Volume 129 — Federal Reporter

This action was brought in the Circuit Court of the United States for the District of Minnesota, Fifth Division, December 29, 1898, by George E. Desmond, a citizen of Wisconsin, against Hamilton M. Peyton and Levi A. Barber, citizens of Minnesota, and residents of the Fifth Division of the Minnesota District.

This cause comes here on appeal from a decree of the District Court, Eastern District of New York, in favor of the libelant, owner of the steamer St. Paul, claiming loss under a policy of marine insurance. The opinion of the District Court is found in 124 Fed. 93.

<p>1. Foreign Corporation — Decree Appointing Receivers Construed.</p> <p>A decree appointing receivers for a foreign corporation, and directing that they continue to operate the property until otherwise directed, and from the moneys coming into their hands pay all sums due to employés and all expenses of carrying on the business, construed, under the circumstances, as requiring the receivers to pay from the proceeds of the corporation’s property all claims for wages earned prior to their appointment, as well as wages earned thereafter.</p> <p>2. Same — Priority—Wages op Employes.</p> <p>Where a federal court could have acquired jurisdiction to appoint receivers for a foreign corporation only by consent of the parties, and no objection was made by any party to such appointment, or to a decree requiring the receivers to pay from the proceeds of the corporation’s property all sums due employés, together with all the expenses of carrying on the business, the receivers could not thereafter, under the circumstances of this case, refuse to pay in full claims for wages earned by employés of the corporation prior to the receivers’ appointment, none of which exceeded $300 in amount, in preference to other unsecured claims.</p>

These are appeals from a decree of the district court, in admiralty, rendered in a cause of collision between the steamer E. P. Wilbur and the barge Martha on the evening of October 26, 1900, near the lower end of Lake St. Clair, and in a channel or cut extending from a point not far above the place where the waters of the lake pass down into the Detroit river, upward through the shoal water of the lake for several miles.

This appeal was brought by William F. Stone, collector of customs at the port of Baltimore, from an affirmance of a decision of the Board of General Appraisers (In re Whitridge, G. A. 5110 — T. D. 23,632), which reversed the collector’s assessment of duty on certain merchandise imported by Whitridge, White & Co.

On December 6, 1898, the Tacoma Smelting & Refining Company, a corporation owning and operating a smelter near Tacoma, in the state of Washington, made a lease of its entire smelting plant and all… Held: at which it was ordered by the holders of more than two-thirds of the stock that the corporation be dissolved, and its property sold and assets distributed.

This cause comes here upon a writ of error to review a judgment of the District Court, Western District of New York, convicting plaintiff in error of a violation of section 5440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676], which reads as follows: “5440.

<p>1. Chattel Mortgages — Validity—Fraud—Federal Courts — State Law-Rule of Decision.</p> <p>In determining whether a chattel mortgage executed by a bankrupt was fraudulent on its face, the federal courts follow the decisions of the courts of last resort of the state in which the controversy arose, the law on the subject being regarded as a rule of property.</p> <p>2. Same — Mortgagor’s Possession — Effect.</p> <p>Where a chattel mortgage on a bankrupt’s stock of goods authorized the mortgagor to continue in possession and sell the goods, but required that he should deposit to the mortgagee’s bank account each day the receipts for sales, over the amount of the running expenses of the store, to be applied on the debt, and that, if he failed so to do, the trustee named in the mortgage should at once take possession and sell the stock at public auction, such mortgage was not fraudulent on its face.</p> <p>1f 1. State laws as rules of decision in federal courts, see notes to Griffin v. Overman Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>H 2. See Chattel Mortgages, vol. 9, Cent. Dig.' § 410.</p>

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

<p>Cross-Appeals from the District Court of the United States for the Eastern District of Michigan.</p>

<p>1. Bond of Letter Carrier — Liability of Surety — Collecting Letters to be Registered.</p> <p>The bond of a letter carrier and of his surety for the faithful discharge of the duties and trusts imposed upon the former as a letter carrier, “either by the postal laws of the United States or the rules and regulations of the Post-Oflice Department of the United States,” binds the surety for the faithful discharge by his principal of the duty of collecting letters and packages to be registered which was imposed upon the letter carrier by an order of the Post-Office Department during the term of the bond.</p> <p>2. Same — Construction—According to Laws and Regulations.</p> <p>The parties to a bond for the faithful discharge of the duties of an office according to laws and regulations, which the obligee has the right and power to change at any time, necessarily contemplate and intend to guaranty thereby the discharge of the duties of the office imposed upon the principal by the subsequent legislation or regulation of the obligee during the term of the bond, which are within the scope of the office, and are germane to, and naturally connected with, its duties when the bond is made. They do not warrant or intend to guaranty the discharge of duties beyond the scope of the office, disconnected with its business or foreign to its duties at the time of the execution of the bond.</p> <p>3. Same — Duty of Collecting Letters to be Registered Germane to Former Duties.</p> <p>The duty of collecting letters and packages to be registered imposed upon letter carriers by the order of the Postmaster General of December 5, 1899, is within the scope of the office of a letter carrier, and germane to previous duties pertaining to it.</p> <p>4. Same — United States may Recover of Surety for Theft by PrincipalBailee for Hire.</p> <p>The United States may maintain an action against the surety on the bond of a letter carrier who has stolen letters to be registered for the value of the contents of the stolen letters, where the contents of no single letter exceeded $10 In value, although the owners of the letters have made no claim against the government for indemnity, and nothing has been paid to them.</p> <p>U 1. Inabilities of sureties for acts of officers under color of office, see note to Chandler v. Rutherford, 43 C. C. A. 222.</p> <p>ri 4. See Bailment, vol. 6, Cent Dig. §§ 98-100, 136.</p> <p>A bailee for hire of services may maintain an action of trespass, trover, or conversion for the disturbance of his possession by a wrongdoer, and may recover the value of the property as damages.</p> <p>(Syllabus by the Court)</p>

This is a writ of error to a judgment of the Circuit Court of the United States for the District of South Carolina rendered on the 4th day of August, 1902, dismissing at the cost of the plaintiff a certain action at law instituted in said court against the defendants.

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

<p>Appeal from the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>On July 25, 1902, M. E. Thornton and his wife, averring themselves to be the sole surviving legal representatives of William Rutherford and of William Rutherford and John P. McNeel, who in the year 1817 composed the commercial firm of William Rutherford & Co., filed their bill in the lower court, in which, inter alia, they alleged that Rutherford and McNeel in the year 1817, for the nominal consideration of $500, conveyed to the president and selectmen of the city of Natchez, and to their successors, forever, certain lots in the city of Natchez, which were then the property of said commercial firm, to have and to hold the same “for the uses and purposes of a burying place and so to be forever kept, used and enclosed in a decent and substantial manner and to and for no other use or purpose whatsoever”; that the land continued to be used for the purposes to which it was dedicated by the grantors until about the year 1890, when the board of mayor and aldermen of the city of Natchez, without the knowledge or consent of complainants, who then resided in North Carolina, and without notice to them, contriving and intending to defeat the said trust, and to convert the land to another and a different purpose, but at the same time to deceive the complainants, and to preserve the semblance of the trust, while defeating the intent of the grantors without an actual, apparent repudiation of the trust, caused the remains of the deceased persons interred in said land, with the tombstones, coffins, and all other evidences of the use of the land as a burying ground, to be dug up and removed, and the land to be graded down and leveled and converted into a public park, for the purposes of diversion and recreation, for the use of the city of Natchez, and ceased altogether to use the land for the purpose of a burying ground, but that, for the purpose of deceiving complainants, or others who might have notified them, said city authorities caused an excavation to be dug in a remote part of the land, and the remains of some of the deceased persons formerly buried in said land to be placed therein, and a small mound of earth to be placed thereon, with a plain slab of stone, and then contended and still contend that in so doing they are executing the trust in conformity to the terms of the grant; that, by reason of the fraud so attempted to be practiced on them, complainants had no notice of the breach of trust and of the fact that the lands had ceased to be used for the purpose of a burying place, and had been converted to another and entirely different use, until the year 1901; that by the misuser and nonuser of the land, which is of the value of $10,000, the same has reverted to the complainants. The prayer is that the land be decreed to have reverted to the complainants, and that the defendants pay rents and revenues at the rate of $1,000 per annum from January 1, 1890, or, in the alternative, that defendants be perpetually enjoined from further user of the land for any other different purpose than that of a burying place. A demurrer was interposed on a number of grounds, among which are the following: Want of equity in the bill. Want of jurisdiction in the court, because the suit is an action of ejectment; and, if it be a bill to remove clouds from title, it cannot be maintained, because complainants are not, and the defendants are, in possession. That complainants do not show that they have acquired or hold the interest of McNeel in the land. That by the terms of the deed, as shown in the bill, the fee passed absolutely and unconditionally to the city of Natchez, and that no provision was made in the deed by which the grantors, their heirs or legal representatives, could be reinvested with the title. That complainants are barred by their laches. That the suit is barred by the 10-year statute of limitations. That the bill does not show that complainants’ cause of action was fraudulently concealed. That the bill shows that defendants exercised such public ownership over the land as to render it impossible that complainants, had they exercised reasonable diligence, would not have known of their rights more than 10 years before the filing of this suit. That complainants’ alleged want of knowledge will not excuse them from the bar of the statute of limitations. The demurrer was sustained, the bill was dismissed, and the complainants have appealed.</p>

<p>1. Paupers — Prosecution of Suits — Common Law.</p> <p>St. 11 Hen. VII, c. 12, providing that every poor person having a cause of action against another shall have writs, according to the nature of his cause, without payment of fees, and assignment of counsel by the court, who shall act for him without reward, had reference only to a plaintiff prosecuting a civil action, and did not apply to criminal appeals.</p> <p>2. Same — Federal Statutes — Criminal Cases — Writs of Error.</p> <p>Act Cong. July 20, 1892, 27 Stat. 252, c. 209 [U. S. Comp. St 1901, p. 706], providing that any citizen entitled to commence any action or suit in any court of the United States may commence and prosecute to conclusion any such spt or action without being required to prepay fees or costs, or give security therefor, before or after bringing suit or action, does not entitle a defendant in a criminal case to prosecute a writ of error out of the United States Circuit Court of Appeals in forma pauperis, such writ constituting a continuation of the original litigation, and not a commencement of a new action.</p>

<p>1. Customs Duties — Classification—Carbons for Electric Lighting— Earthy or Mineral Substances.</p> <p>Sticks of carbon intended and adapted to be used in electric lighting, but requiring to be cut into shorter lengths and to have the ends shaped before they are suited for such use, are dutiable under the provision in paragraph 97, Tariff Act July 24, 1897, c. 11, Schedule A, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], for “articles and wares composed wholly or in chief value of * ♦ * carbon, not specially provided for, * * * if not decorated,” and not under paragraph 98 of said act, 30 Stat. 156 [U. S. Comp. St 1901, p. 1633], as “carbons for electric lighting.”</p>

This appeal was brought by C. Wesley Thomas, Collector of Customs at the port of Philadelphia, from an affirmance (123 Fed. 193), by the Circuit Court of two decisions of the Board of General Appraisers covering, importations by John Wanamaker, and reversing the assessment of duty.

<p>1. Carriers — Injuries to Passengers — Time to Alight.</p> <p>Where a train stopped for a passenger to alight, and when he was in the act of doing so, and without allowing a reasonable time for that purpose, it was suddenly started with a jerk, whereby he was thrown from the car and injured, he was entitled to recover therefor.</p> <p>2. Same — Contributory Negligence — Evidence.</p> <p>In an action for injuries to a passenger while attempting to alight, there being conflict in the evidence on the issue as to his alleged contributory negligence in stepping off the train while it was moving, it presents a question for the jury.</p> <p>IT 1. See Carriers, vol. 9, Cent. Dig. § 1228.</p>

<p>1. Contempt — Proceedings fob Violation of Interlocutory Injunction-Review.</p> <p>Under the rule laid down by the Supreme Court in the ease of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092, an order in an equity suit adjudging the defendant guilty of contempt for violating an interlocutory injunction restraining infringement of a patent cannot be reviewed by the Circuit Court of Appeals, except upon an appeal from the final decree in the cause.</p>

<p>1. Salvage — Nature of Service by Master and Crew — Effect of Towage Contract by Owner.</p> <p>A contract by an owner of tugs to tow dumpers from their dumps in the city to sea and return imposed no obligation on -the master and crew of one of the tugs to go to the rescue of a dumper which had been abandoned by another tug, and had drifted out to sea; and where they did so, and at considerable peril to themselves rescued her, and brought her safely to port, the service %vas voluntary, and they are entitled to compensation as salvors.</p> <p>2. Same — Amount of Award.</p> <p>A salvage award of $1,175 to the master and crew of a tug, consisting of nine men, for the rescue of a dumper worth $8,000 to $10,000, which had become derelict, and drifted 25 miles out to sea in a gale, and would probably have been a total loss, held not excessive, where the service was entirely successful, and was performed at considerable personal risk.</p> <p>If 2. Salvage awards ih federal courts, see note to The Lamington, 30 C. C. A. 280.</p>

<p>1. Railroads — Property — Transfer — Bondholders — Equity — Remedy at Law.</p> <p>■ Where the property of a railroad company was acquired by another railroad company under foreclosure proceedings which were void as against á holder of bonds guarantied by the mortgagor company, such bondholder was not entitled to sue the purchasing company in equity to apply the assets so transferred to the payment of his bonds, until he had exhausted his legal remedies against the mortgagor.</p> <p>2. Same — Recovery of Bonds — Actions—Joinder.</p> <p>Where a holder of bonds guarantied by a railroad company deposited them with a trust company for specific uses, and thereafter such company wrongfully refused to deliver the bonds on demand, the owner could not join an action to recover them with a suit against another corporation, which had acquired the assets of the guarantor company under void foreclosure proceedings, to apply such assets in payment of the bonds; such company being in no way responsible for the trust company’s withholding of the bonds.</p> <p>3. Same — Damages—Proof.</p> <p>Where railroad bonds were deposited for specific uses with a trust company, which afterwards wrongfully refused to return the same on demand, the fact that, because the bonds were not dealt in on the exchanges, and were obligations of a corporation which had become practically defunct, it was rendered difficult to establish their value, did not justify plaintiff in resorting to a court of equity to recover the same.</p>

<p>1. Appeal — Interlocutory Decree. Granting Injunction — Advancement of Cause.</p> <p>A decree on the merits, finding infringement of a patent, awarding a permanent injunction, and directing a reference to ascertain damages and profits, is an interlocutory decree granting an injunction, appealable under section 7 of the act creating the Circuit Courts of Appeals (Act March 3, 1891, c. 517, 20 Stat. 828), as amended by Act June 6, 1900, c. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 550], and the appeal is entitled to precedence, as provided in said section, and to be advanced on the calendar for hearing, subject, however, to the rules of the court as to the filing of briefs, unless for reasons of exigency shown a special order is made for an earlier hearing.</p> <p>If 1. Review of interlocutory decrees granting or continuing injunctions in patent cases by Circuit Court of Appeals, see notes to Consolidated Piedmont Cable Co. v. Pacific Cable Ry. Co., 3 C. C. A. 572; Southern Pac. Co. v. Earl, 27 C. C. A. 189; New York, N. H. & H. R. Co. v. Sayles, 32 C. C. A. 484.</p>

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

<p>1. Appeal — Findings of Trial Court — Conflicting Evidence — Review.</p> <p>A finding of fact by the trial court based on conflicting evidence will not be reversed on appeal where it is not clearly erroneous.</p>

The Westinghouse Electric & Manufacturing Company filed an original bill against the Bullock Electric & Manufacturing Company to restrain the infringement of certain letters patent granted to Nikola Tesla, being patents Nos. 381,968, 382,279, and 382,280.

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

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

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

In Equity. Suit for infringement of letters patent No. 658,888 for a wood-distilling apparatus, and No. 674,491 for a process of distilling wood for making charcoal and saving the by-products, granted to Carl W. Bilfinger on a division of the same application. On final hearing.

<p>1. Patents — Infringement—Incandescent Lamp Sockets.</p> <p>The Perkins patent, No. 626,927, for an incandescent lamp socket, was not anticipated, and. while the parts were old, covers a new combination of utility, and discloses patentable invention. Claims 3, 4, and 9 also held infringed. '</p> <p>2. Same — Combination and Aggregation Distinguished.</p> <p>Elements of the patent considered, and held to constitute, not a mere aggregation of separate elements, but a composite construction, in which the several parts co-operate to produce a common and combined result, which the law accepts and sustains.</p>

<p>In Equity. Suit for infringement of letters patent No. 35,481, for a design for a gas lamp, granted December 24, 1901, to Alfred H„ Humphrey. On final hearing.</p>

<p>L Patents — Preliminary Injunction against Infringement — Effect of Prior Decision.</p> <p>Where á patent has been held valid and infringed by a court of another circuit after a contested hearing, it is the practice to grant a preliminary injunction on such decision unless new evidence is produced which is of such character that it may fairly be supposed that it would have changed the decision if it had been before the court in the prior suit</p> <p>2. Same — Street Car Truck.</p> <p>A preliminary injunction granted against infringement of the Brill patents, No. 627,898 and No. 627,900, for a truck for street cars, on a prior decision involving practically the same issues.</p> <p>II1. See Patents, vol. 38, Cent. Dig. § 488.</p>

<p>J, Patents — Anticipation—Electric Motors.</p> <p>The Tesla patents, Nos. 511,559 and 511,560, for a method and means of operating electric motors, held void for anticipation, by the Ferraris publication at Milan, on evidence which failed to carry the date of Tesla’s invention back of such publication.</p>

<p>In Equity. Petition of Erwin & Callaway and Hall & Wimberly, for attorney’s fees. Exceptions to master’s report.</p>

<p>1. Contracts — Construction—Usage.</p> <p>While proof of a general usage is admissible to explain a contract, in the absence of express stipulations, or where the meaning of the parties is uncertain, from the language used, usage cannot be shown to vary the legal import of the contract as made, or to add new terms thereto.</p> <p>2. Same — Application of Usage.</p> <p>Where numerous lots of corsets were offered for sale by letter as a “job lot” and as an entirety, the letter stating that “the enclosed stock sheet shows the quantity of each style and color,” and that “the proportion of sizes,” as shown, “is nearly perfect,” which offer defendant declined, but selected and offered to take three of the lots as specified in the stock sheet, the acceptance of defendant’s offer made a contract based on express stipulations, which was not within a usage that, in the purchase of job lots, the buyer is not obligated if the variation in the deliveries is considerable, and that it rests with the buyer to determine whether the discrepancy is reasonable or unreasonable.</p> <p>3. Same — Validity—Definiteness.</p> <p>A usage that, in sales of job lots of goods, the buyer is not obligated if the variation in the quantity delivered is considerable, and that it rests with the buyer to determine whether the discrepancy is reasonable or unreasonable, no definite test being recognized, is invalid for uncertainty.</p> <p>4. Same — Performance of Contract — Substantial Variations.</p> <p>Where defendant purchased three job lots of corsets, represented on plaintiff’s stock list as containing 25ln>/i2 doz., 20411/12 doz., and 8OV12 doz., and the deliveries offered contained 266% doz., 267i/i2 doz., and 78 doz., the variance was substantial, and entitled the buyer to refuse acceptance.</p> <p>5. Same — Question for Court.</p> <p>Where, in an action for breach of a contract of sale, the facts were undisputed, and a verdict for plaintiff would be unsupported by testimony or legitimate inference from any fact in evidence, it was proper for the court to determine the same without submitting it to the jury.</p> <p>6. Same — Waiver.</p> <p>Where defendant agreed to purchase certain job lots of corsets according to a stock sheet showing the quantities, he did not waive his right to refuse to accept because of a material variance in the quantities delivered, by his mentioning only his own mistake in ordering one of the lots, when he intended to order another, which the seller refused to permit him to correct.</p>

<p>In Bankruptcy.</p>

<p>1. Copyright — Infringement—Damages Recoverable in Equity.</p> <p>In a suit in equity for infringement of copyright there can be no recovery in the way of damages beyond the gains and profits which the defendant is shown to have realized from the infringement.</p> <p>IT 1. See Copyrights, vol. 11, Cent. Dig. §§ 81, 83.</p>

