of a vessel for violating the internal revenue laws, in transporting and concealing intoxicating liquors, evidence held to justify a finding that the liquor concealed was manufactured in Hawaii subsequent to the taking effect in that territory of the revenue laws of the United States.</p>

<p>1. Liens — CLAiif against Railroad Company — Priority or Mortgage.</p> <p>An order, given by a railroad company, directing its treasurer to pay the holder a sum “out of the proceeds of the sale of the first bonds sold of this company,” does not create a lien on the property of the company, afterwards sold and transferred before the issuance of any bonds to a second company, which assumed payment of the debt, so as to take precedence of a mortgage executed by the purchasing company to secure an issue of bonds,'but the claim of the holder is subordinate to the lien of such mortgage.</p>

<p>1. Insurance — Arbitration—Right to Sub.</p> <p>Where a fire insurance policy provided that in the event of a disagreement as to the amount of the loss the loss should be ascertained by appraisers, and after loss an agreement was made, in which the only thing submitted to arbitration was the extent of the damage, the insurer’s liability being expressly reserved, such arbitration agreement was no bar to-insured’s right of action on the policy.</p> <p>2. Same — Collateral Agreement.</p> <p>Where a fire policy provided for arbitration only in the event of a disagreement as to the amount of the loss, and after loss, but before there had been any attempt to agree on the amount thereof, it was agreed to-submit the amount of the loss to arbitration, such agreement was a substantial departure from and independent of the policy, and avoided the effect of the policy provision.</p> <p>3. Same — Attempt to Arbitrate — Termination—Estoppel.</p> <p>Where, after loss under a policy, and before any disagreement as to the amount thereof, the parties agreed to submit the loss to arbitration, and two arbitrators were appointed, but the arbitration failed by reason of the withdrawal of insured’s arbitrator because of the failure of the arbitrator appointed by insurer to act with reasonable dispatch, and insurer failed to object to such withdrawal, it was estopped from thereafter insisting that insured was barred by such abortive arbitration from suing on the policy.</p> <p>4. Same — TTmx’ibe—Deuegation oe Auttiokity.</p> <p>Where an umpire was appointed to determine disagreements between arbitrators appointed to determine an insurance loss, such appointment was a personal trust, and it was therefore improper for him to base his conclusions on facts reported to him by one of his employes.</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 writ of error to review a final judgment of the Circuit Court, Southern District of New York, dismissing plaintiff’s amended complaint on the merits, upon demurrer thereto for insufficiency of facts. The action is at law upon a federal statutory supersedeas bond in the penal sum of, $30,000, given by defendant and three other co-sureties upon a writ of error to the Supreme Court of the United States to review a final judgment entered in the circuit court of Outagamie county, Wis., in a suit in which the Green Bay &. Mississippi Canal Company was plaintiff and the Kaukauna Water Power Company was defendant. In the Wisconsin suit it was contended that a certain pond, from which the Kaukauna Company was drawing water power for the use of some mills which it operated (or leased) on the banks of the Pox river, was part of a system of ponds and canals maintaining slack-water navigation on said river, originally owned by the plaintiff; that the same had been conveyed by plaintiff to the United States, with reservation of “the water powers created by the dams and by the use of the sfirplus water not required for the purpose of navigation, with the rights of protection and preservation appurtenant thereto”; that a necessary part of such work was an embankment across the river front of “lots fi and 7, where they abut on Pox river, of the height of eight or ten feet, and of sufficient thickness and strength to hold the water in said pond”; that the maintenance of such embankment across said lots was necessary to the maintenance of plaintiff’s water power; and that the Kaukauna Company had “cut, broken, torn away, and removed the embankment along and on said lot 6 for the space of about 200 feet.” Plaintiff prayed judgment against the Kaukauna Company, commanding it “to rebuild and restore to it§ former state and condition the embankment and drain on said soutli bank of said river upon and across said lot 6.” The Wisconsin action was tried in the circuit court, was appealed to the Supreme Court of that state, and upon mandate of the latter court there was entered the final judgment in said circuit court, from which the appeal was taken to (the United States Supreme Court, and the bond here sued upon was executed. ' That judgment “considered and adjudged that the plaintiff is the legal owner of the water power created by such dam [describing it] over and above what is required for navigation.” It adjudged $193.22 costs to plaintiffs, and ordered and adjudged that defendants, the Kaukauna Company and others, “be, and they hereby are, perpetually restrained from drawing any water from the pond maintained by the. dam across the Fox river, * * * mentioned in ,tho complain!, for hydraulic power.” The supersedeas bond is in the usual form; the condition being “that if the said defendants above named shall prosecute their writ of error to effect and answer all damages and costs, if they shall fail to make their plea good, then the above obligation to be void.” The judgment appealed from was affirmed by the United States Supreme Court, without any modification. Kaukauna Co. v. Miss. & Green Bay Co., 142 TJ. S. 254, 12 Sup. Ct. 173,-35 L. Fid. 1004. It seems to have been supposed by all parties that the supersedeas bond operated to suspend the injunction, and the Kaukauna Company, during the pendency of the appeal, continued to draw water from the pond for hydraulic power, without interference or objection, and without any application being made to the court to punish it for disobedience of the injunction. The action at bar is brought to recover damages for such continued drawing of the water.</p>