<p>.L B’obeign Corporations — Service of Process — Constitutionality of StatT7X.3.</p> <p>Act Ark. Feb. 26, 1901 (Acts 1901, p. 52, § 1), which provides that where a right of action shall accrue in favor of a resident' or citizen of the state against a foreign corporation, whether arising on contract or in tort, and such corporation shall not have an agent in the state or have designated a person on whom service may be made, process may be served on the Auditor of State, and shall be sufficient to give jurisdiction of the person, when construed in connection with previous legislation requiring foreign corporations doing business in the state to designate agents therein on whom process might be served, is constitutional and valid, as applied to corporations which were doing business in the state after the passage of the act and at the time the cause of action sued on accrued therein in favor of a citizen, and a corporation cannot evade service in such case by thereafter withdrawing from the state and canceling the appointment •>f its designated agent.</p> <p>f 1. Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3.</p>

<p>On Petition of the Bankrupt for Discharge, and Objections of Creditors Thereto.</p>

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

<p>At Law. On motions to set aside a verdict in favor of plaintiff and in arrest of judgment. Motions denied.</p>

<p>1. Smuggling — Hokses and Vehicles — Fobeeitubes—Intent oe Ownee.</p> <p>Rev. St § 3061 [U. S. Comp. St 1901, p. 2006], makes it the duty of a revenue officer to search any vehicle on which he suspects there is merchandise subject to duty, or which has been introduced into the United States contrary to law, whether by the person in possession or upon such vehicle; and, if such merchandise is found on the vehicle, the officer is required to seize and secure the same. Section 3062 [U. S. Comp. St 1901, p. 2007] provides that such vehicle shall be liable to seizure and forfeiture ; and section 3063 [U. S. Comp. St. 1901, p. 2007] declares that vehicles used by common carriers shall not be subject to forfeiture unless it shall appear that the agent of the carrier in. charge of the vehicle at the time of the unlawful importation or transportation was a consenting party thereto. Held, that section 3063 should be construed as excluding vehicles other than those used by common carriers from its application, and hence a vehicle owned and let by a liveryman, and used wholly within the United States for the purposes of transporting liquor illegally brought across the Canadian border, was subject to seizure and forfeiture, though the liveryman had no knowledge of the purpose for which the team was to be used.</p>

<p>In Admiralty. On motion for entry of decree.</p>

<p>In Assumpsit for Breach of Contract.</p> <p>On the 17th day of April, 1902, the Smokeless Fuel Company entered into a contract with S. H. Cottrell & Son, by which the fuel company agreed to furnish and deliver to Cottrell & Son, at Richmond, Va., all of the New River R. O. M. steam coal from Collins Colliery Company, they might need from the 17th of April, 1902, to April 17, 1903, approximating 3,000 tons, more or less, and to ship the same in such quantities and at such times as Cottrell & Son might from time to time direct during the continuance of said contract, at prices therein mentioned, but subject to the following provision: “Deliveries of coal under this contract are subject to strikes, accidents, interruptions to transportation, and other causes beyond the control of the party of the first part [the fuel company], which may delay or prevent shipment.” Cottrell & Son called for and received under said contract up to the 10th day of June, 1902, a total of 563 tons, at the price of $2.57 per ton, the contract price. On the 7th day of June, 1902, there was a general strike throughout the mining district, including the mines from which the coal under this contract was to be shipped. From that time on no coal was shipped to Cottrell & Son during the continuance of the contract, though during the pendency of the strike they frequently called for the same; and after it ended, and during the running of the contract, made one request of two car loads of coal, none of which was furnished. This action was brought to recover damages for breach of the contract for failure to furnish the undelivered 2,437 tons of coal thereunder, said damage being estimated on the average of ruling prices for such coal from November, 1902, to April, 1903, which showed a loss to Cottrell & Son of $1.74% per ton, as they claim, and for which the verdict of the jury was rendered in their favor.</p>

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

<p>1. Judgment — Persons Bound — Purchaser Pending Suit.</p> <p>In a suit under section 3 of Act June 28, 1898 (30 Stat. 495, c. 517), which authorizes a suit by a tribe in the Indian Territory to recover lands held by those claiming membership in the tribe, but whose membership or right has been disallowed by the commission or the United States court, and the judgment has become final, the general rule applies that a stranger cannot, by a conveyance or transfer of possession from the defendant pendente lite, acquire any rights which are not subject to the judgment subsequently rendered in the suit, whether or not he is made a party thereto; and where such a purchaser or transferee is brought in by an amended complaint it is not necessary to allege that his membership in the tribe has been disallowed.</p> <p>2. Indians — Action to Dispossess Intruder on Lands of Tribe — Notice before Suit.</p> <p>Act June 28, 1898 (30 Stat. 495, c. 517), provides for the bringing of suits by any tribe in the Indian Territory to dispossess intruders on lands of the tribe, and authorizes such suit by any member of the tribe where the chief or governor fails or refuses to bring it. Section 5 requires the party bringing such suit to serve notice on the adverse party to leave the premises at least 30 days before the suit is commenced; and by section 2 it is provided that when, in the progress of any civil suit in a court of the territory, it shall appear that the property of any tribe is affected by the issues, it shall be the duty of the court to make such tribe a party by service on the chief or governor. Held that, where a suit to dispossess an intruder was originally brought by a member of a tribe who had served the required notice, such notice was sufficient, although the Cherokee Nation afterward joined, and became the plaintiff in the suit.</p> <p>3. Same — Damages for Detention of Property.</p> <p>Where, in such a suit, it appeared that a defendant brought in by an amended complaint, by an agreement with the original defendants, obtained possession of the premises and improvements after the bringing of the suit, and wrongfully withheld possession from the tribe, a judgment may properly be rendered against him for the damages caused by his wroiigful detention, as well as for possession of the properly.</p>

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

This is an action by the plaintiff, as administrator of the estate of Gerard H. Brake, deceased, to recover damages from the defendant for alleged wrongful act or acts, or negligence, or default on the part of the defendant, alleged-to have been the cause of death of Gerard H. Brake.

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

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>John S. Bilby and Russell I. Bilby, the defendants in error in case No. 1,929, brought an action against John L. Carey, the plaintiff in error, to recover certain damages for injuries which they claimed to have sustained in consequence of their being induced by the defendant, Carey, to purchase from him certain Texas cattle through false representations. John S. Bilby and John E. Bilby, the defendants in error in case No. 1,930, brought a similar action against John L. Carey, plaintiff in error. The complaints in the two cases were substantially alike, except that in case No. 1,929 the' damages claimed by the plaintiffs below were $13,611, whereas the damages claimed in case No. 1,930 was the sum of $3,809. The complaints stated, in substance, that in the month of May, 1897, the defendant, Carey, and one C. J. Ply sham were the owners of 755 head of cattle, which had been shipped by them from the state of Texas to the city of St Joseph, Mo.; that said Carey and Hysham offered to sell to the plaintiffs below certain of said cattle, and, to induce them to buy, represented that the cattle had been kept during all of the preceding winter and spring in a part of the state of Texas, which was entirely free from, and not infected with, a certain contagious disease commonly known as “Spanish Fever,” and that they had not been driven over or in the vicinity of any territory in the state of Texas which was infected by said disease, and had not been exposed thereto, but were in a sound and healthy condition; that, relying on this representation, and believing the same to be true, they xiurehased a certain number of the cattle from Carey and Hysham, and paid them therefor; that the representations aforesaid, at the time they were made, were known to the vendors of the cattle to be-untrue; that they also knew that the purchasers of the cattle would pasture them on lands in the state of Missouri with a large number of Missouri and other native-born northern cattle; that they were so pastured by the vendees, after they were purchased, with other northern-bred cattle; that, in consequence of their being affected with the contagious disease aforesaid, they communicated the disease to other cattle with whom they were herded, which belonged to the plaintiffs below, and that in consequence thereof the. plaintiffs lost a large number of cattle of great value, and that they were damaged in the one case to the amount of $15,840 and in the other ease to the extent of $4,580, in consequence of the disease in question being communicated to their respective herds. The plaintiffs below further alleged that they had been paid by C. J. Hysham, on account of the damages claimed in ease No. 1,929, the sum of $2,229, and that they had been paid by O. J. Hysham, on account of the damages claimed in case No. 1,930, the sum of $771, leaving a balance of damages due to them in the one case in the sum of $13,611 and a balance due to them in the other case in the sum of $3,809.</p> <p>Among other allegations contained in the defendant’s answer it was admitted that the plaintiffs had received from O. J. Hysham the sums of money alleged in the complaints, and it was alleged that the sums so paid to the plaintiffs by Hysham were received and accepted by said plaintiffs in full release, satisfaction, and discharge of the pretended causes of action sued upon in said actions, and in full release of said Hysham from all liability thereon. On the trial of the cases the receipt which was signed by the plaintiffs when the sums of money were paid to them by O. J. Hysham was introduced in evidence, and was of the following purport:</p> <p>“Whereas, on or about the-day of May, 1897, T. J. Hysham acting for O. J. Hysham or O. J. Hysham & J. L. Oarey, as partners or either of them, purchased for said O. J. Hysham or O. J. Hysham & J. L. Oarey as partners, or either of them, certain cattle of Comer Bros., in the State of Texas, and</p> <p>“Whereas, said cattle were shipped from the State of Texas and were sold and delivered by said O. J. Hysham or O. J. Hysham and J. L. Oarey as partners, or either of them, to J. S. Bilby in St. Joseph, Missouri, on or about the -day of May, 1897, and</p> <p>“Whereas, said J. S. Bilby did on the day last above named receive from said O. J. Hysham, or C. J. Hysham & J. L. Oarey as partners, or either of them, at St. Joseph, Missouri, about 756 of said cattle, and did at said time execute and deliver to the said O. J. Hysham his certain promissory note for the purchase price of said cattle, together with a chattel mortgage on said cattle thus bought by him securing said note, and “Whereas, the said J. S. Bilby has since paid off and discharged said note and mortgage, and</p> <p>“Whereas, after buying said cattle said Bilby took the same to his farms described in said chattel mortgage, and “Whereas, after taking said cattle to his farm, the said Bilby claims that many cattle owned by him or others have died, and that many other cattle became sickened and impoverished, and</p> <p>“Whereas, the said Bilby claims that the said cattle thus dying and the others thus becoming sickened and impoverished was caused by reason of what is commonly called the Spanish or Texas fever, and “Whereas, the said Bilby claims the said Spanish or Texas fever was imparted or conveyed by the cattle that he thus bought at St. Joseph, Missouri, as aforesaid recited.</p> <p>“Now, therefore, in consideration of the sum of $3,000.00 to me in hand paid by T. J. Hysham and O. J. Hysham, and the further consideration of the said T. J. Hysham and O. J. Hysham having assigned to me all claims and causes of action that they, or either of them have against the said Comer Bros., growing out of or in any way connected with the said purchase of said cattle from said Comer Bros., I, J. S. Bilby, fully release and discharge him, the said T. J. Hysham, and' the said C. J. Hysham from any and all liability by reason of each, all and every of the foregoing matters and things, and release him, the said T. J. Hysham and the said O. J. Hysham from any and All liability in any way connected with or growing out of the aforesaid matters. And I will indemnify, protect and save harmless the said T. J. Hysham and the said C. J. Hysham from paying any further sum to any person or persons whatsoever, on account of any or all the matters set forth in this contract.</p> <p>“But it is expressly and specifically understood in the execution and delivery of this paper that I do not relinquish or release any action or causes of action that I may now or hereafter have against him, the said J. L. Carey, or them, the said Comer Bros., or either of them by reason of any of the matters or things hereinbefore recited, expressly and specifically reserve to myself the right to maintain in said action or actions against him, the said J. L. Carey, or them, the said Comer Bros., or either or all of them by reason •of said matters and things or any of them that I now have or may hereafter have.</p> <p>“Signed this second day of August 1898. John S. Bilby.”</p> <p>The trial below resulted in a verdict in favor of the plaintiffs in case No. 1,929 for the sum of $2,229 and in a verdict in favor of the plaintiffs in ease No. 1,930 for the sum of $771, on which verdicts judgments were subsequently entered. The defendant below has brought the cases to this court on writs of error.</p>

<p>1. Insurance Policy — Fraud—Remedy at Law before Loss-Jurisdiction in Equity.</p> <p>Before a loss under a policy of insurance, the company which issued it has no adequate remedy at law for fraud, false representations, or concealments which procured its issue, and a federal court has jurisdiction in equity of a suit for the surrender and cancellation of the policy.</p> <p>2. Same — Remedy at Law after Loss.</p> <p>After a loss under a policy of insurance, the company which issued it ordinarily has an adequate remedy at law for fraud, false representations, or false concealments which procured its issue by presenting them as a defense to any action that may be brought upon the policy, so that a suit in equity for its surrender and cancellation, commenced after the loss, cannot be maintained in the federal courts in the absence of special facts or circumstances invoking jurisdiction in equity.</p> <p>3. Same.</p> <p>The fact that the action at law on the policy will be brought in a state court does not render the remedy of the company at law in the federal court so inadequate that a suit in equity to avoid the policy, commenced after the loss, may be maintained, where the company has the right to remove the action at law from the state to the federal court.</p> <p>4. Same.</p> <p>Nor does the fact that the license of the company to do business in the state in which the action at law is to be commenced will be revoked if the company removes that action to a federal court render its remedy at law in the federal court so inadequate as to give that court jurisdiction in equity of a suit to cancel the policy.</p> <p>(Syllabus by the Judge.)</p> <p>If 1. See Cancellation of Instruments, vol. 8, Cent. Dig. § 13.</p>

This cause comes here upon appeal from a decree of the district court, Southern District of New York, awarding to Neal, as owner of the tug Somers N. Smith, and to the American Salvage Company, which had a crew on board said tug, the sum of $6,500 salvage for pulling the schooner Edith L. Allen off the .eastern edge of Brigantine Shoal, on the coast of New Jersey, and towing her to the port of New York.

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p>

<p>L Patents — Anticipation—Infringement—Electric Motors.</p> <p>The Tesla patents, Nos. 511,559 and 511,560, the former covering a method, and the latter certain apparatus or means of operating electric motors by means of alternating currents from a single original source known as the “split-phase” system, held not anticipated by the publication in Milan of a lecture by Prof. Galileo Farraris April 22, 1888, on evidence which clearly and satisfactorily carries the invention back to September, 1887. Such patents also held valid, and both claims of the former and. claims 1 and 2 of the latter infringed by the Gutmann recording watt meter.</p> <p>2. Same — Suit fob Infringement — Pasties.</p> <p>An agent is not properly joined with his principal as a defendant in a suit for infringement because of acts done in his capacity as such agent, in the absence of special circumstances.</p> <p>3. Same — Defenses.</p> <p>It is not a defense to a suit for infringement against a user that a decree has previously been obtained against the maker, from whom the defendant bought the infringing article.</p> <p>If 2. See Patents, vol. 38, Cent. Dig. §§ 459, 471.</p>

<p>1. Collision — Damages—Findings oe Commissioner.</p> <p>The finding of a commissioner as to the value of a vessel sunk in collision, made on conflicting evidence, will not be disturbed unless error or mistake is clearly apparent.</p> <p>2. Same — Suit against United States — Interest.</p> <p>A court of admiralty, in a suit brought against the United States, under a special act of Congress, to recover damages for the loss of a British vessel through collision with a naval vessel, has no authority to allow interest as a part of such damages, where the special act is silent on the subject; the general rule being that interest is not recoverable against the government, and such being the statutory rule governing suits in the court of claims.</p> <p>11. See Collision, vol. 10, Cent. Dig. § 306.</p>

<p>1. Marine Insurance — Unseaworthiness—New Trial.</p> <p>Where, in an action on a marine policy, a new trial was granted after verdict in favor of plaintiff on the uncontradicted testimony of two witnesses who testified that after the loss they made an examination by boring through the vessel’s waterways into the ends of the beams between the main and fore masts, and found no solid wood, but only mud and dirty wood, and .on the second trial such evidence was again introduced, and there was no other evidence offered tending to obviate its effect, a second verdict in favor of plaintiff should be set aside, and a new trial ordered.</p>

<p>1. Bankruptcy — Constables—Levy—Surplus—Payment.</p> <p>A constable, after having sold a debtor’s property on execution, returned tbe execution as satisfied, and alleged that be bad returned tbe surplus to tbe purchaser at tbe sale. The debtor having become bankrupt, bis trustee demanded such surplus. Tbe constable, on being cited to show cause why be should not pay tbe money, testified that be bad never received the same. Held, that if he sold the property on credit, or failed to collect the amount bid, be was prima facie liable for tbe surplus to tbe execution debtor, and was therefore properly adjudged to pay tbe same to tbe trustee.</p>

<p>1. Army and Navy — Enlistment of Minors — Necessity or Parents’ Consent.</p> <p>Under the laws of the United States a minor cannot lawfully be enlisted in any branch of the military or naval service without the consent of his parents, and one who has so enlisted by misrepresenting his age will be discharged by writ of habeas corpus at suit of his parents.</p> <p>2. Same — Discharge on Habeas Corpus — Jurisdiction or Civil Court First Attaching.</p> <p>Where a petition for habeas corpus for the discharge of a minor from the military service on the ground that he enlisted without the consent of his parents has been served, the court is not deprived of jurisdiction to discharge the minor by his subsequent arrest by the military authorities on the charge of fraudulent enlistment.</p>

<p>1. Lands — Entey—Fraud—Pleading.</p> <p>A bill by the United States alleged that public land in controversy had been entered by certain persons, acting in collusion with defendant C., for the purpose of obtaining title to the land and conveying the same to defendants; that the entries were made by fraud and misrepresentation, to which C. was a party; that C. acted for himself and the other defendant, who well knew, at the time the land was conveyed to him by C., all the facts constituting the fraud, and that the land had been entered in violation of the laws of Congress, and that the entrymen had entered the same for hire, on speculation, for the purpose of enabling defendants to obtain title in violation of the laws of Congress. Held, that such bill stated a sufficient cause of action against both defendants.</p> <p>2. Same — Paeties.</p> <p>The entrymen by whom the land had been conveyed to defendants before patents issued were not necessary parties to the bill.</p> <p>3. Same — Multifabiousness.</p> <p>Where several entrymen on public land conspired with defendant C. to make their entries for the benefit of C. and his codefendant, to whom the land was subsequently conveyed, a bill to set aside such entries as fraudulent was not multifarious in thaft each of such entries was a separate transaction.</p>

<p>1. Decree Peo Confesso — Vacation.</p> <p>Where a bill was taken pro confesso on demurrers being treated as Insufficient for failure of the parties to make the affidavit required by equity rule 31, but no final decree could have been entered in favor of the complainants until one of the defendants who had not been served had been brought in, and defendants’ failure to have the demurrer verified was the result of a mistake caused by lack of knowledge as to the proper mode of procedure in equity, defendants, on presenting answers on the merits, should be entitled to have the decree pro confesso vacated on payment of the costs of the suit to- the date of their application.</p>

<p>1. Pleading — Sufficiency of Declaration — BIotion for Judgment.</p> <p>A plaintiff is not entitled to judgment on the pleadings for the price of articles which plaintiff was to manufacture and deliver to defendant, where it appears from the face of the letters alleged to constitute the contract, which are set out, that the price was not to be due until a certain time after the articles were delivered, and it does not appear that they ever were so delivered.</p>

<p>1. Indians — Allotted Lands — Crimes—State Court — Jurisdiction.</p> <p>Where land was allotted to an Indian under Act Cong. Oct 1, 1890 (26 Stat 658), providing for the reduction of the Round Valley Indian Reservation, and authorizing the agricultural lands therein to be surveyed and allotted to Indians residing thereon in severalty, such allotment did not operate to exclude the land from the reservation so as to confer jurisdiction on the courts of the state in which it was located to prosecute the allottee for a violation of the state’s game laws committed on the land allotted to him.</p>

<p>1. Contracts — Defense of Agency.</p> <p>Defendant, to sustain the defense against his contract with plaintiff that he was acting as agent, must prove that he disclosed the name of his principal. It is not enough that plaintiff supposed he was acting for some one not disclosed.</p> <p>If 1. See Principal and Agent, vol. 40, Cent. Dig. §§ 501, 522.</p>

<p>1. Customs Duties — Classification—Refined Cocoanut Oil — Cocoa-ButTEBINE.</p> <p>As to certain cocoanut oil of the melting point of 70° to 75° F., which has been purified and rendered suitable for culinary purposes and the manufacture of high-grade soaps, and which is not susceptible of the same uses as cocoa-butter, held, that the article is not subject to duty as “cocoa-butterine,” under paragraph 282, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652], but is free of duty under paragraph 626 of said act (section 2, Free List, 30 Stat. 199 LU. S. Comp. St 1901, p. 1685]) as cocoanut oil.</p> <p>2. Same— Cocoa-Buttebine.</p> <p>Cocoa-butterine, as provided for in paragraph 282, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652], consists óf products made in imitation of cocoa-butter, and adapted for use as a substitute therefor.</p>

<p>L Shipping — Demurrage—Liability of Consignee.</p> <p>Where a consignee is interested in the cargo, and accepts it under a charter party made between the vessel and the consignor which provides for demurrage, he is liable therefor in case of his default.</p> <p>% Same — Bills of Lading.</p> <p>Where a part of the freight had been paid by the consignor, and the consignee was required by the charter party to pay the balance, a provision in the bill of lading requiring the consignee to pay freight at the rate agreed on, in accordance with the terms of the charter party, referred to freight alone, and did not obligate the consignee to pay demur-rage.</p> <p>S. Same — Failure to Accept Cargo.</p> <p>Where, though a consignee was not liable for demurrage under the bill of lading or charter party, he improperly refused to take part of the cargo within a reasonable time after arrival, he thereby became liable for damages arising from the delay.</p> <p>f 1. Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 G. C. A. 4</p> <p>See Shipping, vol. 44,. Cent. Dig. § 571.</p>

<p>1. Appeal — Assignment of Errors — Filing Before Allowance of Appeal Indispensable.</p> <p>The filing of an assignment of errors before or at the time of the allowance of an appeal is indispensable, under the eleventh tule of the Circuit Courts of Appeals (91 Fed. vi, 82 C. C. A. lxxxviii), and the appeal will be dismissed if the assignment is not thus filed.</p> <p>2. Same — Conditional Allowance.</p> <p>An allowance of an appeal on condition that the petitioner give a bond in a fixed amount does not become an allowance of the appeal until the bond is given and accepted, and the filing of an assignment of errors before or at the time of the giving and acceptance of the bond is a filing within the time prescribed by the rule.</p> <p>S. Appeal Matter of Right — Allowance of Writ of Error Matter for Judicial Determination. ,</p> <p>An appeal is a matter of right, secured by act of Congress upon compliance with the statutes relative to security and with the rules of the courts.</p> <p>The allowance of a writ of error is a matter for judicial determination upon a consideration of the sufficiency of the grounds for the writ stated in the petition and assignment of errors.</p> <p>The reason for the rule requiring the filing of an assignment of errors before the allowance of an appeal is to give notice to opposing counsel and the appellate court of the questions of law to be discussed. In an action at law there is the additional reason that the presentation of an assignment of errors to the judge who allows or issues a writ of error is essential to his decision of the question whether or not it should be issued.</p> <p>4. Evidence — Account—Each Side Prima Facie Evidence of its Contents.</p> <p>The introduction in evidence without qualification of an account containing debit and credit items makes each side evidence of its contents.</p> <p>In the absence of all other evidence, the debits and credits of such an account offset each other, and the account proves its balance only. An admission must be taken with its qualifications as an entirety.</p> <p>But where there is other evidence the court or jury is not required to give equal credit to each side of the account, to the admissions against interest, and to the self-serving statements contained in it. They may, and they should, determine the fact for or against the evidence contained in the account as the preponderance of all the evidence in the case and the rules of law require.</p> <p>(Syllabus by the Court.)</p>

This is a writ of error, directed to the Circuit Court for the District of Montana, to review an order of that court adjudging E. Augustus Heinze, Josiah H. Trerise, and Alfred Frank guilty of contempt of court, In violating an order of the court permitting the inspection and survey of certain premises mentioned and described in the order.

<p>1. Gift — Intention of Donor — Renunciation of Dominion — Delivery.</p> <p>A fixed intention by the donor to irrevocably divest himself of title, dominion, and control of the subject of the gift at the very time he attempts to make it, the actual accomplishment of that purpose, and the delivery of the subject of the gift, are indispensable conditions of a valid donation.</p> <p>2. Same — Corporate Stock — Delivery of Certificates.</p> <p>The delivery of the subject of the gift must be made in the most effectual mode to command dominion over it.</p> <p>The delivery of certificates of shares of stock, when they are present and their delivery is practicable, is indispensable to a valid gift of stock in a corporation, because the possession of the certificates commands the dominion of the stock in the most effectual way.</p> <p>3. Same — Delivery of Written Assignment — Effect.</p> <p>The delivery of a written assignment of stock in a corporation is ineffectual to make a valid gift, while the donor retains the certificates.</p> <p>4. Same — Evidence—Conclusions.</p> <p>G., the owner of 110 shares of stock in a corporation, delivered a written assignment of his interest in its business to his wife in May, 1899, when he was free from debt. He retained the certificates of the shares, voted them, and received dividends upon them, in money and in stock, until February, 1903, when he had become heavily involved in debt. He then transferred the stock to his wife by an indorsement and surrender of the certificates to the corporation.</p> <p>Held, G. had no intention in May, 1899, to then divest himself of the dominion and control of the stock, a delivery of the certificates of the stock was indispensable to accomplish such a purpose, and the delivery of the written assignment, while the donor retained and used the certificates to control the stock, was insufficient to complete a valid gift.</p> <p>If 2. See Gifts, vol. 24, Cent. Dig. § 50.</p> <p>5. Garnishment — Order on Garnishee to Deliver into Court.</p> <p>Under the statutes of Arkansas, where the garnishee appears by affidavit, and does not appear in person, or submit to an examination, or make default, the plaintiff is not entitled to an order that the garnishee shall deliver the property of the defendant in his possession, or that he shall pay the money which he owes the defendant, into court. His remedy is by compelling an examination under oath, or by an action under section 360, Sand. & H. Dig.</p> <p>{Syllabus by the Court.)</p>

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

<p>1. COBPOEATIONS — RAILROADS—PREFERRED STOCK — RETIREMENT—CONVERSION.</p> <p>Laws Wis. 1895, c. 244, p. 475, chartered the Northern Pacific Railway Company, and authorized it to classify its stock into common and preferred, and to make such preferred stock convertible into common, on such terms and conditions as might be fixed by the board of directors. The act also authorized the company to borrow from time to time such sums of money and on such terms as the corporation or its board of directors should agree, and in its corporate name to execute evidences of indebtedness, and make the same convertible into its capital stock of any class upon such terms and conditions as its board of directors deemed advisable. Held, that the corporation, under such provisions of its charter, had authority to issue certificates of indebtedness with which to retire the preferred stock, and to immediately convert such certificates into common stock.</p> <p>2. Same — Ratification.</p> <p>The certificates of indebtedness having been issued under express statutory authority conferred by Laws Wis. 1895, p. 475, c. 244, § 11, the conversion, even if not originally authorized, was subsequently confirmed by Laws Wis. 1897, p. 632, c. 294, and Laws Wis. 1899, p. 296, c. 193, authorizing the consolidation of railroad companies, validating agreements on which their stocks had been issued, together with their plans of reorganization, etc.</p> <p>3. Same — Reduction and Increase of Stock.</p> <p>Where a corporation issued certificates of indebtedness with which to retire its preferred stock, and immediately thereafter converted such certificates into common stock, such transaction should be considered as a whole, and hence the issuance of the certificates and retirement of the preferred stock did not operate as a reduction of capital, nor the issuance of such additional common stock as an increase thereof.</p> <p>4. Same — Rights of Stockholders.</p> <p>Where a corporation issued certificates of indebtedness with which to retire its preferred stock, for which the holders of the common stock were entitled to subscribe, a common stockholder could not object that the transaction was invalid on the ground that the preferred stockholders were not entitled to share therein.</p> <p>5. Same — Preferred Stock — Stockholders’ Rights.</p> <p>Where, at the time of the reorganization of a railroad company, preferred stock was issued under a resolution of the stockholders on the express condition that the company, at its option, might retire the same at its election on certain dates, and each certificate contained a recital of such condition, each preferred stockholder acquired his stock subject to the terms of an express contract which denied him the right to share in new stock issued as a part of a scheme for the retirement of such preferred stock, and that when his stock was so retired he thereupon became a stranger to the company.</p> <p>6. Same — Actions against Corporation — Parties.</p> <p>Where a stockholder of a corporation brought suit to restrain it from carrying out a scheme to retire its preferred stock and to issue common stock in its place, but the thing primarily complained of was the ownership of a majority of the corporation’s stock by a securities company formed for that purpose, the end sought being the destruction of the securities company’s title to its stock and its status as a stockholder, the securities company is an indispensable party defendant, and is not represented in the suit by the corporation.</p>

This is a suit in equity brought by the appellee to restrain the appellants from proceeding with a certain condemnation suit for the appropriation of lands of the appellee. Affidavits were filed in support of the bill, and counter affidavits in opposition to the application for a temporary injunction. At the hearing an interlocutory decree was entered, granting the injunction prayed for. The case is now before this court on appeal from the interlocutory decree.

<p>1. Telegraphs — Messages—Transmission—Delay—Notification to Sendee— Negligence.</p> <p>Where a mining expert delivered a telegram to defendant telegraph company advising the purchase of certain mining stock, which message he directed to be transmitted to plaintiff and 293 others, who were his clients, under an agreement to transmit the same at once, there being other methods of rapid communication between the sending office and plaintiff’s place of business, it was the duty of the telegraph company, on discovering that it would not be able to transmit such message to plaintiff without delay, by reason of a defect in its wires, to promptly notify the sender of such fact, he being a person well known to the company’s agents at the sending office, and easily accessible.</p> <p>2. Same — Damages.</p> <p>Where a mining expert delivered a message to a telegraph company to be sent to plaintiff, his client, advising the purchase of certain mining stock, which defendant agreed to promptly transmit, but failed to notify either the sender or the addressee that there had been several hours’ delay, by reason of which the addressee was led to purchase the stock at a higher price than he would have been compelled to pay if the message had been promptly delivered before the close of an exchange on the day it was sent, the addressee was entitled to recover the difference between what he had to pay for the stock which he purchased the succeeding day and what the stock would have cost him if the telegram had been transmitted within a reasonable time after it was received for transmission.</p> <p>j[ 1. Delay in delivery of telegram, failure to disclose that line was not in working order, see note to Pacific Postal Telegraph Cable Go. v. Fleischner, 14 C. C. A. 177.</p> <p>f 2. Measure of damages in actions against telegraph companies, see notes to Western Union Telegraph Co. v. Coggin, 15 C. C. A. 235; Same v. Morris, 28 C. C. A. 59.</p> <p>See Telegraphs and Telephones, vol. 45, Cent. Dig. § 72.</p>

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

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

<p>1. Master and Servant — Injuries to Servant — Mines—Evidence—Self-Serving Statements.</p> <p>Where, in an action for injuries to a miner, negligence was alleged, in that defendant failed to promulgate and enforce a rule that the trapdoors at the top of the shaft should be closed when the hoist bucket was being unloaded at that place, evidence of defendant’s son that the superintendent of the mine was directed to instruct the empioyés that such doors should be closed at such times, offered in support of the testimony of plaintiff’s fellow servant, who alone testified that instructions concerning the closing of such doors had been actually given to the empioyés, is inadmissible, as being of a self-serving character.</p> <p>2. Trial — Argument to Jury — Misconduct of Counsel — Curing Error.</p> <p>Where, on the attention of the court being called to misconduct of plaintiff’s counsel in making a certain argument to the jury, which was not supported by the evidence, the court promptly sustained the objection, and directed the jury to disregard such improper statement, the error was cured.</p> <p>3. Fellow Servant — Incompetency—Superior Servant — Notice.</p> <p>Where a shift boss in a mine had no power to hire or discharge the workmen under him, but was merely a fellow servant of plaintiff of a superior grade or class, the fact that he had power to temporarily suspend workmen did not render him a vice principal, so as to charge the master with the knowledge of such shift boss as to the incompetency of a fellow servant, by whose negligence plaintiff was injured.</p>

<p>1. Appeal — Interlocutory Oedees Made in Receivership.</p> <p>Neither an order of a Circuit Court approving monthly reports of a receiver, nor one directing him to' pay expenses incurred by him, made before the coming in of his final account, is a final order, appealable to the Circuit Court of Appeals; both being clearly interlocutory orders, directly and not collaterally connected with the receivership, and subject to review on final settlement of the receiver’s account.</p> <p>il 1. What decrees are final, see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379.</p>

This action was brought in the state circuit court of Shelby county, Tenn., and removed into the Circuit Court of the United States for the Western District of Tennessee. The object of the suit was to recover damages for the destruction by fire of the cotton seed house or warehouse of plaintiff in error, situated on land adjoining the right of way of defendant in error at the station and village of Clarketon, Ark.

<p>1. Telegraphs — Fraudulent Messages — Parties.</p> <p>Plaintiffs, dealers in live stock, were negotiating a sale of cattle to B., and, pending the negotiations, a fraudulent telegraph message, purporting to have been sent by the Bank of D., was received by the Commercial Bank of B., alleged to have been plaintiffs’ agent for the purpose of receiving an assurance that B.’s check for the cattle would'be paid on presentation; stating that the Bank of D. would honor B.’s draft for a certain amount. The Commercial Bank exhibited the telegram to plaintiffs, who, relying on the genuineness thereof, accepted B.’s check, and delivered the cattle. The check was not paid, B. proved to be insolvent, and the transaction resulted in a loss to plaintiffs of the entire value of the cattle. Sold, in an action against the telegraph company for negligence in sending the same, an instruction based on the theory that it was permissible for the jury to say and to find that the telegraph company was fairly charged by the language of the telegram with notice that some one other than the addressee was intending to act on' the information therein given, and would be affected by it, so as to take the telegram out of the well-recognized rule that a telegraph company cannot be liable to a stranger to the company and to the telegram, was erroneous.</p>

Arrighi, the plaintiff below, was a switchman in the service of the railroad company in its yards at Salida, Colo. The railroad company was a common carrier engaged in interstate commerce as well as in commerce within the state. On the evening of November 19, 1901, Arrighi was injured while endeavoring to effect a coupling of two narrow-gauge freight cars, one of which was at the time employed in moving interstate traffic.

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

Appeal' from the District Court of the United States for the Western District of Missouri. This is an appeal by a creditor from an order granting a discharge to a bankrupt On June 19, 1902, Sehophofen was adjudged a bankrupt upon the petition of Van Ingen & Co., one of his creditors.

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

<p>Appeal from the Circuit Court of the United States for the Southern District of Texas.</p> <p>A bill was filed in the Circuit Court for the Eastern District of Texas by the Rembert Roller Compress Company, a Texas corporation, against the American Cotton Company, a New Jersey corporation, having its principal office in the state and city of New York, and doing business in the Eastern District of Texas under a permit from the state of Texas, and against the Wharton Gin & Milling Company, a Texas corporation, having its place of business in the Eastern District of Texas (it being alleged that the Wharton Gin & Milling Company is the agent of the American Cotton Company, conducting in part the business of the American Cotton Company in the county and town of Wharton, in the Eastern District of Texas), and against R. H. .Houston, president of the Wharton Gin & Milling Co. The purpose of the bill is to restrain the defendants from infringing letters patent No. 441,022, issued to Henry Rembert on the 18th day of November, 1890, and assigned by said Rembert to the Rembert Roller Compress Company. The patent set up in the bill is a process patent. The object of the method so patented is to gin, condense, and bale cotton in one continuous operation, and so effectually to reduce the size of the resulting bale of cotton in the first original initial process as to make it of suitable dimensions and density for market, or for transportation by rail or sea to final destination. This patent contains a description of an apparatus which the patentee says is considered “best adapted for carrying out the patented process under certain conditions mentioned in connection with the apparatus,” but “it is to be distinctly understood that this apparatus is not the essence of the present invention,” and that the method herein claimed may be carried into effect by various other mechanisms, which will suggest themselves to the skilled mechanic as equivalents of the one described. The precise claim of the complainant as to this process patent can be gathered from an extract from the bill, as follows:</p> <p>“Heretofore the usual method of handling and baling cotton practiced in the Southern States has been as follows: The cotton fiber, when it comes from the field of production, is first passed through the gin and the condenser, and from the latter it is carried to an ordinary ‘country’ or ‘plantation’ press, where it is pressed and baled. The bales formed by these ‘plantation presses,’ as they are termed, are very large and bulky, and therefore require considerable space for storage, and greatly increase the cost of transportation. The bales, after being formed, are then transported to a compress located at some concentrating point, where they are subjected to a very heavy pressure, sufficient to reduce their size and increase their density to the required ‘standard’ fixed by the railroad companies, boards of trade, and others, after which they are ready for shipment, by rail or otherwise, to the manufacturers. This method of handling and baling the cotton had many disadvantages and drawbacks. In the first place, the usual method of handling the loose cotton in the ginnery establishment, previous to being baled, causes the atmosphere of the building to be completely filled with floating fiber finely comminuted, which dust not only stifles and interferes with the attendants, but also greatly increases the danger and risk of a conflagration, and thereby increases the cost of the fire insurance. It also necessitates the employment of a number of attendants, which materially lessens the profits of the producer. The bales, when they come from the first pressing operation, are necessarily large and bulky, and low in density, inasmuch as the ordinary plantation or country presses are not adapted for heavy pressing, and for that reason are not only difficult to handle and require a large storing space for their keeping, but also greatly increase the cost of transportation from the ginning establishment to the compress, which is often located a long distance from the ginning point; but probably the most serious drawback attendant upon the use of the foregoing manner of handling cotton is the great cost of building and maintaining the powerful hydraulic and steam compresses required for compressing the bales before they are shipped to the manufacturer, and the expense to which the producer is put in having the bales thus compressed. To reduce the bales to the standard size and density required by the trade, these presses are necessarily large and expensive, not only in building but in maintaining them in operation, as is evident. By this invention of Henry Rembert are obviated the main difficulties in the manner of handling and baling cotton heretofore in vogue, and substitute therefor a simple and inexpensive method, that may be carried out in the ginning establishment without the employment of costly labor and powerful compresses, and by means of which the cotton is not subjected to unnecessary handling or exposure, but by a continuous process is formed into bales of a size and density that will equal the standard compressed bales. This method may be carried out and operated by means of the same power that operates the ginning mechanism, and from this fact it derives one of its chief advantages.”</p> <p>The bill then states the claims made by Henry Rembert in his patent, which are as follows:</p> <p>“(1) The method of baling cotton, which consists in compressing the same progressively, accumulating the compressed fiber previous to its expansion in the form of a bale, applying the pressure to expel the air, and finally tying the bale, substantially as specified.</p> <p>“(2) The method of baling cotton, consisting in compressing the same in the form of a continuous sheet, lapping said sheet before it has had time to expand in the form of a bale, and subsequently applying pressure to expel the air from between the layers, substantially as specified.</p> <p>“(3) The method of baling cotton, which consists in condensing the same in the form of a continuous soft bat, compressing the same progressively, accumulating the compressed fiber previous to its expansion in the form of a bale, applying pressure to expel the air, and finally tying the bale, substantially as specified.”</p> <p>The allegations of the bill show that exactly what Henry Rembert claims to have discovered was that the elasticity, or tendency to expand, in cotton, can be suspended for an interval; that cotton can be compressed to a point just short of crushing and injuring the fiber, so that it will retain its density, when so compressed in detail, that it can be baled, and, when so baled, be a compressed bale. It is claimed that Henry Rembert found a bat of cotton which had been run over by a train on a railroad track, and discovered that, while the wheel passing over the cotton on top of the rail crushed the fiber, the flanges of the wheel compressed a part of the bat to a point just short of injuring the fiber, and then or thereafter resulted his intellectual conception of the use of the discovery, which it is said he then made. The practical use of this alleged discovery was, as shown by the extract from the bill, to compress finally at the gin, and thereby obviate the expense and trouble of making the old-fashioned plantation bale of cotton at the gin, and then transporting it to the compress, and having it there compressed, so as to be of sufficient density for commercial use for shipping by rail and by sea. The bill then alleges infringement on the part of the American Cotton Company and the Wharton Gin & Milling Company, and prays for an injunction and accounting.</p> <p>There was a demurrer to the bill, which demurrer was overruled, and the bill was answered by the American Cotton Company and the Wharton Gin & Milling Company: In the answer the defendants admit the issuance of the letters patent to Henry Rembert for an alleged method of invention of baling cotton, but deny that he is the original and first inventor of the alleged method or invention as set forth in his bill. It is also admitted that the letters patent and the invention set forth therein have relation to an alleged method of baling cotton, and that said alleged method is adapted to be practiced at the point of ginning, to form a continuous process of ginning; but it is stated that defendants are not informed, save by complainant’s bill, that the object of said alleged method is to gin, condense, and bale the cotton in one continuous operation, and so effectually to reduce the size of the resulting bale of cotton in this first original initial process as to make it of suitable dimensions and density for market or transportation by rail or sea to final destination, and they therefore deny the allegation in the bill in this behalf, and leave the complainant to make proof thereof. The defendaurs deny the alleged discovery of a “law of nature,” and they deny that the elasticity of cotton can be suspended, and utmost density short of crushing its fiber obtained in detail, before baling. They also deny that the letters patent in suit embrace the conception of a new property in cotton, by which it remains compressed, and so retains its density when compressed in detail. They also deny that, when cotton is compressed as set forth in said letters patent, it can be baled, and, when baled, is a compressed bale. They also deny that the alleged invention of Rembert obviated the main difficulties in the manner of handling and' baling cotton in vogue prior to said application, and substantially they deny that by Rembert’s alleged invention a simple method was discovered of baling and compressing cotton by one continuous operation at the point of ginning, thereby saving two operations, viz., the ginning and forming into a plantation bale at the gin, and then transportation to another point and compression there. The defendants in their answer then deny that Henry Rembert was the true original and first inventor of the alleged method or process of baling cotton to which the letters patent No. 441,022 relate, and on information and belief allege that, long before any invention or discovery made by Rembert, the same and substantial and material parts thereof had been invented, and had been known to and used by others in this country, and had been in public use or on sale in the United States for more than two years prior to the daté of the application for said letters patent. The names and places of residence of persons who had such prior knowledge, and by whom the same was publicly used or sold, are then given. The defendants, further answering on information and belief, say that the letters patent issued to Henry Rembert are invalid and void, because” the alleged invention therein set forth and claimed, or material and substantial parts thereof, had prior to any alleged invention or discovery thereof by Henry Rembert been patented and been described in printed publications in the United States and foreign countries. It then sets out a number of patents, antedating that of Henry Rembert, issued by the United States Patent Office, and two issued in Great Britain. The defendants deny any infringement on the part of the American Cotton Company or the Wharton Gin & Milling Company.</p> <p>In effect, the pleadings here raise, so far as we deem it material to consider them, issues as to the patentability of Rembert’s alleged discovery on the ground that the same lacks novelty and utility as to the prior art, and as to whether Rembert’s patent is infringed by the process or method in use by the American Cotton Company and the Wharton Gin & Milling Company. A large amount of testimony was taken, and the case heard upon the pleadings and proof, and after consideration the court made a final decree dismissing the complainant’s bill. In a brief opinion filed by the judge presiding in the Circuit Court, the following conclusions of law and fact are stated:</p> <p>“Conclusions of Fact. I find, from the facts: First, that the Rembert patent, as it relates to the method of compressing cotton, is without novelty; second, that said patent is without utility; third, that the inventor of the Rembert process is not a pioneer in the art of compressing cotton; fourth, that the method patented by Rembert is without claim to priority; fifth, that the defendants the American Cotton Company and the Wharton Gin & Milling Company are not infringing upon the method or machinery covered by the patent issued to the complainant.</p> <p>“Conclusions of Law. Applying the law to the facts above stated, the bill of complainant should be dismissed, which is accordingly done; the costs to be ascertained and taxed against the complainant.”</p>