<p>1. 'Federal Courts — Jurisdiction—Equitable Defenses — State Practice.</p> <p>Since the federal courts sitting in Texas observe the distinction between legal and equitable rights, an equitable defense cannot be maintained in an action of trespass to try title brought on the law side of a federal court sitting in that state, though under the state statutes equitable defenses are available in such action in the state courts.</p> <p>2. Same — Deeds—Construction—Parol Evidence.</p> <p>.Where, in trespass to try title, there -was no ambiguity in any of the conveyances, except that the common grantor had made absolute deeds to different parties covering the same tract of land, and the words of description were plain and unequivocal, letters written by such grantor to the grantee under the later deed, preliminary to the conveyance to him, were inadmissible to vary or explain the same.</p>

<p>L Federal Courts — Jurisdiction-Citizenship—Right or Action.</p> <p>Plaintiff, a citizen of New York, and M., a citizen of Indiana, were trustees under a mortgage executed by an Indiana corporation to secure bonds, in which water hydrant rentals due from defendant, a city of Indiana, were pledged as security; but the mortgage provided that the corporation should receive such rentals until default in the payment of interest on the bonds. The ordinance, however, under which the franchise to the corporation was granted, provided that the rentals in question should be paid to a trustee as the grantee or his assigns might elect, and plaintiff was appointed such trustee. Held, that the trust created by the ordinance was separate from that created by the mortgage, and hence plaintiff was entitled to sue therefor in the federal courts sitting in Indiana, without joining the co-trustee mentioned in the mortgage.</p> <p>2. Same — Assignments.</p> <p>Where a city ordinance, under which a water franchise was granted, provided that hydrant rentals should be paid to plaintiff, a nonresident corporation, as trustee, the fact that the original ordinance granting the franchise was not to the water company, but to M.' and his assigns, who. assigned the same to the water company, and that both M. and the company were citizens of the same state, did not preclude the trustee front bringing an action to recover such rents in the federal court, under Act Cong. Aug. 13, 1888, § 1, c. 863, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], which provides that an assignee cannot bring an action based on an assignment in the federal courts, unless his assignor could have done so. had no assignment been made.</p>

These two causes come here upon writs of error to review the judgments entered therein, dismissing the complaints in actions brought to recover damages for breach of warranty of title.

This action was instituted by the United States to recover from the defendant the sum of ?28, the value of 20 trees alleged to have been wrongfully cut by him on certain lands situate in the Como Reserve, in the Missoula Land" District, in the state of Montana.