<p>1. Patents — Suit for Infringement — Construction of Plea.</p> <p>A plea to a bill for infringement of a patent allegéd that complainant was employed by defendant, a corporation engaged in the manufacture of carbons, as a mechanical engineer, and agreed to give his time, skill, and attention and inventive ability to the service of defendant in and about the cheapening and improving of the process of electroplating, and other processes in the manufacture of carbons; that while so employed, and at defendant’s expense, he made the inventions covered by the patent, which consist of a process and machine for electroplating; that such inventions and improvements “belong” to defendant; that “said defendant is entitled to the perpetual use of the same, and that, by reason of the facts hereinbefore stated, * * * complainant is not entitled to any relief prayed for in said bill of complaint, but that said defendant * * * is entitled and has the right to the perpetual use in its business for its purposes” of said inventions. Held, that such plea should be construed as a plea of license only, which was all that was required to constitute a defense to the bill.</p> <p>2. Same — Infringement—Implied License.</p> <p>Defendant company, which was a manufacturer of carbons, employed complainant as a mechanical engineer on salary; a part of his duty being to devote his time and skill to the improvement and cheapening of the processes of such manufacture, an essential one of which was electroplating. While so employed, complainant invented a valuable process for electroplating, and a machine for carrying out the same, both of which he patented. Under his directions, special buildings were made at defendant’s works to accommodate seven of such machines, six of wliich were built and installed also under his direction, and a seventh was installed after his employment ended. Held, that while defendant did not become the owner of the patent, in the absence of an express agreement to that effect, it had an implied license to use the seven machines, and any replacement of them, together with the patented process, in the manufacture of carbons, so long as it continued in the business.</p> <p>7 2. See Patents, vol. 38, Cent. Dig. §§ 125, 302.</p>

<p>1. Patents — Invention—Combination ob Aggregation of Old Elements.</p> <p>The combination of two known devices in a single device, which results in a new utility by uniting the functions of the two in a single article, may involve invention.</p> <p>2. Same — Infringement—Insulating Turn-Buckle.</p> <p>The Van Depoele patent, No. 394,039, claim 18, for a turn-buckle the body portion of which is composed of insulating material, for use on the span wire in overhead trolley systems, is for a combination which unites the functions of a turn-buckle and an insulator, previously used separately, and discloses invention. Also held infringed.</p> <p>1J1. See Patents, vol. 38, Cent. Dig. § 29.</p>

In Equity. Suit for infringement of letters patent No. 718,130, for feed mechanism for carding machines, granted January 13, 1893, to Harry Kemp. On final hearing.

In Equity. Suit for infringement of letters patent No. 371,496 for an adding machine, granted to D. E. Felt October 11, 1887. On motion for preliminary injunction.

<p>In Equity. Final hearing on pleadings and proofs of a suit for infringement of- United States letters patent No. 574,894, January 12, 1897 (applied for June 2, 1894), to F. P. Ferry, assignor of one-half to Theodore Clark & Co., for hat-packing ring.</p>

In Equity. Suit for infringement of letters patent No. 465,255, for a computing machine, granted to D. E. Felt December 15, 1891. On motion for preliminary injunction.

In Equity. On demurrers to amended bill. This is a bill by minority stockholders of the Ensley Land Company, filed in right of the company, which refused to sue, to set aside certain transactions between the company and the respondents, who it is alleged, while occupying fiduciary relations, defrauded the corporation in the sale of 240 acres of land, of which respondents became purchasers.

<p>In Equity. On motion for preliminary injunction and on demurrer to bill.</p>

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

<p>1. Bankruptcy — Liens—Mortgage for Borrowed Money.</p> <p>A mortgage given by an insolvent, subsequently and within four months adjudged a bankrupt, to secure money borrowed at the time for the purpose of preferring certain of his creditors, where the lender knew or had reason to believe that such was his purpose, is void under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449].</p> <p>2. Same.</p> <p>A trust company, through its agent and attorney, who was also attorney for large creditors of a country merchant doing business at a distance, made a loan to such merchant, with which he at once paid certain creditors in full, including the clients of the agent, who received the money on their behalf directly from the lender. The loan was secured by a chattel mortgage on the borrower’s stock, and on the next day after it was given, in accordance with the previous intention of the lender, it took possession of the stock, and proceeded to sell it out under the mortgage. The borrower was actually insolvent, but no steps were taken by the company or its agent to ascertain his condition. It did not appear that he was a party or consented to the taking possession of his stock, which was not provided for in the mortgage, and there had been no default. He was soon after adjudged a bankrupt. Held, that the transaction was evidently not in good faith, in the belief of the bankrupt’s solvency, or for the purpose of assisting him to continue his business, but was apparently in the interest of the preferred creditors, and that the mortgage was void under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [ü. S. Comp. St. 1901, p. 3449],</p> <p>f 1. See Bankruptcy, vol. 6, Cent. Dig. §§ 256, 257, 259, 261.</p>

In Equity. In the matter of the intervention of the Westinghouse Air Brake Company. Prior to and on the 1st day of April, 1893, there existed the Kansas City, Pittsburg & Gulf Railroad Company, a Missouri corporation, the Texarkana & Ft. Smith Railway Company, an Arkansas corporation, and the Kansas City, Shreveport & Gulf Railway Company, a corporation of the states of Louisiana and Texas, respectively. The stock of said Texarkana & Ft.

<p>In Admiralty. Cross-libels to recover damages for injuries caused by a collision between the steamboat Capital City, an American vessel, owned by the S. Willey Steamship & Navigation Company, and the steamboat Trader, a British vessel, owned by C. S. Baxter and F. W. Vincent. Hearing on the merits. Both vessels found to be in fault, and damages divided.</p> <p>This litigation was initiated by a suit in rem in behalf of the S. Willey Steamship & Navigation Company, owner of the steamboat Capital City, against the British steamboat Trader, registered at the port of Victoria, B. C., to recover damages for an injury to the Capital City, and for loss of cargo and baggage of passengers and personal effects of members of her crew, caused by a collision between the two vessels, which occurred on the 28th day of October, 1902, on Puget Sound, off Dash Point, about four miles northward from Tacoma, by which the Capital City was so badly injured that it was necessary to run her on the beach to save the lives of the passengers and crew on board. Said libel was filed the next day after the collision, while the Capital City was sunk, and supposed to be a complete wreck, and the amount of damages claimed was $40,000. After the Trader had been taken into the custody of the United States marshal, her owners appeared as claimants, and filed a petition for limitation of liability in accordance with the laws of the United States, and thereupon the Trader was appraised, and a bond for her appraised value was filed in the case, after which she was released from custody. The Capital City having been raised, and taken to a dock for repairs, an amended libel was filed, in which the amount of damages claimed was reduced to $8,500. On December 29, 1902, the owners of the Trader commenced an independent suit in rem against the Capital City to recover $5,000 damages for alleged injuries to the Trader caused by the collision. On the same day, December 29, 1902, a stipulation, signed in behalf of the respective owners of the two vessels, was filed in the suit of Baxter and Vincent against the Capital City, whereby the parties agreed as follows:</p> <p>“It is hereby stipulated and agreed by and between the proctors for all parties in interest:</p> <p>“First. That the causes and matters of all kinds and nature whatsoever in any wise comprised or included in the above-entitled matters shall be consolidated and by the above-entitled court heard as of one case.</p> <p>“Second. That all evidence taken in any of such causes upon the behalf of any party thereto, whether heretofore appearing or hereafter to appear, shall be considered in all of said causes, and have the same force and effect, as though separately taken in each ease.</p> <p>“Third. That Honorable Samuel D. Bridges be appointed by the judge of the above-entitled court as court commissioner to take evidence therein, and all of the evidence heretofore taken or hereafter to be taken before said commissioner be considered as having been taken in each, every, and all of said causes.</p> <p>“Fourth. That this stipulation is entered into to avoid costs, expense, and delay, and the same is considered a full and sufficient consideration and cause thereof on behalf of every party hereto, and on behalf of any party or parties hereinafter in any of these causes appearing or making claim.</p> <p>“Fifth. That any party or parties claiming or pretending to claim to have any interest or right by reason, of the collision of the steamers Capital City and Trader out of which the above causes arose may appear in any one of said causes, or either of them, and such appearance shall be considered an appearance in each and all thereof, one appearance only as to all of said causes from this time forth being required, and such intervening parties to have every right by reason of such appearance as though separate appearances were made in all three causes.</p> <p>“Sixth. That the above-entitled court make its order, forthwith directing a monition to issue in the matter of the limitation of liability, and appointing the said Samuel Bridges as commissioner of said court to take testimony thereunder; and that thereupon the said causes proceed to a final hearing as soon as may be convenient and possible upon the part of the parties hereto.</p> <p>“Seventh. That this stipulation be filed, and an order be entered accordingly, and that all parties hereafter appearing or intervening in this cause have the benefit hereof, reserving all questions under petition for limitation of liability.”</p> <p>On the 23d day of January, 1903, Francis Rotch appeared in the original suit, in response to the petition for limitation of liability, and filed an intervening libel to recover, on the bond filed by the owners of the Trader, the alleged value of merchandise and baggage, and personal effects of a number of shippers and passengers, and members of the crew, alleged to have been on board the Capital City, and to have been lost or damaged in consequence of the collision, and alleged that the owners thereof had assigned their claims to him.</p> <p>In accordance with the stipulation above referred to, the several causes were consolidated, and evidence in behalf of each and all of the litigants has been taken and reported to the court by a commissioner appointed for that purpose.</p> <p>The pleadings upon which the cause has been submitted to the court consist of the amended libel of the S. Willey Steamship & Navigation Company, the answer of Baxter and Vincent to said amended libel, the petition of Baxter and Vincent under the limited liability statutes, a claim in behalf of the original libelant in response to the petition for limitation of liability, a claim in behalf of Francis Rotch in response to said petition for limitation of liability, the libel of Baxter and Vincent against the Capital City, an answer to said libel of the owner of the Capital City, the intervening libel of Francis Rotch, and an answer to said intervening libel of Baxter and Vincent.</p> <p>In this mass of pleadings there are many repetitions, but the issues are few and simple. Against the Trader, the charge is made that she was solely in fault, because (a) she did not have the regulation lights, or, if her lights were burning, they were so defective and dim as to be invisible until the two steamers approached so near to each other that the collision could not be avoided; (b) the Trader signaled for a starboard passing when the positions and courses of the two vessels were such that they should have passed port side to port side, and no signal to apprise the Capital City of her presence was given by the Trader at 'the proper time; (c) her commander “did not properly direct the course and movement” of the Trader. This general charge, and the specifications thereof, are all denied. Against the Capital City, it is alleged that she was solely in fault, for the reason that when the two vessels were one mile distant from each other, and in such positions that the Capital City showed only her green light and her masthead light to the Trader, a signal for a starboard passing was given by the Trader, to which the Capital City failed to make response, and later, when the distance between the two vessels was at least one-half of a mile, and the Capital City was still showing her green light, and not her red light, to the Trader, the signal for a starboard passing was repeated by two blasts of the Trader’s whistle, to which the Capital City immediately responded by two blasts of her whistle, and when the vessels were very near to each other, and the Capital City running at a high rate of speed — at least 12 knots per hour — said steamer, without giving any warning of intention to change her course, suddenly turned on a port helm, in such a manner as to swing across the bow of the Trader, and the collision occurred, notwithstanding the fact that the Trader’s engine was immediatély reversed, and commenced working full speed astern. This charge, and the specifications thereof, are also denied. The amounts of the losses alleged in the intervening libel of Rotch, and the several assignments to him, were put in issue by the answer to said libel.</p> <p>As part of the proceedings under the petition for limitation of liability, the court appointed a commissioner to whom all claims against the Trader for damages growing out of said collision should be presented, and directed said commissioner to take evidence to prove such claims as might be presented, and to report to the court the amount of each of such claims. Said commissioner has made a report containing a schedule of claims for merchandise lost or damaged, amounting in the aggregate to $419,61, and a schedule of claims for the personal effects of employés of the Capital City, amounting in the aggregate to $410.50, and it appears from said report that the amounts claimed as set forth in said schedules were not contested, but were admitted. Said commissioner’s report also shows that the claim of the S. Willey Steamship & Navigation Company, amounting to $8,500, was also presented, and it was not contested. The commissioner, however, did not assume to make any findings as to the liability of either of the parties with respect to said claims.</p>

In Equity. The following is the agreed statement of facts: It is hereby stipulated and agreed by and between Messrs. Reid & Meade, solicitors for complainant, George Bird, and Edward E. Cushman, Assistant United States Attorney, and attorney for defendant, Frank Terry, that the following are material facts which could be proven under the issues, and that they are hereby stipulated to be the controlling facts in this case.

In Bankruptcy. On certificate from referee. Held: “While an assignment for the benefit of creditors, executed within the four-months period, is an act of bankruptcy, yet, if honestly made for the purpose of applying all the property of the assignor to the payment of his debts, the assignee, who accepts the trust in good faith and executes it intelligently, successfully, and…

<p>On Motions by Defendant to Require Plaintiffs to Amend Their Petitions.</p>

At Law. Action to recover excessive duties. This action was brought by Frost & Adams, importers, against Leverett Saltonstall, collector of customs at the port of Boston, to recover excessive duties which had been paid under protest The entry in question was liouidated June 7, 1887, but the importers did not file their protest with the collector until June 18th.

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

<p>Action in Ejectment. On demurrer to answer.</p>

<p>At Law. On trial to the court.</p>

<p>1. Bankruptcy — Inventor’s Rights before Patent — Transfer.</p> <p>A bankrupt’s incorporeal interest in an alleged invention pending application for a patent does not pass to Ms trustee in bankruptcy under Bankr. Act July 1, 1898, c. 541, § 70a, cl. 2, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], declaring that the bankrupt’s interest in patents, patent rights, etc., shall be vested in the trustee by operation of law as of the date he was adjudged a bankrupt, since the words “interest in patents, patent rights,” etc., should be construed as referring to rights acquired under a patent to a third party.</p> <p>2. Same — “Property.”</p> <p>Bankr. Act July 1, 1898, c. 541, § 70a, cl. 2, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], expressly provides for a transfer of the bankrupt’s interest in patents, patent rights, copyrights, and trade-marks, and clause 5 provides for the surrender of all property which, prior to the filing of the petition, the bankrupt could by any means have transferred. Held, that since no mention is made in clause 2 of the incorporeal interest of an inventor in an article conceived prior to the allowance of a patent, such interest should not be treated as “property,” within clause 5, though Rev. St. § 4895 [ü. S. Comp. St. 1901, p. 33S5], permits the inventor to transfer the same, and authorizes the issuance of a patent to the transferee.</p>

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

<p>In Bankruptcy. On review of order of referee.</p>

<p>1. Taxes — Payment under Duress — Recovery—Tort—Jurisdiction.</p> <p>The amended petition alleging that the tax sought to be recovered was exacted by threats and paid under duress, the action is for damages sounding in tort. Held, therefore, that the action is excepted from the jurisdiction of the Circuit Court, in the first instance, by section 1 of the act of March 3, 1887, c. 359, 24 Stat. 505 LU. S. Comp. St. 1901, p. 752],</p> <p>2. Same.</p> <p>The case of Dooley v. United States, 21 Sup. Ct. 762, 182 U. S. 222, 45 L. Ed. 1074, differentiated, as that was controlled by the construction placed upon section 8, art. 1, of the federal Constitution. As such, the action was founded on the Constitution, and conferred jurisdiction on the Circuit Court under the act of 1887.</p> <p>3. Same — Limitations.</p> <p>The amended,petition, as did the original, disclosing the fact that the plaintiff appealed to the Commissioner of Internal Revenue for redress, under section 3226, Rev. St. U. S. [U. S. Comp. St. 1901, p. 2088], held, that the action is subject to the period of limitations imposed by sections 3226 and 3227 of said statutes.</p> <p>4. Same.</p> <p>In such case the running of the statute of limitations Is not suspended during the pendency of the appeal before the Commissioner of Internal Revenue.</p> <p>5. Same — Estoppel.</p> <p>Statements made by ministerial or departmental officers of the government to the claimant pending such appeal, to the effect that the claim would be allowed, or had been certified favorably to the auditing office, constitute no estoppel against the government, so as to avoid the operation of the statute of limitations.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — Exemptions—Law of Georgia.</p> <p>The law of Georgia permits a debtor to take either the statutory homestead exemption or that given by the constitution of 1877, but not both; and further provides (Code, § 2865) that he may supplement his exemption by adding to the amount already set apart, which is less than the whole amount allowed, a sufficiency to make his exemption equal to such amount. Held, that a court of bankruptcy had power, under Bankr. Act 1898, to permit a bankrupt who had been granted the statutory exemption prior to his bankruptcy, but in property which at the date of his bankruptcy was of little value, to supplement the same up to the full value of that allowed by the statute from any property or funds of the estate, but that he could not be allowed the constitutional exemption.</p> <p>2. Exemption — Waiver—Law of Georgia.</p> <p>Under the law of Georgia, the head of a family has no power to waive his statutory homestead exemption in favor of a creditor, such power of waiver having relation solely to the exemption provided by the constitution of 1877.</p>

This action was brought by Margaret P. Daly, as executrix of Marcus Daly, deceased, the plaintiff in error, against the Busk Tunnel Railway Company, the defendant in error (hereinafter termed the “Tunnel Company”), to recover the sum of $22,500 which had been paid by the plaintiff’s intestate to the Tunnel Company on October 2S, 1895.

This was an action to recover damages for the death of Emil Voelker, occurring while he was engaged in coupling cars at Dubuque, Iowa, in the service of the railway company.