<p>Appeal from the District .Court of the United States for the Eastern District of Louisiana, in Admiralty.</p> <p>The following is the statement of the case and the opinion of the District Judge:</p> <p>This is a libel in rem by George George, who avers that he was employed as pilot on board the steamer julien Poydras for the term of one year, at the rate of $100 per month, payable weekly; that under the contract ho performed his duties as pilot from September 20, 1901, until December 23, 1901, when the vessel was laid up and the libelant was discharged. He sues for the balance of his wages under the contract, viz., for $898.87. The claimant answered denying that the contract was for a term of one year, and averred that the employment was a hiring at will, and not for a definite period, and that all wages due him were paid to him on his discharge. The evidence showed that libelant earned as pilot on another vessel $180.32 between his discharge in this case and September 20, 1902.</p> <p>PARLANGE, District Judge. It is perfectly clear that the libelant had a binding contract with the boat for a fixed term, as claimed by him, and that he was discharged without cause. The master has admitted the contract. This contract was a reasonable and proper one under the circumstances disclosed by the evidence, and the boat should be held to it.</p> <p>The contract was executed in part. Its continuation and completion was prevented by the boat, and not by any act or omission of the libelant.</p> <p>It is clear that the libelant is entitled to recover the damages which the breaching of the contract has caused him, and that he has a lien on the boat for such damages. Among other cases, see The Wanderer (C. G.) 20 Fed. 655, by Circuit Judge Woods, concurred in by Mr. Justice Bradley.; The Mary Elizabeth (O. O.) 24 Fed. 397, by Circuit Judge Pardee; The Oscoda (D. C.) 66 Fed. 347, by Judge Coxe; Judge (now Mr. Justice) Brown in Scott et al. v. The Ira Chaffee (D. C.) 2 Fed. 401, especially at pages 401 and 403.</p> <p>But the wages which the libelant earned after his dismissal from the Julien Poydras must be deducted from the aggregate claimed by him in his libel. Two ■adjudicated cases were cited in behalf of the libelant, in which it was held that certain set-offs to mariners’ wages would not be allowed. These authorities are sound, but they do not apply. This is not a suit for mariners’ wages ; it is a suit for compensatory damages for the breach of a contract. The de•ductions should be made. See Judge Benedict in Fee et al. v. Orient Fertiliz-mg Co. (D. C.) 36 Fed. 509. Notice Watts v. Camors, 115 t;. S. 353, 6 Sap. Ct. 91, 29 L. Ed. 400, especially at pages 301, 362, 115 U. S., and pages 94, 95, 6 Sup. Ot., 29 t. Ed. 400.</p> <p>There will be a decree in favor of the libelant for the aggregate claimed by him, less the amount he earned, within the term of the contract, after his discharge from the Julien Poydras.</p>

<p>1. Admibamy — Maritime Contract — Breach-—Damages.</p> <p>A contract by the master of a steamboat to collect and transport certain cotton seed from one port to another within a reasonable time, for freight specified, is a maritime contract, a breach of which entitles the shipper to recover damages in admiralty.</p> <p>2. Same — Liber—Bxoeftj oks — Pabties.</p> <p>Where a libel in admiralty was filed against a boat and barge for breach of a maritime contract, parties other than the intervening claimant were not entitled to file exceptions thereto.</p>

<p>1. CONTRACTOR'S BOND — DISCHARGE OF SURETY — AMOUNT RESERVED TILL COMPLETION of Building — Untimely Payment.</p> <p>The fact that the owner pays a building contractor the per cent, of the contract price which, under the contract, should have been reserved till the completion of the building, does not release a surety on the contract- or’s bond, given to secure prompt performance of the work, and also the moneys due laborers and materialmen, from liability to the laborers or materialmen.</p> <p>2. Same — Acceptance of Advances by Materialman.</p> <p>A materialman does not discharge a surety on the contractor’s bond, given to secure iponeys due laborers and materialmen, by receiving acceptances from the contractor, and thereby extending the time of payment, where the acceptances have not been paid, and it does not appear that the contractor was solvent when they were made and insolvent when they were due, or that the extension resulted in loss or injury to the surety.</p> <p>3. Same — Extension of Time.</p> <p>An extension of time to a contractor by a materialman, who might in the first instance have fixed the time of the maturity of Ms claim without the knowledge or consent of a surety on the contractor’s bond given to secure moneys due laborers and materialmen, does not release such surety.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>These are appeals from final decrees of the District Court, Southern District of New York, holding the ferryboat Bergen solely responsible for a collision between herself and the S. S. Ran~a. The latter was coming up the North river in tow of the tug Robert Haddon, on a hawser, with two additional tugs assisting her, made fast to the port and starboard sides of the steamer. The Bergen was bound from her slip in Hoboken to slip at Barclay street, New York. The decision of the District Court is reported in 108 Fed. 555.</p>

<p>Í. Patents — Ineeingement—Incandescent Lamp Sockets.</p> <p>Tbe Lange patent, No. 434,153, for an incandescent lamp socket, claims-1 and 2, were not anticipated, and disclose patentable invention. Also-held infringed.</p>

This cause conies here upon appeal from an order of the Circuit Court, Eastern District of New York. The suit is the ordinary one for infringement of patent. Complainant moved upon affidavits for an injunction pendente lite.

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>These are appeals from decrees of the Circuit Court, Southern Dis-; trict of New York, dismissing bills of complaint for alleged infringements of United States patent No. 293,545, February 12, 1884, to E. E. Waterman for a fountain pen. The court construed the claims of the patent closely, and -held that the devices complained of did not infringe.</p>

<p>1. PATENTS — VARIDITY AND INFRINGEMENT — JEWELERS’ PLATED WlBE.</p> <p>The Burdon patent, No. 881,527, for a process of manufacturing compound ingots for seamless plated wire, for use in the jeweler’s art, by placing a base metal core within a seamless shell of gold, leaving an annular space between them into which is forced a tubular sleeve of solder, the whole being then heated until the solder is fused, uniting the core1 and shell with a uniform thickness of the same, was not anticipated, and is valid. Such patent is infringed by the use of a process which is substantially tbe same in principle, mode of operation, and the effect produced, the only difference being in the manner in which the three parts of the product are assembled, as by inserting the sleeve of solder into the shell and driving the core in afterward, which is merely a variance in the mode of using the same process, and one which is described as such in the specification of the patent.</p> <p>2. Same — Abandonment.</p> <p>The question whether a patentee has abandoned any part of what he has described in his patent is largely one of intention, and the fact that while the specification of a process patent describes two or three ways of performing one of the steps of the process which are equivalent but one is mentioned in the claims does not constitute an abandonment of those not so mentioned.</p> <p>3. Same — Utility—Evidence.</p> <p>Upon the question of the utility of a patented device or process, the fact that it was the first to achieve practical and commercial success is of weight.</p> <p>4. Same — Infringement—Process.</p> <p>Infringement of a process patent is not avoided by reversing one of the mechanical steps of the process, where the purpose and result oí the step is the same, as by expanding an inner tube, instead of compressing an outer one, for the purpose of bringing the two into close contact.</p> <p>5. Same — Process fob Making Plated Wire.</p> <p>The Meyer patent, No. 445,814, for an improvement in the process of the Burdon patent, No. 381,527, for manufacturing ingots for seamless plated wire, construed, and held infringed.</p>

<p>1. Patents — Infringement—Electrical Measuring Instrument.</p> <p>The Weston patent, No. 892,387, for an electrical measuring apparatus, was not anticipated, and shows patentable invention; also hold infringed.</p>

Action to Recover Damages for Wrongful and Unlawful Acts and Injuries. ■ The amended complaint avers: That plaintiff is a citizen of California, having his domicile in Inyo county, in that state. That defendants are citizens and residents of the State of Nevada. That the matter in controversy in this action, exclusive of interest and costs, exceeds in value the sum of $2,000.