<p>L Bankruptcy — Acts op Bankruptcy — Suffering Pbeeebence through Legal Proceedings.</p> <p>A debtor who does not pay a lawful debt when due, upon which the creditor obtains a judgment against him and levies on his property, “suffers and permits” the creditor to obtain a preference, through legal proceedings, within the meaning of Banlcr. Act July 1, 1898, c. 541, § 3, subd. 3, cl. “a,” 30 Stat. 546, 547 [U. S. Comp. St. 1901, p. 3422], which, if he is insolvent, and unless he discharges the preference at least five days before the time for sale under the levy, constitutes an act of bankruptcy.</p> <p>2. Same — Burden op Proving Solvency — Failure to Produce Books.</p> <p>Under Bankr. Act July 1,1898, c. 541, § 3d, 30 Stat. 546, 547 [U. S. Comp. St. 1901, p. 3422], which requires a person charged with bankruptcy, who denies his insolvency, to appear for examination “with his books, papers and accounts,” a merchant is required to produce such books, invoices, etc., as should properly be kept in his business, and which are necessary to show the amount of his assets and liabilities, and his failure to do so, without satisfactory explanation, casts upon him the burden of proving his solvency.</p> <p>8. Same — Evidence on Issue op Insolvency.</p> <p>Where a portion of the stock of goods of an alleged bankrupt was destroyed by fire shortly before the filing of the petition, and his insurance thereon was unadjusted, it was competent on the issue of insolvency' to show the value of his stock before the fire as well as that remaining, and evidence was admissible to contradict or impeach his own estimates or appraisals.</p> <p>V1. See Bankruptcy, vol. 6, Cent. Dig. § 82.</p>

This case was tried in the lower court on a complaint filed by the Alden Speare’s Sons Company, the plaintiff in error, which contained the following allegations: “On or about January 5, 1900, plaintiff sold to defendant ten car loads of wheat starch at the agreed price of 5% cents per pound f. o. b. Indianapolis, Indiana, to be shipped on or before and after July 1, 1900, to J. C. Hubinger Company, Indianapolis, Indiana,- as ordered by defendant.

This suit was instituted in the court of common pleas for Tuscarawas county, Ohio, to recover damages for a personal injury suffered by plaintiff in error while in the employment of the defendant in error as a coal miner. The action was removed into the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio, held at Cleveland.

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

The plaintiff in error was indicted and convicted of violating section 5480 of the Revised Statutes of the United States, as amended by Act March 2, 1889, c. 893, 25 Stat. 873 [U. S. Oomp.

<p>1. Banks — Overdrafts—Notes.</p> <p>An overdraft allowed by a bank is a loan due on demand, and hence, where a demand note is given therefor, a suit may be maintained thereon to the same extent as could have been maintained on the overdraft thereby segregated from the account</p> <p>2. Corporations — Acts of Officers — Notes—Execution. '</p> <p>A building corporation opened an office in a city in a foreign state, where it was conducting large building operations, and placed the same in charge of its assistant secretary, who opened a bank account in defendant’s bank in the name of the corporation through which the latter’s financial transactions at that place were accomplished. The account becoming overdrawn, such officer executed demand notes in the name of the corporation to the bank therefor, whereupon the amounts were credited in the corporation’s bankbook, and the book was delivered to the officer, whose accounts were periodically checked up by the corporation, and no objections to the accounts were made. Held, that the corporation was liable on the notes, though no express authority to the officer executing them to do so was shown, and he subsequently became a defaulter to the corporation for a large sum.</p> <p>3. Same — Interest.</p> <p>Where an overdraft was settled by the execution of a note payable on demand, the amount due bore interest from the date of the settlement.</p>

Action for personal injuries sustained by the plaintiff, while in the defendant’s employ, by the fall of a scaffolding on which he was standing when laying brick in a wall of a building in course of construction. Upon the conclusion of the plaintiff’s evidence, Wing, District Judge, instructed the jury to return a verdict for the defendant.

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

<p>1. Building and Loan Associations — Insolvency—Foreclosure Suit by Foreign Receiver.</p> <p>A building and loan association of Minnesota deposited bonds and mortgages of its members with the state of Wisconsin, in compliance with the law of that state, in order to entitle it to do business therein, and to secure the performance of contracts made with citizens of the state. The association having become insolvent, a controversy arose in the courts of Wisconsin between a special receiver there appointed and the general receiver in Minnesota as to the right to such securities, pending which, however, it was stipulated that they should be collected by the Wisconsin receiver, and they were formally assigned to him by the general receiver. Reid, that a federal court in Idaho, acting in a spirit of comity, properly permitted such receiver to maintain a suit therein to foreclose a mortgage given by a citizen of the state on property therein which constituted one of the securities so deposited, although he was not entitled to maintain such suit as a matter of right; it not being contrary to any law or public policy of the state, nor in any manner prejudicial to any right of the defendants.</p> <p>2. Same — Contracts with Borrowing Members — Effect of Insolvency.</p> <p>The insolvency of a building and loan association works a rescission of its contracts with its members, and sums borrowed by them become immediately due and payable, regardless of the terms of payment fixed by the contract.</p> <p>3. Same — Usury—Law Governing.</p> <p>A bond and mortgage given by a member to a building and loan association organized under the laws of Minnesota, payable at its office in that state, are governed by its laws with respect to usury, although the mortgaged property may be situated in another state, where the borrower resides.</p> <p>1[ 1. Suits by and against receivers of federal courts, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49.</p> <p>IT 3. What law governs usury by building and loan associations, see note to Kirlicks v. Interstate Building & Loan Ass’n, 51 C. C. A. 319.</p> <p>See Usury, vol. 47, Cent. Dig. § 11.</p>

<p>1. Administrator — Right to Recover on Bond op Predecessor.</p> <p>Under the statute of Pennsylvania, an' administrator d. b. n. is authorized to demand and recover from his predecessor in the administration, or the sureties on his bond, all money due and belonging to the estate of the decedent.</p> <p>2. Bankruptcy — Provable Claims — Liability as Surety.</p> <p>Where an orphans’ court in Pennsylvania entered a decree nisi adjudicating the account'of an administrator and directing a distribution, which decree was afterward “confirmed absolute,” but later suspended as to the distribution, and the administrator directed to hold the “balance shown by said account” until further order of the court, such decree fixed the amount of the administrator’s liability to the estate, and also that of the surety on his bond; and an administrator d. b. n. subsequently appointed, to whom the first administrator has been ordered by the court to pay over such amount, may prove the same in bankruptcy against the estate of the- surety as a fixed liability evidenced by such decree, absolutely owing to the estate, within the meaning of Bankr. Act July 1, 1S98, c. 541, § 63a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447].</p> <p>If 1. See Executors and Administrators, vol. 22, Cent. Dig. §§ 488, 2521.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>1. Agent’s Authority — Evidence—Declarations oe Agent.</p> <p>The admissions or declarations of an alleged agent are alike Incompetent to prove his authority or the extent of liis powers.</p> <p>1f 1. See Principal and Agent, vol. 40, Cent. Dig. § 416.</p> <p>(Syllabus by the Court.)</p>

<p>1. Chinese Exclusion — Review oe Order of Deportation — Jurisdiction or Circuit Court op Appeals.</p> <p>Under section 6 of Act March. 3, 1891, creating the Circuit Courts of Appeals (26 Stat. 828, c. 517 [U. S. Comp. St. 1901, p. 549]), which gives such courts the power to review by appeal or writ of error final decisions in the District Court, an appeal lies to such court from a judgment of a District Court rendered on an appeal from an order of a commissioner for the deportation of a Chinese person arrested under section 13 of the exclusion act of September 13, 1888, c. 1015, 25 Stat. 479 [U. S. Comp. ,St. 1901, p. 1317], which authorizes an appeal from a conviction before a commissioner to “the judge of the District Court for the district.”</p>

<p>1. Bankruptcy — Courts—Jurisdiction—Mortgaged Property — Sale.</p> <p>Union Trust Company, Petitioner, 122 Fed. 937, 59 C. C. A. 461, applied, to the effect that a court of bankruptcy has jurisdiction to order a sale in gross of all the assets of a bankrupt manufacturing corporation in its possession free from incumbrances, notwithstanding the corporation has given a mortgage on such assets to secure its bonds, leaving questions as to what assets are covered by the mortgage to be afterwards determined.</p> <p>2. Same — Revisory Petition — Questions Review able.</p> <p>An objection to an order of a court of bankruptcy fixing a minimum bid for the sale of the assets of the bankrupt, and providing that five-sixths of the purchase price might be paid in bonds secured by mortgage on such assets, will not be reviewed on a revisory petition where petitioners could not be prejudiced in any manner thereby.</p> <p>3. Same — Questions Raised Below.</p> <p>Where it was not objected in the District Court, sitting in bankruptcy, that part of the property of a bankrupt ordered to be sold had not been inventoried in the manner required by the bankrupt act, such objection would not be considered on a revisory petition.</p> <p>lf 2. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p>

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

<p>Appeal from the Circuit Court of the United States for the Western Division of the District of Washington.</p> <p>On motion to dismiss appeal. For opinion of court below, see 129 Fed. 472.</p>

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

<p>1. Patents — Anticipation—Presumption from Action of Patent Office.</p> <p>The presumption arising from the granting of a patent, that it was not anticipated by one previously issued, is strengthened where it is shown that such prior patent was called to the attention of the examiners and considered before the one in suit was granted, and in such case any doubt on the question must be resolved in favor of the later patent.</p> <p>2. Same — Inoperative Prior Device.</p> <p>A patent for an operative and useful device is not anticipated by a prior device which is not operative, although the parts and combination may be similar.</p> <p>3. Same — Infringement—Car Seats.</p> <p>The Hale patent No. 359,354, for a car seat, construed, and held not anticipated, valid, and infringed.</p> <p>V 2. See Patents, vol. 38, Cent. Dig. § 73.</p>

In Equity. Suit for infringement of letters patent No. 389,435, for a machine for making matches, granted to E. B. Beecher September n, 1888. On motion for preliminary injunction.

<p>1. Patents — Infringement—Electrical Converters.</p> <p>The Westinghouse patent, No. 366,362, claim 4, for an electric converter constructed with open spaces in its core, an inclosing case, and a-nonconducting fluid or gas in said case, adapted to circulate through said spaces and about the converter for the purpose of cooling the same, construed, and held not infringed by a converter in which spaces were left between the coils and between them and the inclosing core for containing a cooling liquid, but which had no open spaces in its core.</p> <p>2. Same — Construction of Claims — Estoppel.</p> <p>Where a patentee and complainant, his assignee, had for a number of years placed a certain construction on a claim of his patent, with knowledge that during such time defendant was making and selling a device for a similar purpose, but which did not infringe the patent as so construed, complainant is estopped to claim a different construction for the-purpose of charging defendant with infringement.</p>

<p>1. Insurance — Conditions—Proofs of Loss — Filing—Time.</p> <p>A condition in a fire policy requiring proofs of loss to be furnished within 60 days afforded a reasonable time to enable assúred to comply therewith.</p> <p>2. Same — Waiver.</p> <p>Where a fire policy provided that proofs of loss should be furnished within 60 days from the date of loss, and declared that an extension of such period should be evidenced by a writing attached to or indorsed on the policy, and that the insurer should not be held to have waived any forfeiture provided for in the policy, or any condition thereby imposed on insured by any proceeding on the part of the company relating to appraisal or examination of the property insured, a forfeiture for assured’s failure to furnish proofs of loss within the time required, in the absence of such written extension, was not waived by an acknowledgment of notice of loss and the commencement and continuation of negotiations for settlement without requiring proofs to be made.</p> <p>If 2. See Insurance, vol. 28, Cent. Dig. §§ 1405, 1406.</p>

<p>1. Federal Courts — Process—Service—Plea in Abatement — Affidavit.</p> <p>Where, in an action against a foreign corporation, a plea in abatement was filed on its behalf to vacate the service, which averred that the person on whom process was served was neither an agent nor officer of the corporation, an affidavit by the person so served, as required by equity rule 31, that the averments in the plea were true in fact, and that it was not interposed for delay, was insufficient, since the plea on its face showed that such person had no authority to make it on behalf of the corporation.</p> <p>2. Same.</p> <p>Where the return of service on an alias summons in an action against a foreign corporation showed service on the corporation’s alleged resident agent on January 20, 1904, a plea in abatement to quash the service,’ verified on March 3, 1904, and reciting that the person served “is” not an agent or officer of the corporation, was insufficient, since it did not negative the fact that he was such agent on the date of service.</p> <p>If 1. Service of process on foreign corporations, see note to Eldred v. American Palace-Car Co., 45 C. C. A. 3.</p>

<p>On Motion to Set Aside Order Overruling Motion to Remand to State Court.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Petitions—Necessity—Consolidation—Res Judicata.</p> <p>The consolidation of bankruptcy petitions filed by different creditors under order of court before the adjudication of bankruptcy, and before reference to the referee, was res judicata of the question of the necessity for the filing of the second petition, and precluded the referee from thereafter reviewing the question and holding that such second petition was unnecessary.</p> <p>'2. Same — Attorney’s Fees — Division.</p> <p>Where two bankruptcy proceedings were filed by attorneys representing different creditors, and were consolidated by order of court, as authorized by general bankruptcy order No. 7 (89 Fed. v, 32 C. C. A. xi), a single attorney’s fee should be divided between such attorneys according to the relative v¿lue of the services and amount of work done by each.</p>

<p>1. Bankruptcy — Trustees—Selection.</p> <p>Where a trustee chosen to administer the assets of a bankrupt corporation by a majority of the creditors was not only a stockholder in the corporation, but had been closely associated as attorney for those who had previously been in control, and whose management was not only the subject of criticism, but might call for action on the part of the trustee to hold them personally responsible, such trustee, though unobjectionable personally, should not be permitted to act over the objections of a minority.</p> <p>If 1. See Bankruptcy, vol. 6, Cent. Dig. § 185.</p>

On Petition for Injunction. On November S, 1903, the Acting Assistant Attorney General for the Post-Office Department at Washington, D. C., notified the Missouri Drug Company, doing business in the city of St. Louis, Mo., that charges had been lodged with the Postmaster General against the drug company to the effect that it was engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent representations or promises, in…

On Demurrer to Indictment. The indictment, found under section 5508 of the Revised Statutes [U. S. Comp. St. 1001, p. 3712], contained two counts.

<p>1. Deeds — Construction—Reference to Map.</p> <p>A deed to land in the town site of Denver, made pursuant to a decree-of the probate judge, entered after hearing on the petition of the grantee, described the land by metes and bounds; making the old bed of the Soutt Platte river, as shown on a map referred to therein, a part of the northwesterly boundary, and the extreme depth of the tract westerly from the street on which it fronted 125 feet, which was the depth claimed by the petitioner. At the time the map was made, it was difficult, if not impossible, to correctly locate the old bed of the river, which had been obliterated by floods. According to the scale of the map, it was shown to be-260 feet from the street at the nearest point where it would be reached by the boundary given, but the field notes of the survey on which the map-was based showed it to be very near the street. Held, that it could not be presumed that the judge intended to grant more than the petitioner claimed, nor could the distances given in the description be ignored because of the reference to the river bed, the location of which was uncertain, and that the deed must be construed as conveying no land west, of a line 125 feet from the street.</p>