<p>1. Post Office — Use of Mails to Defraud — Elements of Offense.</p> <p>In a prosecution for the use of the mails for the furtherance of a scheme intended to defraud, the government is bound to prove beyond a reasonable doubt a plan or contemplated series of actions for the purpose of defrauding another by deception, artifice, false promises, or pretenses ; that a part of the plan must be the use of the mails for the purpose of effecting the same; and that the party charged deposited or caused to be deposited in the mails some letter or paper in the execution of such plan.</p> <p>2. Same — Fraudulent Intent.</p> <p>In a prosecution for the usé of the mails with intent to defraud in the use of an alleged power of mental healing, defendant’s fraudulent intent is a question of mental condition, not provable as an ordinary fact, but is to be found by the jury from the attendant and surrounding circumstances.</p> <p>3. Same — Burden of Proof of Power to Accomplish What was Promised.</p> <p>■Where, in a prosecution for the use of the mails with intent to defraud, in the exercise of an alleged power of mental healing, defendant claimed that she was able, by the mere emanations of her own mind, to impart such power to another residing at a great distance, and through a second person, not present, to a third person, also absent, without such third person’s knowledge, such claim being contrary to well-settled and accepted natural laws, the burden was on the defendant to establish the existence of such power; but if it was found that defendant believed she could accomplish what was promised, or there was any doubt that she knew she could not, that doubt should be considered in defendant’s favor, and a verdict of acquittal rendered".</p> <p>4. Same — Weight of Evidence.</p> <p>Where, in a prosecution for fraudulent use of the mails in furtherance of a scheme to defraud by mental healing, certain Avitnesses testified that they were treated for diseases and helped by -defendant through emanations of her mind, while they were totally ignorant of defendant’s acts and doings, such phenomena being contrary to nature and not explainable under any natural principle or known laws, this evidence might be rejected by the jury, though uneontradicted.</p> <p>5. Same — Witnesses—Prejudice.</p> <p>The relations, feelings, and prejudice toward accused or between her and the witnesses can only be considered by the jury when it appears that such feeling of animosity has been such as to influence their testimony.</p> <p>6. Same — Evidence.</p> <p>In a prosecution for using the mails in furtherance of a scheme to defraud, consisting of the practice of an alleged power of mental healing, evidence of one of defendant’s employes in regard to the manner of conducting her business and as to the classes of cases in which treatment was undertaken and money received was admissible.</p>

<p>1. Equity — Jurisdiction—Libei,.</p> <p>A mere libel or defamation of business reputation, unaccompanied by threats, intimidation or coercion, or by any direct attach upon property or conduct of business, or by any direct or indirect creation of liability on the part of the complainant, is not within the equitable jurisdiction of the circuit court of the United States.</p> <p>2. Same — Demubbee.</p> <p>A demurrer does not admit the truth of general allegations of fraud, but only the facts set forth as constituting the alleged fraud and all reasonable deductions from them. And where a bill avers a legal inference which the facts stated therein do not justify, a demurrer, while confessing the facts, will not be considered as admitting the correctness of the inference.</p> <p>(Syllabus by the Court.)</p>

<p>T. ADMIRALTY — DECREE—INTEREST—APPEAL.</p> <p>Where a final decree of the district court sitting in admiralty in the third judicial circuit divides damages and costs equally between the libel-ant and the respondents, no allowance of interest being “specially directed” pursuant to paragraph 4 of rule 30 of the circuit court of appeals (90 Fed. elxviii, 31 C. C. A. elxviii), and on "appeal such decree is simply “affirmed with costs” by the circuit court of appeals, the district court thereafter is without authority to allow interest on the final decree; and no interest can be recovered thereon unless the circuit court of appeals so modifies or amends its affirmatory decree as to include interest.</p> <p>(Syllabus by the Court.)</p>