<p>In Bankruptcy.</p> <p>The following is the referee’s report:</p> <p>To the Honorable Waller T. Burns, Judge of the United States District Court for the Southern District of Texas:</p> <p>This proceeding, involuntary in its nature, was instituted 4th of November, 1903, by H. D. Taylor & Sons and other parties against the Lake Jackson Sugar Company, of Brazoria county, Texas, by petition duly sworn to and filed with the clerk of this court; in which petition it is alleged that the petitioners are creditors of the said Lake Jackson Sugar Company, having provable claims against it to the amount, in the aggregate, of $500 and over; that the said company owes debts to the amount, in the aggregate, of $1,000 and over; that the said company is insolvent, and is neither a wage-earner nor is it engaged principally in farming or in.thei tillage of the soil; that within the four months next preceding the filing of their petition, to wit, on the 3d day of November, 1903, a receiver, because of the said company’s insolvency, was put in charge of its properties, under the laws of rhe state of Texas; the name of which receiver is T. E. Bennett, of Angleton, Texas; that said company has committed other acts of bankruptcy by paying money to certain of its creditors, thus creating a preference in favor of such creditors over other of its creditors; that said company has long ceased to pay its debts, and that suits are now pending against it. The prayer of the petitioners is that the Lake Jackson Sugar Company be adjudged bankrupt within the purview of the acts of Congress relating to bankruptcy.</p> <p>To the said petition of H. D. Taylor & Sons et al. the said receiver, T. E. Bennett, made answer under oath, virtually admitting all the allegations therein, except that which alleges that “the Lake Jackson Sugar Company is neither a wagenearner nor a person engaged principally in farming or the tillage of the soil.” To the same effect did several intervening creditors of said company make answer thereto, affirmatively alleging in their respective answers that said company was and is chiefly engaged in the business of farming and tillage of the soil. The Lake Jackson Sugar Company, though duly served with process, wholly made default.</p> <p>The petitioners filed a replication to these answers, thus raising the issue as to whether or not the defendant, the Lake Jackson Sugar Company, is or is not engaged chiefly in farming and the tillage of the soil, and this is the only issue in the case. And in pursuance of an order of your honor, made in the above cause, and bearing date December 3, 1903, whereby the undersigned was authorized and directed, as referee of this honorable court, “to consider the petition in the above cause, and also to hear the contest therein raised by answers therein filed, and to take such proceedings therein as are required by the acts of Congress relating to bankruptcy, and that the said Lake Jackson Sugar Company and contesting creditors shall attend upon said referee at such date in the near future as shall suit said referee and the parties at interest,” I, S. W. Jones, referee, as aforesaid, do report that, having duly extended notices to the said Lake Jackson Sugar Company and to all others in interest, through their attorneys of record, of the time and place for the hearing before me of the matters referred — that is to say, at 11 o’clock a. m., on the 19th day of December, 1903, at the United States courtroom in the city of Galveston, Texas — I did, on the day and at the place aforesaid, proceed to consider the said petition and to hear the contest in the above cause raised by answers therein filed, and to take such proceedings therein as are required by the acts of Congress relating to bankruptcy; and, having been attended by Sterling Myer, of the law firm of Hunt & Myer, counsel for the petitioning creditors, A. R. Masterson (for H. Masterson), counsel for T. E. Bennett, receiver, and by A. E. Masterson, counsel for intervening and contesting creditors, and having heard read the pleadings and the documentary evidence and the oral and written testimony produced before me and the arguments of counsel, and having duly and carefully considered the same, and having carefully examined and inquired into the matters so referred, I do find and report as follows:</p> <p>From the evidence before me I find: That the Lake Jackson Sugar Company was incorporated under the general incorporation act of this state in April or May, 1900, for the purpose of “manufacturing sugar cane into molasses, sugar, and all other products of sugar cane, and for that purpose to purchase material necessary for such manufacturing, and to sell the products of such manufacturing business; to purchase such real estate, machinery, and appliances as may be necessary or suitable to conduct such business.” That very shortly after its incorporation the said company leased two large plantations upon which to raise sugar cane and other products, constructed a railway, equipped with necessary rolling stock, from these plantations to a sugar mill, where it could convert the sugar cane into merchantable commodities, and thence to a trunk line of railway by which the said company could market its products. That it about the same time began the cultivation upon said lands of sugar cane and corn, except a small portion thereof, which it sublet to a third party for rice culture upon shares. That it raised each year large quantities of sugar cane, varying with the seasons, and also corn, employing for that purpose a large number of live stock and from seventy-five to one hundred laborers. That about six or seven hundred acres of said lands were employed in the raising of such cane. That the juice from this cane was manufactured by the said company into molasses, sugar, and syrup, and the commodities were placed, each year, upon the market, and sold in most of the cities and towns of any size in the state of Texas; and that the said company neither purchased nor sold any cane.</p> <p>Joseph Rhea testified, besides other facts: That he is now, and had been for four or five years previous hereto, the manager for the defendant company. That the company employed its laborers by the day. That the mill was used in reducing the cane raised into sugar, molasses, and syrup. That no cane was ever used except that raised on the two plantations. Never raised any cotton. That five or six hundred, acres were used in raising corn. That the corn was used in feeding the live stock employed on the two plantations; that this live stock is valued at $10,000. That the cane crop raised by the company in 1902 was valued at $20,000. That the manufactured products of the said company were its only sources of revenue; that these products were generally sold to jobbers. That letters were often written offering them for sale. That “we [meaning the defendant] sent out samples and wrote letters offering them for sale to jobbers throughout the country. We manufactured syrup of a very high grade, and placed it in every town in Texas of any size, during the present season, and no complaint have we had. We had a ready sale for this syrup, and sold it through jobbers. We also sold our sugar through jobbers. The syrup was put up in cans and some in barrels. The store on the plantations was for the accommodation of our employes. On the 1st of January, 1903, we carried a stock worth about $2,500, which consisted of groceries, dry goods, hardware, farm implements, lumber, and shingles. This store was open to any one who wished to buy, and others would buy as well as our laborers and people in the vicinity were aware of that fact. We generally kept a general stock of goods on hand in the store. We sold at a profit, and would make from 25 to 50 per cent, profit. That railroad and its equipment cost about $40,000, and the sugar mill about $15,000. The Lake Jackson Sugar Company does not own the sugar mill. We did not pay our laborers wages in merchandise, but gave them time checks, which were equivalent to money, and these time checks were cashed at the end of every two weeks, or they could be used in the purchase of merchandise at the store, if the laborer so wished. We put up our sugar in barrels, just as other manufacturers do.”</p> <p>The following is a letter addressed by the defendant, through J. Rhea, its manager, recognized by him as emanating from him, together with the printed heading thereon, which form was generally used in the company’s correspondence :</p> <p>“R. Oliver, President. J. Walker, Secretary. Jos. Rhea, Manager.</p> <p>“The Lake Jackson Sugar Company.</p> <p>“Dealers in General Merchandise, Hardware, Harness, Farm Implements,</p> <p>Builders’ Supplies, Lumber, Shingles, Windows, Doors and Sash,</p> <p>Lime, Cement and Brick.</p> <p>“Manufacturers of Sugar, Molasses and Pure Ribbon Cane Syrup.</p> <p>“Angleton, Texas, Jany. 31, 03.</p> <p>“Messrs. H. D. Taylor and Sons, Houston, Tex. — Gentlemen: We are in receipt of your letter of the 28th inst., and note what you have to say concerning syrup. You state can goods is not going rapidly because you have so much barrel goods on hand, now this is the very reason, as you have acknowledged, ‘You have none,’ therefore you cannot know of its selling qualities. This goods does not interfere with your sales in barrel good, as it goes to a different trade, it is of a much higher quality and when once the best trade gets it to their table they will constantly call for it You should put it up to your best customers that they can have an opportunity to give their trade the Pure Article. We are sure that you will be more than satisfied and that every desire you may have for a syrup will be filled when you have put our goods before your trade.</p> <p>“We are anxious for you to try our goods, not for the sake of a sale, but to have your customers try it, that they will know where the pure goods, the goods with the best flavor and bearing the proper color, can be found. We know our goods can not be equaled and for this reason we insist that you use it. We have placed it in every town in Texas of any size during the present season and not one complaint have we had. We trust you will give this matter, the question of pure syrup, due consideration and await your orders with pleasure.</p> <p>“We enclose B/L to the candy we are returning, you will please credit our account and mail us credit memorandum. ’ Our samples of sugar went forward on yesterday, which we trust you have by now. Trusting to have you command us at an early date and assuring you our best efforts in filling your orders, wei remain,</p> <p>“Yours very truly, The Lake Jackson Sugar Co.</p> <p>“Jos. Rhea, Manager.”</p> <p>The bankrupt act of July 1, 3898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], provides as follows: “Any natural person, except a wage earner or a person engaged chiefly in farming or the tillage of the soil; any unincorporated company, any corporation engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits, owing debts to the amount of $1,000.00 or over, may be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be subject to and entitled to the provisions of this act Private bankers, but not national banks, or banks incorporated under state or territorial laws, may be adjudged involuntary bankrupts.” And it is claimed in this case by the respondents that inasmuch as the defendant company is, as alleged by them, chiefly engaged in farming or the tillage of the soil, it (the defendant) comes within the exception above quoted, to wit “a person engaged chiefly in farming or the tillage of the soil,” and is not amenable to said bankrupt act But it seems to me that this contention is clearly erroneous. I have been cited to no authority, nor have I been able to find any, where such a defense has been advanced by a corporation in an involuntary proceeding. Indeed, it is rather a novel idea that a corporation should be engaged chiefly in farming or the tillage of the soil. The phrase above quoted from the act should be and .has been strictly construed, even in eases where an individual person was alleged bankrupt (Collier on Bankruptcy, p. 54); and, in my opinion, the use of the phrase “natural person,” when construed in connection with the above-quoted phrase, “except wage-earners and those chiefly engaged in farming or the tillage of the soil,” and all that follows it, is to exclude! corporations from this exception. Collier on Bankruptcy, p. 53.</p> <p>But suppose I am in error in this. Has the defendant company been brought within this exception according to the facts disclosed? From those facts it appears that it (the defendant company) has been for several years engaged in three different branches of business — in farming, in merchandising, and in the manufacture! of sugar, molasses, and syrup from the sugar cane which it raised upon the plantations cultivated by it; and of these, which did the company deem of paramount importance to its welfare? Was it its farming or its manufacturing interest or enterprise? It raised corn, it is true, but sold none, consuming all of it in feeding the mules, numbering fifty head and over, employed by it in cultivating two plantations, whereon was raised this corn, and also sugar cane, the juice of which latter was converted by the company into sugar, molasses, and syrup, and sold in the open market; one year realizing therefrom $20,000. The company bought no cane and sold none, and its only source of revenue was from its manufactured articles. If these facts be true — and they are nowhere contradicted — the only natural conclusion is that manufacturing, and not farming, was its chief pursuit or vocation; that the latter was only incidental to the former, and only pursued in furtherance of its manufacturing interests — in other words, that its manufacturing interests were deemed by it of paramount importance’ to its welfare and pecuniary advancement. The premises considered, I conclude that the defendant, the Lake Jackson Sugar Company, is insolvent, has committed acts of bankruptcy, and is amenable to the acts of Congress relating to bankruptcy, and that an order adjudicating it bankrupt should be entered by this honorable court in this case; and I respectfully so recommend.</p> <p>Respectfully submitted, S. W. Jones, Referee in Bankruptcy.</p>

<p>1. Bankruptcy — Proof op Claims — Authentication.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 20, 30 Stat. 551, 552 [U. S. Comp. St 1901, p. 2430], a notary public is authorized to administer the oath to a proof of claim, being an officer authorized to administer oaths in proceedings in the courts of the United States by Act Aug. 15, 1876, c. 304, 19 Stat. 206 [U. S. Comp. St. 1901, p. 662]; and such oath is sufficiently authenticated, prima facie, by what purport to be the notary’s official signature and seal, although made in a different state from that in which the proceedings are pending, and without regard to the special requirements of the statutes of either state.</p>

<p>1. Acts of Bankruptct — Preference—Judicial Proceedings.</p> <p>Where a landlord’s levy on the goods of his tenant under a distress warrant did not operate as a preference, as defined by Bankr. Act July 1, 1898, c. 541, § 60, cl. “a,” 30 Stat. 562 [U. S. Comp. St. 1901, p. 3446], amended by Act Cong. Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416], the failure of the bankrupt to procure the release of such levy did not constitute an act of bankruptcy.</p> <p>2. Same.</p> <p>Where counsel for one of the petitioning creditors of a.bankrupt threatened him with criminal proceedings unless the debt due was immediately paid, whereupon the bankrupt sold certain property for nearly its full value to raise money for the purpose at a time when his entire stock was worth less than his entire indebtedness, but the creditor afterwards refused to receive the money, and instituted criminal proceedings, such sale by the bankrupt did not constitute an act of bankruptcy within Bankr. Act 1898, c. 541, § 3a, subds. 1, 2, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], providing that the conveyance of property with intent to hinder, delay, or defraud the bankrupt’s creditors, or a transfer thereof while insolvent with intent to prefer some creditors over others, shall constitute acts of bankruptcy.</p> <p>3. Same — Removal of Property.</p> <p>Where a creditor of a bankrupt removed certain goods from the bankrupt's store during the bankrupt’s absence, and retained possession thereof over the bankrupt’s protest, the bankrupt’s failure to take legal proceedings to recover possession of the goods, in the absence of evidence of collusion, did not constitute an act of bankruptcy within Bankr. Act July 1, 1898, e. 541, § 3a, subd. 1„ 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], providing that the removal of any part of a bankrupt’s property with his permission, with intent to hinder, delay, and defraud creditors, shall constitute an act of bankruptcy.</p>

<p>L Unfair Competition — Grounds for Equitable Relief.</p> <p>The use by oue manufacturer to designate Ms product of a name previously in use by another does not alone constitute unfair competition, but, to justify a court of equity in interfering, there must also be such an imitation of display or dressing as to deceive purchasers into buying defendant’s goods for those of complainant; fraud being the practical basis of any such relief.</p> <p>2. Sam:e — Facts Considered.</p> <p>Complainant manufactures and sells in five-cent packages a small confection, composed chiefly of liquorice, under the name of “Liquorice Pastilles.” They are of diamond shape, and have embossed thereon the letters “H-H.” Defendants make and sell a similar article under the same name, having the same size, color, and shape, and the letter “W” embossed thereon. Held, that none of such facts, nor all together, entitled complainant to an injunction on the ground of unfair competition, the name being descriptive, and having been previously used by others in substantially the same form, and neither the shape of the confection, nor the embossing of letters thereon, having originated with complainant; there being no attempt by defendants to imitate Ms packages.</p> <p>If 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>L Master and Servant — Injury of Servant — Negligence of Fellow Servant.</p> <p>Evidence considered, and held to show that the injury of an employéby the falling of the ram of an hydraulic press, which he was assisting to. repair, was not due to any defect in the appliances used, nor to the incompetence of a fellow servant, but, so far as appeared, to his negligence, for-which the master was not liable.</p>

<p>1. Seamen — Wages—Penalty foe Refusing to Pay without Sufficient Cause.</p> <p>Libelants were hired as deck hands on a steamer making daily trips between New York and another port at $30 per month, and after working six days left the service without the consent of the master. Held, that the refusal of the owner to pay them wages for the time they worked did not subject him to the penalty imposed by Rev. St. § 4529, as amended U. S. Comp. St. 1901, p. 3077, for refusing and neglecting to pay seaman’s wages when due without sufficient cause, there being reasonable ground, at least, for the owner’s claim that libelants’ contract was one from month to month, and that they had no right to abandon the service before the end of the month.</p>

<p>1. Municipal Cobpobations — Effect of Dissolution — Laws of Minnesota.</p> <p>Sections 83, 34, ingrafted on article 4 of the Constitution of Minnesota by way of amendment in 1892, prohibit the passage of any local or special law regulating the affairs of, or incorporating, erecting, or changing the lines of, any county, city, village, township, ward, or school district, but provide that the Legislature may repeal any existing special or local law, and that it shall provide general laws for the transaction of any business so prohibited. Gen. St. Minn. 1894, § 258, provides that whenever a law is repealed which repealed a former law the former law shall not thereby be revived unless it is so specially provided. In 1868 a village was created by a special act from territory lying partly within a city and partly within a township previously created. The act creating the village made no reference to the city or township, their boundaries, or the statutes defining them. In 1895 the special act creating the village was repealed. Held, that the constitutional and statutory provisions cited had no application to such repealing act; that the statutes creating the city and township and defining their boundaries were not repealed by the act creating the village, the effect of which was to except the territory covered by it from the city and township, and from the operation of the statutes creating them, which exception ended when such act was repealed, leaving the territory within the city and township as before its enactment.</p> <p>2. Same.</p> <p>The express authority for the repeal of any existing special or local law conferred by the proviso to the constitutional amendment is a limitation upon the inhibition against the passage of special or local laws, and withdraws such repealing acts, as well as the changes necessarily wrought in existing conditions, by giving them their ordinary legal effect, from the operation of that inhibition; and hence the act repealing the law creating the village is not to be construed as one changing the boundary lines of the city and township, but merely as releasing the territory previously excepted from their jurisdiction by the act repealed, upon which it again came within their jurisdiction by virtue of the valid and subsisting statutes creating them and defining their boundaries.</p> <p>3. Statutes — Effect of Repeal.</p> <p>Gen. St. Minn. 1894, § 258, providing that the repeal of a law repealing a former law shall not revive the former law unless so expressly provided, applies only to cases of absolute repeal, and not to eases where the law repealed merely ingrafted an exception on a prior law, leaving it in force. In such cases the repeal leaves the former law to be applied without the exception.</p> <p>4. Municipal Cobpobations — Dissolution—Appobtionment of Indebtedness.</p> <p>In the absence of constitutional limitation it is wholly within the power of a Legislature on the dissolution of a municipal corporation and the transfer of its territory to others to apportion its indebtedness between such others, and to determine what proportion shall be borne by each; but in the absence of such apportionment they will be severally liable in proportion to the value of the taxable property of the dissolved corporation which falls within their boundaries .respectively, and the power of taxation to be exercised to pay such debts will extend to all the taxable property within their respective jurisdictions.</p> <p>f 4. Dissolution and reincorporation of municipal corporations — Effect on indebtedness — see note to City of Uvalde v. Spier, 33 C. C. A. 506.</p> <p>See Municipal Corporations, vol. 36, Cent. Dig. §§ 107, 109.</p> <p>5. Statutes — Constitutionality—Special Legislation.</p> <p>Const. Minn. art. 4, § 33, which prohibits the enactment of special laws where a general law can be made applicable, has in numerous decisions been construed by the Supreme Court of the state, which has uniformly held that a law based on a classification purely arbitrary and not justified by some apparent natural reason, was within the prohibition. Act April 10, 1901 (Laws 1901, p. 279, c. 201), provides, in effect, that where a municipality created by special act, and having outstanding bonds or other written obligations, has been or shall be dissolved by the repeal of the act creating it, the effect of which is to attach its territory to one or more existing municipalities, such indebtedness shall be enforceable solely against the territory which was responsible for its payment at the time of the repeal. Held, that under the rule of the Supreme Court such act is special legislation, and void, there being no natural reason why a distinction should be made between municipal corporations created by special act and dissolved by its repeal and those created and dissolved under the general laws of the state, which have long existed, and provide both for the creation and dissolution of such corporations; nor between “bonds or other written obligations” and other forms of indebtedness in respect to the property which shall be charged with payment on dissolution.</p> <p>6. Equity — Laches.</p> <p>An owner of bonds issued by a village, who commenced an action thereon before the expiration of the period of limitation, and obtained a judgment against the village, which was afterward adjudged in quo warranto proceedings to have been dissolved by a prior act of the Legislature, and who, within two years after obtaining his judgment, and within one year after the judgment of ouster, commenced a new suit in equity against the successors of the village, based on his judgment, was not chargeable with laches.</p>

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

<p>1. Criminal Law — Witnesses—Examination—Notice to Accused.</p> <p>Since Rev. St. U. S. § 1033 [U. S. Comp. St. 1901, p. 722], providing that a person indicted for treason or a capital offense shall be furnished with a list of witnesses, to be produced three days before the trial on the indictment for treason and two days before the trial of any other capital cases, limits such right to trials for treason and capital offenses, it impliedly authorizes the examination of witnesses in trials in the federal courts for lesser crimes without such witnesses being previously disclosed to accused.</p> <p>If 1. See Criminal Law, vol. 14, Cent. Dig. §§ 1420, 1422.</p> <p>2. Same — Federal Courts — State Law — Adoption—Practice—Custom.</p> <p>A federal court in 1859 adopted certain chapters of the Code of the state in which it was sitting relating to criminal procedure, requiring the names of all witnesses, on whose evidence the indictment is found, to be indorsed on the indictment, and providing that the county attorney should not introduce any witness who was not examined before a committing magistrate or the grand jury, etc. In 1893 the practice in such court was changed so as to authorize the government to introduce testimony of witnesses other than those whose names were indorsed on the indictment, without giving previous notice to accused. Held, that a defendant subsequently indicted was not entitled to claim the benefit of the former practice.</p> <p>3. Appeal — Assignments of Error — Objections to Testimony.</p> <p>Where neither the assignment of errors nor the brief of counsel on appeal quotes the substance of testimony objected to, in full, as required by Court of Appeals rules 11 and 24 (89 Fed. vii, xi, 32 C. C. A. xiv, xxiv), and the pages of the record where the testimony is reported are not referred to, such objections will not be reviewed.</p> <p>4. Same — Bill of Exceptions — Exhibits—Objections.</p> <p>Where objections to the admission of written and printed exhibits are relied on on appeal, it is improper to describe them in the bill of exceptions merely by date and general import, but they should be set out in full at the places where they appear to have been offered and read.</p> <p>5 Use of Mails — Scheme to Defraud — Evidence—Letters—Advertising Matter.</p> <p>Since, in a prosecution for use of the mails in furtherance of a scheme to defraud, in violation of Rev. St. U. S. § 5480 [U. S. Comp. St. 1901, p. 3696], by inducing the public to purchase worthless mining stock, the gist of the offense is fraud, letters and telegrams principally written by defendant, showing that he exercised absolute control of a mining company, the stock of which he was engaged in selling, some of such letters containing false and fraudulent representations inducing a sale of stock, and other false and fraudulent advertisements in newspapers and magazines, printed as news and paid for at high rates as advertisements, which pretended to give a true account of defendant’s achievements as a mining expert, and calculated to deceive the public, were admissible.</p> <p>6 Same — Witnesses—Defendant—Cross-Examination—Material Matters— Failure to Explain — Presumptions.</p> <p>Where, in a prosecution for using the mails with intent to defraud, defendant became a witness in bis own behalf, as authorized by Act March 16, 1878, c. 37, 20 Stat. 30 [U. S. Comp. St. 1901, p. 660], providing that a person charged with an offense shall at his own request, but not otherwise, be a competent witness, and that his failure to make such request shall not create any presumption against him, an instruction that, defendant having gone on the stand, if he had not fully explained or had not explained matters material to the issues which were naturally within his knowledge, the'jury might consider such failure as a circumstance tending to show that the facts, if explained, would bear out the contention of the government, and his failure to explain them, or give a truthful explanation, was against him, was erroneous as misleading, and as placing an undue burden of proof on defendant.</p>

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

<p>1. Salvage — Raising Sunken Vessel — Services Rendered by Owners of Vessel in Fault.</p> <p>The raising of a sunken vessel is not a salvage service for which compensation can be collected, where the sole owners of the vessels employed in the raising were also the sole owners of the one through whose fault the sinking occurred.</p> <p>2. Same.</p> <p>A barge sunk while in tow of a tug was raised and brought into port by other vessels owned by the owners of the tug. Subsequently the tug was libeled for the loss, and then filed a petition for limitation of liability, which prevailed. Afterward her owners brought suit to recover for salvage services rendered in raising the barge. The tug was held solely in fault for the sinking of the barge, and the damages exceeded her stipulated value, without taking into consideration the cost of salvage, and a decree was entered for such stipulated value. Held that, whatever may have been the rights of the owners of the tug with respect to salvage if they had surrendered her before performing the service, the proceeding to avail themselves of the limited liability statute, not having been begun until after the service was rendered, could not affect the application of the rule that a salvage reward cannot be claimed by the owners of the vessel through whose fault the services were rendered necessary.</p> <p>fl. See Salvage,-vol. 43, Cent. Dig. § 44.</p>

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

<p>1. Maritime Liens — Wrongful Death — Statutory Action for Damages.</p> <p>Code Civ. Proc. Cal. § 377, gives a right of action for wrongful death “against the person causing the death.” Section 813 provides that “all steamers, vessels and boats are liable * * * (5) for injuries committed by them to persons or property.” Held, that such statutes do not give a lien on a vessel for the damages recoverable under section 377 for a death resulting from collision, and that a suit in rem cannot be maintained in a court of admiralty to recover such damages.</p> <p>IF 1. Maritime liens for torts, see note to The Anaces, 34 C. C. A. 565.</p> <p>See Admiralty, vol. 1, Cent. Dig. § 285.</p> <p>2. Evidence — Weight—Right to Disbelieve Witness although Uncontbadicted.</p> <p>In a suit to recover for the death of a person on a launch which was sunk in collision with a steamer, where the only persons on the launch were drowned, the court is not bound to accept as true the testimony of the pilot of the steamer that the launch suddenly changed its course and ran directly into the steamer, although uncontradicted, the inherent improbability of such action being such as to warrant the court in disbelieving the testimony.</p> <p>3. Collision — Steamebs Meeting in Naebow Channel — Violation of Rules.</p> <p>A steamer held in fault for a collision in a river with two launches made fast together, in which the launches were sunk, and those on board drowned, on the ground that she did not have a proper lookout, and for violation of article 25 of the inland navigation rules (Act June 7, 1897, c. 4, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2883]), which required her to keep on the other side of the channel.</p>

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

<p>1. Bankruptcy — Transfer to Preferred Creditor — Preference.</p> <p>Under section 60a of the bankrupt law of July 1, 1898,. c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended (Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416]), a transfer of the debtor’s property may constitute a preference, although the property is not conveyed to the preferred creditor, if the effect of the transfer is to enable the creditor to receive out of the debtor’s estate a larger percentage of his claim than others of the same class obtain.</p> <p>2. Same — Voidable Preference — Intention to Give — Necessity.</p> <p>An intention on the part of the insolvent to give a preference by means of a transfer he makes is not indispensable to the existence of a voidable preference, under section 60 of the bankrupt law of July 1, 1898, e. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended (Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416]). It is sufficient that a transfer of the insolvent’s property is made, which has the effect to give a preference, and that the party who receives it has reasonable cause to believe that it is intended by the party who procures the transfer, or who gives to the transfer the effect of a preference, that it should have that effect, although the insolvent is innocent of that intention.</p> <p>8. Same — Voidable Preferences not Allowable as Set-Offs.</p> <p>Preferences voidable under sections 60a and 60b of the bankrupt law of July 1, 189S, c. 541, 30 Stat. .562 [U. S. Comp. St. 1901, p. 3445], as amended (Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St Supp. 1903, p. 416]), are not allowable as set-offs against claims of the preferred creditors under section 68 (30 Stat. 565 [U. S. Oomp. St. 1901, p. 3450]), on the ground that the preferences and the claims constitute mutual debts and credits.</p> <p>f 2. See Bankruptcy, vol. 6, Cent. Dig. §§ 252, 256.</p> <p>4. Same — Yoidable Preference — Facts.</p> <p>A company was hiring laborers to gather ties. The insolvent was operating stores and supplying the men. For many months an inspector had sent a pay roll once in about two weeks to the company, upon which the name of each laborer, his earnings, and the amount furnished him by the insolvent, appeared. The company had uniformly deducted the price of the supplies from the earnings of each man, had sent him a check for the balance, and had sent the insolvent a cheek for the supplies furnished. The insolvent owed the company more than $20,000, when, within four months of the filing of the petition in bankruptcy, it retained the amount owing the insolvent for the supplies furnished for three months and credited him with this amount, $2,210.73, on its claim against him.</p> <p>Held, this was a voidable preference, and the claim of the company against the estate of the bankrupt should be expunged unless it pays to the trustee the amount it thus withheld.</p> <p>(Syllabus by the Court.)</p>

This suit was brought in the United States Court for the Northern District of the Indian Territory by George W. Finley, Alfred F. Barnes, Estella Sta-ton, Mabel Staton, and Claudie Staton against Joseph Abner for the partition of a tract of land. The plaintiffs claim to be the owners of an undivided one-half of the property, and concede to the defendant the ownership of the remaining interest.