<p>1. BANKRUPTCY — EXEMPTIONS.</p> <p>Where, after. judgment had been recovered against a defendant for bressfh of marriage promise, he was adjudged a bankrupt, it was no grouiid for opposing his state exemption that he would not be able to maintain a claim for it in the state courts as against such judgment.</p> <p>2. Same.</p> <p>The only question to be determined on a bankrupt’s application for his exemptions under state laws is whether he is entitled to the same as against general creditors.</p> <p>3. Same — Fraudulent Conveyances — Discharge.</p> <p>Where, more than four months prior to the institution of bankruptcy proceedings, the bankrupt conveyed certain property to his wife for the purpose of raising money to pay the expenses of an impending suit for breach of marriage promise, such conveyance was no ground for denying the bankrupt’s discharge, under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], which requires that a fraudulent transfer, in order to prevent a discharge, must be made within four months.</p> <p>4. Same — Concealment oe Assets.</p> <p>In the absence of proof of a clear misstatement by the bankrupt with regard to his ownership of real estate, the title to which stood in the name of Ills father, amounting to a concealment of assets, or a false oath, the fact that the bankrupt and his wife resided on such real estate, and that the bankrupt was the father’s prospective heir, was no ground for refusing a discharge.</p> <p>5. Same — Excepted Liaiuiutier.</p> <p>Where, though a judgment for breach of promise was by far the principal liability of a bankrupt, it was not the only one, the bankrupt could not be deprived of a discharge on the ground that the judgment was recovered on a claim constituting a willful injury to the person, and so was within the excepted liabilities.</p> <p>6. Same — Exemption—Withholding Discharge to Permit Test in State Courts.</p> <p>Where it was contended that a bankrupt was not entitled to retain property claimed as exempt as against a judgment for breach of marriage promise, and the only way in which the judgment creditor could test the question was by proceedings in the state courts, the bankrupt's discharge 'should be withheld until the judgment creditor was afforded a reasonable opportunity to test her rights.</p>

<p>1. Chinese Exclusion — Aeeest foe Deportation — Bail.</p> <p>A Chinese person arrested in this country for deportation under the-exclusion acts may be admitted to bail by a district court or judge pending his hearing before the commissioner.</p>

<p>1. Trade-Names — Unfair Competition — Injunction—Pleading.</p> <p>A bill for injunction, by the Winchester Repeating Arms Company, alleging that defendant advertises for sale “Winchester Model Single Shot Take Down Rifles,” thereby securing correspondence and getting hold of customers to whom it- sells guns other than those made by complainant, states no cause of action, though alleging that defendant carries no stock of complainant’s rifles; it not being shown,that the mail-order business requires the carrying of a stock, and not being alleged that persons have bought guns ol' defendant believing them to have been made by complainant.</p> <p>2. Jurisdiction of Federal Courts — -Amount tn Controversy.</p> <p>A complaint for injunction alleging that complainant’s trade-name is worth in excess of $5,000; that defendant’s acts are calculated to deceive and mislead intending purchasers of complainant’s product, 'to its “great loss, injury, and damage”; and that unless defendant’s acts are checked the reputation of complainant and its rifles will still further suffer great and irreparable damage -does not show jurisdiction in the federal court, as it cannot be assumed that the trade-name will be destroyed, or that complainant’s damages are in excess of $2,000.</p>

<p>1, Corporations — Receivers—Action by Stockholders — Courts—Jurisdiction.</p> <p>Wliere an action was pending in a state court tor the recovery oí money against a corporation, in which a receiver had been appointed, and an application by stockholders to compel the receiver to sue to set aside certain modifications of a favorable contract, by which royalties payable to such corporation were materially reduced, was denied, but the court granted such stockholders leave to sue tlio receiver, and to bring suit in equity against certain other corporations which had been instrumental in procuring such modifications, making the receiver a party, for the same and other eqnitable relief, the leave so granted did not authorize the maintenance of such suit in any other court than that in which the receivership was pending.</p>

<p>1. Shipping — Contract to Receive and Dispose oe Excavated Material-Burden of Proof.</p> <p>In making an oral contract by which libelant agreed to receive at his-dumping board, and to .dispose of, excavated material for a fixed price per load, it was admitted that nothing was said as to which party should pay the expense of unloading the trucks at the dump. Respondent paid such expense, and sought to set off the same against the amount claimed by libelant to be due under the contract, and introduced testimony intended to show a custom for such expense to be paid by the dump owner. Beld that, the burden of proof being on the defendant, whether the claim was regarded as a set-off or an affirmative defense, such testimony was-not sufficient to overcome the positive and uncontradicted denial by libel-ant that he assumed the expense, corroborated also by the further fact that no claim therefor was made by respondent until several months after-performance of the contract began, although settlements were made-monthly.</p> <p>2. Admiralty — Set-Off. '</p> <p>A set-off is not cognizable in admiralty except so far as it relates to-the particular transaction which is the subject of the action, and goes-to reduce or overcome the libelant’s demand.</p>

<p>1. Judgments — Default—Application to Open — Laches.</p> <p>Plaintiff, though properly served with summons by leaving a copy with an adult member of her family, lmew nothing of the suit, or a judgment subsequently recovered by default, until an attachment execution was issued, 11 years after the judgment had been taken by default She did not authorize an appearance to be entered in her behalf, though such authority was given in form by her husband without her knowledge, and immediately on learning of the judgment she applied to open the same. Held, that plaintiff was not guilty of laches, and that her application should be granted.</p>

<p>3. Bankruptcy — Perish able Property -Sale by Receiver — Exemption.</p> <p>Where a bankrupt’s receiver was ordered to sell the bankrupt’s property, as perishable, before the time arrived for the appointment of a trustee, the bankrupt was entitled to have certain of the property selected by him to make up the amount of his state exemption set aside and held by the receiver until his right thereto could be determined.</p>

In Bankruptcy. The petition of N. Shaffer, a member of the firm of N. Shaffer _ &.Son, addressed to the court, set forth as follows: That involuntary proceedings were instituted against said firm January 14. 1904, and the same day, on due application, Moses Salsburg was appointed receiver, and took possession of the goods, merchandise, and property of the alleged bankrupts; that among such property was one bay horse, of the value of $05, one covered delivery wagon, of the…

<p>1. Federal Courts — Removal oe Cause---Right to Remand — Watviot.</p> <p>Where, on the removal of a cause to the federal court, plaintiff, simultaneously with the filing of the case in such court, moved to remand, he could not be held to have waived his right thereto by appearance or otherwise.</p> <p>2. Same — Right to Remove — Federal Receivers.</p> <p>Where the issues in an action brought by a federal receiver of a corporation in a state court did not raise any federal question, the fact that plaintiff was a receiver and was appointed by a federal court did not authorize defendant to remove the case to such court.</p> <p>S. Same — Statutes—Conditions—Co nstruction — Waiver.</p> <p>So much of Act Cong. Aug. 13, 1888, c. 860, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], conferring jurisdiction on federal courts, as relates to the amount In controversy, and prohibits suits by assignees, etc., which could not have been maintained by their assignors in the federal courts, is jurisdictional, and cannot he waived, but that part prohibiting the arrest of a person in one district for trial in another, and prohibiting the bringing of civil suits against any person in any district other Hum that whereof he is an inhabitant, except that, where jurisdiction is founded on diversity of citizenship, the suit may be brought in the district of Hie personal residence of either plaintiff or defendant, relates entirely to the personal interests of the parties, and may be waived, even in a removed case.</p> <p>4. Same — Action by Nonresident Receiver.</p> <p>Where a citizen of Pennsylvania was appointed receiver of a corporation by the United States Circuit Court sitting in Massachusetts, he was authorized to bring suit in the federal courts against a citizen of New York in the district of his residence; and hence, such receiver having brought the suit in the Massachusetts state courts, the defendant was authorized by Act Cong. Aug,. 13, 1888, c. 86(i, §§ 1, 2, 25 Stat. 433, 434 [17. S. Comp. St. 1901, pp. 508, 509], to remove such cause to the federal circuit court sitting in that state.</p>