<p>1. Bankruptcy — Assignment of Claims — Effect.</p> <p>Within four months prior to the filing of a petition praying that the person against whom the petition was brought should be adjudged a bankrupt, the alleged bankrupt had made a general assignment for the benefit of creditors to one M. M., prior to the filing of the petition, purchased the claims of 12 creditors, which were nonnegotiable choses in action, under such circumstances that the alleged bankrupt might have claimed that the purchases were in his interest. Afterwards, and a few days before the filing of the petition, M. assigned each of said claims to a stranger, with the purpose of keeping alive 12 different claims in the hands of 12 different supposed creditors, so that the same might be enumerated as outstanding creditors with reference to any such petition. Held, that the claims so purchased merged in M., so as to become a single claim in equity, or are to be regarded as extinguished; that, in either case, the several persons to whom the claims were assigned acquired no equities superior to those of M., as the claims were nonnegotiable choses in action; and that the attempt by M. to create the condition described with reference to enumeration of creditors was an attempt to defeat the scheme of the statutes in bankruptcy, and therefore, in any view, noneffectual.</p> <p>2. Same.</p> <p>Within four months prior to the filing of a petition praying an adjudication in bankruptcy of the person against whom the petition was filed, the alleged bankrupt made an assignment for the benefit of creditors to M. M., within a few days prior to the filing of the petition, purchased with funds of the assigned estate several claims against the alleged bankrupt belonging to creditors who had not assented to the assignment; and thereafter, before the filing of the petition, M. executed formal assignments of each of said claims to a stranger, without receiving any consideration therefor. Held, that the claims, if not extinguished through the purchase by M., were by that purchase put under the control of the alleged bankrupt, who held the residuary interest in the assigned estate, and so continued, and therefore must be rejected in computing the enumeration of outstanding creditors with reference to such petition.</p>

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

<p>1. Bankruptcy — Circuit Courts of Appear — Jurisdiction—Petition for Review.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], providing that the several Circuit Courts of Appeal shall have jurisdiction in equity to revise in matters of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction, which power shall be exercised on due notice and petition by the party aggrieved, where, after a bankrupt’s estate has been closed without appointment of a trustee for the reason that the schedule showed no assets, an assignee of a judgment creditor who alone proved his claim applied to have the estate opened on the ground that the bankrupt had assets which he had fraudulently conveyed, on which petition the court discharged a restraining order and refused an injunction to prevent a further transfer of the assets, but appointed a trustee, such petitioner was a party aggrieved, and was therefore entitled to prosecute a petition for review of such order.</p> <p>2. Same — Trustees—Appointment.</p> <p>Where, at the first meeting of creditors of a bankrupt, called by the referee on November 21, 1899, no creditors were present and no trustee was appointed, and petitioner’s assignor was the only creditor who proved his debt, it appearing that there were no assets, and on January-28, 1902, the referee made his final report, reciting that the bankrupt’s estate had been fully administered so far as it had been referred to him, and that it was closed, the fact that more than a year elapsed thereafter before such creditor’s petition for the appointment of a trustee was filed, which showed that the bankrupt had died leaving assets fraudulently transferred, did not deprive the court of jurisdiction to open the proceedings and appoint a trustee under Bankr. Act July 1, 1898, c. 541, § 44, 30 Stat. 557 [IT. S. Comp. St. 1901, p. 3438], providing that, if creditors of a bankrupt shall not appoint a trustee at their first meeting the court shall do so.</p> <p>If 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p>

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

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

<p>1. Patents — Infringement—Coil Clasps foe Fastening Belts.</p> <p>The Jackson patent, No. 433,791, for a coil clasp for fastening belts, etc., claim 7, construed, and held infringed on rehearing.</p>

<p>1. Corporations — Notice—Knowledge of Officers.</p> <p>A corporation, having the right under a contract to purchase and own patents which should be granted to an inventor, if it should elect to do so before applications therefor were filed, and should pay the costs of obtaining the same, was charged with notice which required it to make such election where its president and some of its directors had knowledge that applications were to be filed by the inventor; and it was not necessary that its board of directors, as a body, should be given notice of the fact.</p> <p>2. Patents — Contract Giving Bight to Purchase — Abandonment.</p> <p>Where a corporation, having the right under a contract to purchase and own patents which might be granted to an inventor for a certain class of inventions, if it should so elect before applications were filed for such patents, and should pay the cost of obtaining the same — otherwise the inventor to have the right to obtain them in his own name and for his own benefit — made its election as to certain patents, and paid the preliminary fees, but afterwards advisedly failed to pay the final fees, such failure operated as an abandonment of its election, and left the inventor free to take the patents for his own benefit</p> <p>8. Preliminary Injunction — Sufficiency of Grounds.</p> <p>It is the practice of the federal courts to refuse an injunction pendente lite unless the ease shows beyond reasonable question the necessity for such intervention.</p> <p>f 1. See Corporations, vol. 12, Cent. Dig. §§ 1748, 1754.</p>

In Equity. Suit for infringement of copyright. On motion for preliminary injunction. This is a suit in equity by Sampson & Murdock Company, a corporation organized under the general laws of the state of Rhode Island, a citizen of that state, against Seaver-Radford Company, a corporation organized under the general laws of the commonwealth of Massachusetts, and a citizen of that commonwealth, having its usual place of business at Boston.

<p>1. Carriers — Special Services — Circus Trains — Liability for Negligence</p> <p>—Special Contract — Validity—Public Policy.</p> <p>Where a railroad company agreed to haul certain cars of the proprietor of a circus according to a special schedule, and for a price less than the regular 'rates for such service, the carrier’s servants having no right to direct the loading or unloading, which was in the exclusive charge of the employés of the eircus company, an express contract between the parties, exempting the carrier from liability for the negligence of its employés, and releasing the carrier from liability for loss and damage to any of the circus company’s property, menagerie, cars, or equipment while in transit, and to indemnify the carrier against damage or injury to any of the circus company’s officers, agents, performers, or employes, was not invalid, as contrary to public policy.</p> <p>2. Same — Pleading—Demurrer.</p> <p>Where a shipper brought suit on a special transportation contract against the carrier for damages to. his property, the contract providing that it was made in consideration of reduced rates granted to the shipper, he could not contend, on demurrer to the petition, that the statement in the contract that a reduced rate was given was false.</p> <p>3. Same — Action Ex Delicto.</p> <p>Where a circus proprietor brought suit in tort to recover damages for injuries to a circus train, transported over the line of defendant railroad company under a contract exempting the carrier from liability for negligence, and providing that the carrier’s obligation should be that of a private carrier only, a petition alleging such contract as matter of inducement only, and charging that the same was illegal and void as beyond the carrier’s corporate capacity, and that the transportation of shows, theaters, and circuses was a part of defendant’s regular business • as a carrier, was demurrable.</p> <p>4. Same — Character of Transportation — Private Carrier.</p> <p>A railroad company is not required, as a common carrier, to take a circus train, a part of which is loaded with wild animals, and transport the same over its line, but may refuse to transport such train, except under a special contract limiting its liability to that assumed by a private carrier.</p> <p>'h 4. See Carriers, vol. 9, Cent. Dig. § 648.</p>

<p>In Equity. On application for restraining order.</p>

<p>L Res Judicata — Questions Concluded by Judgment — Subsequent Suit on Different Cause of Action.</p> <p>Under the rule of the federal courts, a decision by the highest court of a state that the acceptance by a bank of a statute imposing taxes created a contract with the state by which the bank was exempt from local taxation during the term of its charter renders such question res judicata between the parties to the suit, and it cannot be again litigated between them in a subsequent suit, although it is on a different cause of action, arising under a law subsequently passed.</p> <p>2. Same.</p> <p>The fact that the judgment of a court might have been based upon a ground other than that on which it was actually based does not prevent the determination that such ground existed from being conclusive in a subsequent suit between the same parties, if its existence was in issue in the former suit, and properly formed the basis of the judgment therein.</p> <p>3. Same — Federal Courts — Following Rule of State Courts.</p> <p>Although a judgment of a state court would render a question res judicata in a subsequent suit between the same parties, under the rule of the federal courts, yet a federal court will not give it such effect where it would not be an estoppel under the rule of the highest court of the state.</p> <p>4. Taxation — National Banks — Kentucky Statutes.</p> <p>Act Ky. March 21, 1900 (Acts 1900, p. 65, c. 23), providing for the taxation of shares of national banks, is valid and enforceable, as applied to taxes for subsequent years, and a bank is not exempted from its operation because of its acceptance of the provisions of the Hewitt act of 1886 (Acts 1885-86, p. 140, c. 1233), which, as has been authoritatively determined, did not create an irrevocable contract with the state.</p> <p>IT 1. See Judgment, vol. 30, Cent. Dig. § 1508.</p> <p>IT 3. Gonclusiveness of judgments between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.</p>

<p>Action on Policy of Fire Insurance. Trial to the court by stipulation.</p>

<p>In Admiralty. Suit in rem to recover rent for wharf.</p>

<p>In Admiralty. Suit to enforce statutory lien for supplies.</p>

<p>1. Shipping — Charter Party — Disabling op Vessel by Stranding.</p> <p>A steamship was chartered for a voyage and return at a stipulated hire per month. The charter required her to be tight, staunch, and strong, and in every way fitted for the service. It also contained a provision that in the event of loss of time from “breakdown of machinery, stranding, fire, or damage preventing the working of the vessel for more than twenty-four running hours the payment of the hire shall cease until she be again in an efficient state to resume her service.” On the return voyage the ship siyanded, and was several days on the rocks, receiving such injury to her hull that two of her holds containing cargo were partly filled with water, and remained so through the remainder of the voyage, which was completed only by the use of extra pumps, which were procured at a port to which she deviated after the accident. Reid that, the vessel fiot having been in an efficient state after the stranding, no charter hire could be recovered after that time, except for the time taken in discharging.</p> <p>2. Sahe — Harter Act.</p> <p>The Harter Act, Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2940], does not affect the rights of parties under a charter party.</p> <p>1Í 2. Statutory exemption of shipowners from liability, see note to Nord-Deutscher Lloyd v. Insurance Co., 49 C. C. A. 11.</p>

<p>1. Federal Courts — Jurisdiction—Habeas Corpus.</p> <p>A court or judge of the United States has jurisdiction to grant a writ of habeas corpus for the purpose of reviewing the legality of the restraint of liberty of any prisoner held in custody under the authority of a state, whenever it is alleged that he is in custody for an act done or omitted in pursuance of a law of the United States, or in violation of the Constitution or of a United States law or treaty.</p> <p>2. United States Soldiers — Offenses—States—Civil Jurisdiction.</p> <p>Under Rev. St. § 1342, art. 59 [U. S. Comp. St. 1901, p. 955], providing that when any officer or soldier is accused of a capital crime, or of an offense against the person or property of any citizen of any of the United States punishable by the laws of the land, the commanding officer and the officers of the regiment, troop, battery, etc., to which the person so accused belongs, except in time of war, shall, on application duly made, use their utmost endeavor to deliver him to a civil magistrate in order to bring him to trial. Held, that such enactment was a distinct recognition by Congress of the general jurisdiction in time of peace of the civil courts of the state over persons in the United States military service accused of offenses against citizens of the state.</p> <p>3. Same — Homicide—Military Guard — Arrests.</p> <p>Where, on a writ of habeas corpus to obtain the discharge of two members of the United States army from an indictment for murder, .found by the courts of the state where the offense was committed, it appeared that the shooting of deceased occurred in the streets of a city, outside the military reservation, while petitioners were endeavoring to arrest deceased for depredations committed on such reservation, but the evidence was conflicting as to whether the shooting was done while deceased was endeavoring to escape or after he had stopped, thrown up his hands, and offered to surrender, the determination of whether the shooting was justifiable was within the exclusive jurisdiction of the state courts.</p> <p>1T1. Jurisdiction of federal courts in habeas corpus, see note to In re Huse, 25 C. C. A. 4.</p>

<p>In Bankruptcy. Motion to Dismiss Specifications of Objection to Discharge.</p>

Special proceeding, by motion and affidavit for a writ of mandamus to compel the respondent, a fraternal society, to restore the applicant to membership in the society, and to her alleged rights as holder of a certificate of life insurance, and to pay damages for her wrongful expulsion. Heard on a motion to remand the case to the state court in which it was commenced. Motion granted.

<p>1. Process — Service on Nonresident — Vermont Statute.</p> <p>The statutes of Verpiont do not authorize service of summons on nonresident defendants by leaving copies thereof with a codefendant who is served within the state, where there is no attachment of property or credits.</p> <p>2. Same — Nonresident Temporarily in State.</p> <p>Under the laws of Vermont, personal service of summons on a defendant within the state gives the court jurisdiction to render a personal judgment against him, although he is a nonresident, and was only temporarily within the state, unless his presence there was for a purpose which rendered him privileged.</p> <p>3. Parties — Action against Partners — Service on Single Defendant.</p> <p>The fact that a summons describes the defendants named therein as “partners” will not prevent the action from proceeding against one, who alone was served, where the declaration does not show a joint cause of action.</p> <p>Y 2. See Process, vol. 40, Cent. Dig. § 70.</p>

<p>1. United States — Conspiracy to Defraud — Public Hands — Fraudulent Entries.</p> <p>Where an indictment charged that defendants did unlawfully conspire together to defraud the United States out of a portion of its public lands on homestead entry, etc., such allegation included all proceedings as a whole necessary to complete the transfer of the title.</p> <p>2. Same — Pkesumptions.</p> <p>It would be implied from such, allegation that the affidavits and proofs were such as were required by law to entitle the entryman to a patent, and that such affidavits and proof were false.</p> <p>3. Same — Inconsistent Allegations.</p> <p>An allegation in an indictment that defendants did unlawfully conspire to defraud the United States out of a portion of its public land, by means “of procuring persons” to make false and fraudulent entries on such land, was not inconsistent with a further allegation as to the overt acts charged, showing that the false proofs and entries were made by defendants themselves, and not by others procured by them.</p>

<p>1. New Trial — Newly Discovered Evidence.</p> <p>Where alleged newly discovered evidence with reference to damages, alleged as a ground for a new trial, was in defendant’s possession, and might have been produced at the trial except for defendant’s oversight, and the evidence offered would not change the verdict to one for defendant, but would at most only mitigate the damages, the motiort will- be denied.</p> <p>V1. See New Trial, vol. 37, Cent. Dig. §§ 202, 206, 226.</p>

Application by the Importers to Review a Decision of the Board of United States General Appraisers. These proceedings were brought by William F. Brennan to review a decision of the Board of General Appraisers in Re Brennan, G. A. 5,307 (T. D. 24,320), which affirmed the assessment of duty by the collector of customs on certain so-called “pickled limes,” or “limes in brine,” imported by him at the port of Boston.

<p>At Daw. Actions for libel. On motions for new trial.</p>

<p>In Bankruptcy. On certificate from special referee recommending adjudication.</p>

<p>In Admiralty. Suit against tug for injury to tow from collision.</p>

<p>Appeal by the Importer from a Decision of the Board of United States General Appraisers.</p>

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

<p>1. Bankruptcy — Proceedings against Debtor — Stay.</p> <p>Where within four months prior to the filing of an involuntary bankruptcy petition a creditor of the alleged bankrupt had brought suit in a state court on a debt dischargeable in bankruptcy against the bankrupt, and threatened to obtain an attachment, and, in order to prevent the attachment, the bankrupt gave bond with surety, and to protect the surety had pledged its property, the bankruptcy court would restrain the creditor from proceeding therewith until after adjudication.</p>

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

<p>1. Maritime Liens — Supplies—Distinction between Cases Where Sup- . plies were Ordered by Owner and Where by Master.</p> <p>The rule restated that there is a broad difference, in the facts necessary to create a lien for repairs or supplies furnished to a vessel in a foreign port, between repairs or supplies ordered by the master, in which case, their necessity being shown, everything else is presumed in favor of a lien; but, when they are ordered by the owner, whether registered or pro hac vice, while there may be an agreed lien under the modern American rule, there is no presumption in its favor.</p> <p>2. Same — Supplies Ordered by Master — Necessity oe Consulting Owner.</p> <p>Where supplies furnished a vessel in a foreign port on the order of the master are such as are used in the ordinary navigation of the vessel, the necessity for which must have been known to the owner, there is not the same necessity of consulting the owner as where extraordinary expenditures are required.</p> <p>8. Same — Demised Vessel — Conditions oe Charter.</p> <p>It is immaterial, to the right to a lien for ordinary supplies furnished on the order of the master of a vessel being navigated by a charterer, whether or not there is a formal charter party expressly providing that the charterer shall make all disbursements and protect the vessel from liens, since that is an implied condition of every such charter.</p> <p>4. Same — Authority oe Master.</p> <p>The master of a vessel, although she is being navigated by a charterer who is bound to make all disbursements and to protect the vessel from liens, has authority, as representing, not only the owner and charterer, but also the crew and passengers and cargo, to procure the necessary wharfage at ports other than the home port, and also such provisions and other supplies as are necessary for immediate or everyday use in the navigation of the vessel. Those furnishing such wharfage or supplies on the credit of the vessel are entitled to a lien therefor; and it is immaterial whether or not they knew of the charter or its conditions, it being a presumption of law, from consideration of the convenience and necessities of commerce, that the owners consented that the ordinary requisites of the voyage should be obtained on the credit of the vessel.</p> <p>1Í1. Maritime liens for supplies and services, see note to The George Dumois, 15 C. C. A. 679.'</p>

This was a suit brought by the Wyoming Railway & Iron Company against Edward S. Hosmer, Addison A. Hosmer, Amanda S. Hosmer, David S. Wegg, and the Colorado Fuel & Iron Company, to enforce specific performance of a contract for the sale of certain mining claims and real property appurtenant thereto in Laramie county, Wyo.