<p>1. Trial — Explanation op Charge in Absence oe Counsel.</p> <p>It is not tiie duty of a court to send for counsel of a party before answering questions asked by a .jury, (luring their deliberations, in explanation of the charge previously given, although usually the court will not, in the absence of counsel, give further instructions as to the correctness of which there can be any question.</p> <p>2. Master and Servant — Place to Work — Building New Structures.</p> <p>An employer is not under the same duty with respect to providing a safe place for the eniployé to work, where the work is the construction of a new building, as he would be if the building were complete and fitted for use, and he cannot be held to the same degree of care witii respect to temporary floors, or other structures, mainly constructed by the workmen for their own use, for purposes which are constantly changing as the work progresses, and which uses cannot in all cases be foreseen by the employer.</p> <p>3. Same — Injure oe Servant — Negligence oe Foreman.</p> <p>A foreman, having direction of mechanics and other workmen engaged with him in the construction of a building, is a fellow servant with such workmen in such sense that their common employer is not liable for an injury to a workman on the ground that the foreman was negligent merely in permitting the men to do work in a certain way which was more dangerous than another, but which was not adopted by his orders.</p>

In Admiralty. Libels in rem filed by the owners, respectively, oí steamers Ann Arbor No. 2 and Burnham, to recover salvage against the steamer J. Emory Owen and her salved cargo of grain.

<p>1. Boundakies — Original Monuments — Field Notes.</p> <p>Where, in an action involving a disputed boundary line, there were no original monuments or standard corners west of a certain section corner to be found on either one of the lines claimed as the southern boundary of a township, in the absence of other evidence showing its location, the court was required to look to the field notes of the original survey for the purpose of determining where the line was originally run.</p> <p>2. Same.</p> <p>Where a re-establishment of a township line in courses and distances agreed with the field notes of the original survey, and the difference between that line and the line fixed by other surveyors, contended by defendants to be the proper line, was too great to be accounted for on the supposition of an inaccuracy of measurement or error of computation in tunning the original line, and in addition defendant’s line crossed a cer- ' tain river twice, which fact was not mentioned in the field notes of the original survey, defendants’ line will be disregarded.</p> <p>3. Same — Public Lands — Trespass—Bark—Conversion—Damages.</p> <p>Where bark was taken by defendants from trees on the public domain by reason of defendants’ misapprehension of the true location of a township boundary line, and three surveyors had erroneously located the line before the alleged trespass in accordance with defendants’ contention, proceeding on an erroneous theory, and there was no evidence that defendants knew or believed that such line was erroneous, or that the true boundary line was that fixed by a previous resurvey, they were not guilty of willful trespass, and were therefore liable only for the stump-age value of the bark.</p>

<p>Upon Demurrer to Cross-Bill.</p>

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

<p>1. Tbade-Marks — Begistbation.</p> <p>Act March 3, 1881, c. 138, 21 Stat. 502, 1 Supp. Rev. St. p. 322 [TJ. S. Comp. St. 1901, p. 3401J, providing for the registration of trade-marks and their protection, does not create any trade-mark, but on its face presupposes the existence of a valid trade-mark which may be registered on compliance with the requirements of the law.</p> <p>2. Same — Inebingement.</p> <p>If, owing to non-compliance with the provisions of the act, the registration of a valid trade-mark be void, the trade-mark is not thereby nullified or injuriously affected, but still retains the nature and properties of a common law trade-mark, for the infringement of which suit may be' maintained in the federal courts, if the requisite diversity of citizenship" exists and the requisite jurisdictional amount is involved.</p> <p>(Syllabus by the Court.)</p>

<p>In Equity. On petition for modification of a decree for a preliminary injunction.</p>

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

<p>Petition to Revise and Superintend the Proceedings of the District Court of the United States for the Northern District of Mississippi.</p>

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

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

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

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

This cause comes here on appeal from a decree in favor of libelant for injuries received while working in a gang of stevedores discharging timber from the steamship Gladestry.

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

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

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

Action by Thomas W. Ross against Andrew J. Saunders, trustee of the bankrupt estate of George W. Ross and Patrick J. Flemming. The complainant sought to enforce a lien upon a liquor license formerly belonging to the firm of George W. Ross & Co.

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

<p>Motion for heave to Withdraw Answer.</p>