<p>"1. Maritime Liens — Supplies—Presence op Owner.</p> <p>Where the place of business of a corporation which is the owner of a vessel is at a port in a state other than that of its creation and legal domicile, and its officers are there present, to the knowledge of one who furnishes supplies in that port the master has no authority to impress a lien on the vessel for such supplies.</p> <p>'2. Same — State Statute — Foreign Vessels.</p> <p>The rule that a proceeding cannot be maintained to enforce a lien under a state statute for supplies furnished a seagoing vessel owned by a corporation of another state is not rendered inapplicable by the fact that she was enrolled at the port where the supplies were furnished, where it is not shown that the person furnishing the same was misled by such fact into believing her a domestic vessel.</p> <p>T1. Maritime liens for supplies and services, see note to The George Dumois, 15 C. C. A. 679.</p> <p>IT 2. Maritime liens under state statutes, see note to The Electron, 21 C. C. A. 21.</p>

<p>1. Decree — Impeachment—Denial or Authority or Counsel.</p> <p>Duly authorized counsel instituted a suit for the complainant, during the progress of which an order of severance was made, and leave was given to file a new bill against certain of the defendants, which was done. The cause on such bill proceeded to a decree in complainant’s favor, which was reversed on appeal, being conducted throughout by the same counsel. Held, that complainant could not challenge the validity of the decree of the appellate court on the ground that the trial court was without power to make the order of severance, and consequently the subsequent proceedings thereunder constituted a new suit, in which the counsel thereafter appearing had no authority to represent it without a new and express employment.</p> <p>2. Same — Power oe Court to Set Aside.</p> <p>A decree, although final, remains under the control of the court during the term at which it was rendered; and where the court suspended the entry of a decree which had been previously signed, but not entered on the journal, and proceeded thereafter to reform the pleadings and hear the cause anew, with the acquiescence of the parties, such decree is of no validity, although it was by mistake filed by the clerk.</p>

<p>1. Inteen ax. Revenue — Legacy Taxes — Vested ok Contingent Remainder.</p> <p>A testator who died in March, 1901, by his will bequeathed his residuary estate in trust, the income to be paid to his wife during her life, with remainder to his children living at the time of her death, and the lawful issue of any deceased child or children; such issue taking the share only their parent would have taken if living. Held, that the remainder so created was not vested, not being limited to “persons in esse and ascertained,” but was contingent, being limited to persons who could not be ascertained until the death of the wife, and that such bequests were not subject to the legacy tax imposed by section 29 of the war revenue act of June 13, 1898, c. 448, 30 Stat. 464 [U. S. Comp. St. 1901, p. 2307]; the wife being still living at the time of the taking effect of the amendment of June 27, 1902, c. 1160, § 3, 32 Stat 406 [U. S. Comp. St Supp. 1903, p. 282], exempting from the tax “any contingent beneficial interest not absolutely vested in possession or enjoyment” prior to July 1, 1902.</p>

<p>1. Internal Revenue — Legacy Taxes — Vested or Contingent Remainder.</p> <p>The interest of a daughter in her father’s estate, which, by the terms of his will, she was not to take unless she survived her mother, was contingent, and not vested, and did not become subject to legacy tax, under section 29 of the war revenue act of June 13, 1898, c. 448, 30 Stat. 464 [U. S. Comp. St. 1901, p. 2307], where her 'mother was living July 1, 1902, after which time contingent beneficial interests vested in possession or enjoyment were exempted from the tax by the amendment of June 27, 1902, c. 1160, § 3, 32 Stat. 406 (U. S. Comp. St. Supp. 1903, p. 282]..</p>

<p>1. Customs Duties — Classification—Boeate of Manganese — Boeate Mateeial — Chemical Compound — Xoscitub a Sociis.</p> <p>The enumeration iñ paragraph 11, Tariff Act July 24, 1897, c. 11, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1627], of “other borate material,” refers only to borate materials found in nature in a raw condition, such as the “borates of lime or soda” included in the same provision, and does not embrace borate of manganese, or bormangan, which is a manufactured article made from manganese and borates of lime or soda, and which is held to be dutiable as a chemical compound or salt under paragraph 3 of said act, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1627].</p>

<p>1. Customs Duties — Liability of Consignees — Unauthorized Shipment-Merchandise not “Imported.”</p> <p>Certain merchants ordered for importation a quantity of merchandise of a kind not subject to duty. In response to the order a shipment was consigned to them of an article of a different character, which was subject to a high rate of duty, and which they refused to accept or to make themselves responsible for in any way. Held that there was no colorable authority for the shipment of the merchandise, and that the consignees should not be considered as having “imported” the merchandise within the meaning of section 1, Customs Administrative Act of June TO, 1890, e. 407, 26 Stat. 131, 1 Supp. Rev. St. 744 [U. S. Comp. St. 1901. p. 1886], providing that all merchandise “imported” into the United States shall for the purposes of the act “be deemed and held to be the property of the person to whom the merchandise may be consigned.”</p> <p>2. Same — Consignment without Consent of Consignee.</p> <p>Where merchandise is shipped to parties in the United States, which is of a different character from that ordered, it is a consignment made without the consent of the consignees, within the meaning of article 1231, Customs Regulations 1899, prescribing that, when the proceeds from the sale of unclaimed merchandise are not sufficient to pay the duties and other charges thereon, “the consignees are liable for such duties, unless it be shown that the consignment was made without their consent.”</p> <p>3. Same — Unauthorized Shipment — Obligation of Consignee to Make Entry.</p> <p>Where merchandise is shipped to parties in the United States without their authority, they are under no obligation, in order to free themselves from liability for duty, to make entry of the merchandise or to take possession of it for any purpose.</p>

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

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

<p>1. Patents — Infringement—Penholders.</p> <p>The Tower patent, No. 378,223, for a penholder having a sleeve of cork at its lower end, held not infringed.</p>

<p>1. Patents — Infringement—Machine fob Coating Confectionery.</p> <p>The Holmes patent, No. 492,205, for a machine for coating confectionery, claim 1, covering a combination of a dipping mechanism with a jarring device for removing surplus coating from the drops, was not anticipated, and is entitled to a liberal construction as embodying the first successful automatic machine for coating cream cores with chocolate, and is infringed by the machine of the Weeks patent, No. 634,633.</p> <p>2. Same — Chocolate Dipping Tray.</p> <p>The Gousset patent, No. 526,968, for a chocolate dipper, claim 4, was not anticipated, and is valid; also held infringed.</p> <p>3. Same — Chocolate Coating Machine.</p> <p>The Walter patent, No. 533,974, for a chocolate dipping or coating machine, claim 1, held infringed.</p>

<p>1. Bankruptcy — Jurisdiction of Court — Determining Adverse Ownership-of Property.</p> <p>The fact that property was in the actual possession of a bankrupt at the time of the filing of the petition, and was by him surrendered with his other property to a receiver or custodian ad interim appointed by the court, places such property in custodia legis, and gives the court of bankruptcy jurisdiction to determine its ownership as between the trustee-subsequently appointed and an adverse claimant; and such jurisdiction-is not affected by the fact that the receiver, acting without authority, surrendered possession of the property to the claimant.</p> <p>2. Same — Property Wrongfully Taken from Custody of Court.</p> <p>One who has obtained possession of goods from a receiver appointed! by a court of bankruptcy, who had no authority to surrender the same, by such intermeddling with property in the custody of the court submits-himself to its jurisdiction for all purposes properly connected with proceedings to compel him to restore the property or its value, and where he has disposed of it, claiming to be the owner, the court may determine the-question of ownership in the same proceeding as a matter affecting the-propriety of entering a decree against him for its value.</p> <p>3. Same — Adverse Claimant of Property — Burden of Proof.</p> <p>On the question whether a shipment of goods to an insolvent company a short time prior to its bankruptcy was pursuant to a sale, or whether the transaction was such that the shipper remained the owner, he has the burden of proof as against the trustee in bankruptcy, and his claim to-ownership will not be sustained unless he fully and fairly discloses all the facts bearing on the nature of the transaction, and such facts show clearly that a sale was not intended at the time.</p> <p>4. Same — Bailors as Adverse Claimants.</p> <p>Bailors permitting their goods, in the hands of an insolvent bailee becoming bankrupt, to pass into the custody of the receivers or trustees in-bankruptcy,. cannot occupy the attitude of adverse claimants in determining the jurisdiction of the court</p> <p>5. Same — Sales—Retaining Title — How Determined.</p> <p>The fact that a merchant ships goods to a customer, but consigned to himself, is not conclusive of a title reserved for future scrutiny of the-customer's financial condition, if there be other and equivocal facts tending to show an actual sale and a resort to this equivocal method for the purpose of denying a sale in case of bankruptcy. There must be good faith, and no sinister design, in the transaction.</p>

In Equity. Suit to enjoin the diversion of water from a stream. On final hearing. Since the submission of this cause the original complainant, Arthur Rodgers, died, and the suit has been revived in favor of the executrix of his will, but the references will be made to the original parties to the suit. There is no ease made out against the defendant the Lovelock Mill Company, and it should be dismissed from the case.

In Admiralty. Cross-actions in the District and Circuit Courts, respectively, consolidated by consent and heard before Judge SPEER, as judge of both courts, without a jury.

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

<p>1. Master and Servant — Injuries to Servant — Rules—Evidence—Weight.</p> <p>Where, in an action for injuries to a servant while cleaning a carding machine, the evidence as to whether plaintiff was instructed tó clean the machine while in motion was conflicting, and plaintiff’s counsel argued to the jury that it was unreasonable to believe that plaintiff, after being expressly forbidden to clean the machine while in motion, as defendant testified, would have proceeded within a few minutes to disobey such instruction, a verdict in favor of plaintiff on such issue should not be set aside.</p> <p>2. Same — Assumption of Risk.</p> <p>Plaintiff, while engaged in cleaning a wool carding machine while in motion, was injured by having his hand caught between the cylinder and one of the top rolls of the machine. The shaft which plaintiff was cleaning projected beyond the frame of the machine, and at the end thereof was a gear over which a chain ran. Wool having collected on the shaft inside the gear and outside the cylinder, plaintiff attempted to take the wool off the shaft as he was told to do. The wool got caught in the cylinder and dragged his hand in sidewise. Held that, while the risk of getting his hand caught in the gear and chain was obvious, plaintiff not having placed his hand where the rolls or cylinder would catch it, the risk that it would be drawn in by the wool caught in the cylinder was not so obvious that plaintiff assumed the same as a matter of law.</p> <p>3. Same — Contributory Negligence.</p> <p>Where plaintiff, who was 18 years of age, and had worked in the carding room of a factory only 3 days prior to his injury, was instructed by his superior to lift up his sleeve and clean a wool carding machine while in motion, and to look out for the chain at the end of the shaft, which danger he avoided, but he pulled off the wool from the shaft in such a manner that it became caught in the cylinder and drew his hand in, he was not thereby guilty of contributory negligence as a matter of law. i</p> <p>T 2. Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p>

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

<p>1. Federal Courts — Removal oe Causes — Undetermined Motions.</p> <p>Where, at the time a petition for the removal of a cause was filed, a motion to make the complaint more definite and certain was pending and undetermined in the state court, such motion was transferred to the federal court with the record, to be there determined.</p> <p>2. Same — Time for Answering — Extension.</p> <p>The removal of a cause to the federal court did not extend the time for answering the complaint.</p> <p>3. Same — Determination.</p> <p>The time for answering a complaint in a case removed to the federal courts from a state court is fixed by ascertaining the number of days which had elapsed between the service of the complaint in the state court and the date of the removal, suspending the time between such removal and the date the record reaches the federal court, which then begins to run from the day of the entry in such court, and, as provided by the circuit court rules (Fourth Circuit), the defendant will be in time if he serves his answer on a rule day within 20 days thereafter.</p> <p>4. Same — Motion to Remand — Extension of Time.</p> <p>Where, after the removal of a cause to the federal court, a motion to remand is made, such motion extends the time to answer until the rule day next succeeding the determination thereof.</p> <p>5. Same — Failure to Answer — Default—Judgment—Vacation—Terms.</p> <p>Where, after the removal of a cause to the federal court, a motion to remand was made, which was determined before the hearing of a motion to make the complaint more definite and certain, which had been filed in the state court and removed with the record, and by reason of the pendency of such motion undetermined defendant filed no answer within the</p> <p>H 2. See Removal of Causes, vol. 42, Cent. Dig. § 249. time required, and judgment was taken by default, such judgment will be set aside on terms, under Code S. C. § 195, providing that tbe court in its discretion, and on such terms as may be deemed just, may allow an answer to be made after the time limited by the Code has expired.</p> <p>6. Same — Carriers—Injuries to Passengers — Complaint—Definiteness.</p> <p>Where, in an action by a passenger against a carrier for injuries, his complaint alleged that the train on which he was riding was derailed, and that he was injured in consequence thereof, it alleged a sufficient cause of action, and was not subject to a motion to make it more definite and certain; the burden being on the carrier to show that the derailment did not occur from its negligence or the negligence of its servants.</p>

<p>On Motion to Expunge an Item in Plaintiff’s Bill of Particulars, and Motion for More Specific Statement of Such Item.</p>

<p>1. Collision — Excessive Claim — Costs.</p> <p>A libelant, who recovers damages for a collision for which his own vessel was not in fault, is entitled to costs, although the recovery is much less than the amount claimed, where there is no evidence that such claim was made fraudulently.</p>

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

<p>1. Accommodation Note — Diversion—Holder for Value.</p> <p>Where defendant’s note was transferred to plaintiff before maturity in settlement of a pending suit, plaintiff’s counsel being told that it had been given by the maker to the payee in settlement of an account between them, plaintiff was a bona fide holder for value, and it was therefore no defense that the note was accommodation paper, or that it had been diverted.</p>

<p>1. Shipping — Charter—Commencement of Voyage.</p> <p>A steamer under a time charter was delivered to the charterer at Seattle, her first voyage to be to an Alaskan port. • She took on some coal at Seattle, and then proceeded to other ports, where she took on cargo and a further supply of coal; proceeding thence to Alaska, and returning to Seattle, where she was again taken in charge by the charterer. Held, that the voyage began at Seattle, and not at the last port of loading.</p> <p>2. Same — Damages Claimed by Charterer.</p> <p>A time charterer who compromised and settled a claim for demurrage against a consignee cannot assert a claim for the balance which was in dispute, against the vessel, on the ground that he could have recovered in full but for the master’s misconduct.</p> <p>3. Same — Deductions prom Charter Hire.</p> <p>Evidence considered, and held not to establish the claims of a charterer to various deductions from the charter hire of a steamer.</p>

<p>In Bankruptcy. On petition for discharge, and specifications of objection thereto.</p>

<p>1. Habeas Corpus — Federal Courts — Prisoner in Custody under Criminal Charge by State.</p> <p>A person in prison under a conviction by a state court on an indictment charging him with being accessory to a murder, and pending an appeal from such conviction, is not “in custody in violation of the Constitution or of a law or treaty of the United States” within the meaning of Rev. St. § 753 [U. S. Comp. St. 1901, p. 592], and such section does not authorize his discharge on habeas corpus by a federal court, on the ground that during his trial he was deprived of rights guarantied him by the federal Consti-</p> <p>H 1. Jurisdiction of federal courts on habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.</p> <p>See Habeas Corpus, vol. 25, Cent. Dig. § 44, tution. However erroneous the judgment of conviction may have been, his imprisonment is legal until the charge made in the indictment has been finally adjudicated by the state courts.</p> <p>2. Same.</p> <p>A writ of habeas corpus from a federal court cannot be made to perform the office of a writ of error to review a judgment of conviction in a state court in a criminal case of which it had jurisdiction; and, even where it is claimed by the defendant that some right under the Constitution of the United States has been denied him, a. federal court will not ordinarily interfere by writ of habeas corpus, but will leave him to his remedy by direct proceedings for review in the state courts, and by writ of error from the Supreme Court of the United States if his claims should be there decided adversely.</p>

<p>1. Damages — Costs in Former Proceedings.</p> <p>A suit for the possession of certain real estate had been discontinues by a government officer, who had previously seized the property for violation of law, but who, without right, continued in possession after the discontinuance. Held, in an action for damages for thus wrongfully retaining possession, that the amount of costs in the former proceeding, incurred by the plaintiff in the latter case, formed no part of the damages which were recoverable.</p> <p>2. Public Officers — Liability—'Wrongful Possession of Private Property —Damages.</p> <p>Where a government officer, who has seized property used for illicit purposes, retains possession of it without color of process after his right to such possession has ceased, he is liable to the owners of the property for the damages suffered by them through such wrongful possession, even though he acted in good faith.</p> <p>3. Same — Exemplary Damages — Wanton Disregard of Private Rights.</p> <p>Where a government officer injures a citizen by any official act, he is, in addition to his liability for actual damages, subject to exemplary or punitive damages, if he proceeds in malicious or wanton disregard of the citizen’s, rights.</p> <p>f 2. Torts of public officers, see note to Mayor, etc., of City of New York v. Workman, 14 C. C. A. 534.</p>

<p>1. Peeeiminaby Injunction — Ex Paste Affidavits.</p> <p>It is a general though not universal rule that a preliminary injunction will not be granted on ex parte affidavits unless in a clear case. The rule admits of important exceptions including, among others, cases in which the function of the preliminary injunction is merely to maintain the status quo until final decree, where comparatively great injury may result from the withholding, and comparatively little can flow from the granting, of such injunction. In such cases the court regards with just discrimination the balance of convenience and hardship, and, in the absence of a final determination of right, aims so to resolve for the time being whatever doubt may exist as to do the most good and the least harm.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — District Courts — Jurisdiction.</p> <p>Bankr. Act July. 1, 1898, c. 541, § 2, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420], conferring on the District Courts of the United States, in the several states, jurisdiction at law and in equity sufficient to enable them to exercise original jurisdiction in bankruptcy, and cause the assets of bankrupts to be collected, reduced to money, and distributed, and to determine controversies in relation thereto, applies to the powers of receivers or the marshal to take charge of property of bankrupts in the possession of third persons after the filing of the bankruptcy petition, and until it is dismissed or a trustee has qualified, when such possession is necessary for the preservation of the estate.</p> <p>2. Same — Equity Jurisdiction.</p> <p>Under Bankr. Act, § 67e, as amended by Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 800 [U. S. Comp. St. Supp. 1903, p. 417], providing that, for the purpose of recovery of property of a bankrupt fraudulently transferred, any court of bankruptcy, and any such court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction of a suit to recover the same, a trustee in bankruptcy was entitled to maintain a suit in equity for an accounting in the United States District Court against fraudulent transferees of certain accounts of the bankrupt, consisting of a large number of items, the actual value of which could only be ascertained by an accounting, though complainants knew the face value of the accounts.</p>

<p>L Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Where plaintiff sued defendant insurance company to recover dues and assessments amounting to $1,527.25, together with interest, in all amounting to $2,346.50, and prayed judgment against defendant “for the sum of $2,346.50, being the amount of dues and assessments paid to date, with interest” to September 1, 1900, and for interest on the same from that date, and for costs, the fact that the interest was added to the principal did not ehange it to principal, so as to justify a removal of the cause to the federal courts on the ground that the parties were citizens of different states, and that the amount involved exceeded $2,000, exclusive of interest and costs.</p> <p>If 1. Jurisdiction of circuit courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 G. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>See Removal of Causes, vol. 42, Cent. Dig. § 130.</p>

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

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

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

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. This is an appeal from a final decree entered August 20, 1903, in favor of the libelant, for $1,337.71, being the amount found due upon a policy of insurance issued by the respondent to insure the owners of the lighter Stamford. The circumstances attending the stranding of the lighter have been considered by this court in the action brought by this libelant against the tug Quigley and the Barber Asphalt Company. The facts will be found in the opinion filed by the District Court in that ease. 123 Fed. 161. The opinion in the case at bar is reported in 123 Fed. 157.</p>

<p>On petition for review.</p>

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

<p>Appeals from the District Court of the United States for the Southern District of New York. These causes come here upon appeals from decrees awarding certain proportions of losses of particular and general average underpolicies of marine insurance upon libelant’s steamer City of Worcester, which struck on Cormorant Rock, outside New London Harbor, tearing out a part of her forward bottom, and was subsequently stranded by her master near Green’s Harbor, not far from New London. The opinion of the District Court is reported in 118 Fed. 307.</p>

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

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

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

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