Volume 130 — Federal Reporter

<p>1. Conspiracy to Defraud the United States — Statutes—Construction.</p> <p>Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], providing that if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all shall be subject to imprisonment, etc., should be construed as declaring not only against conspiracies to commit offenses, but also to conspiracies to defraud the United States, and to punish such conspiracies when supplemented by an overt act, though the wrong has not become effectual in its purpose.</p> <p>2. Same — Subsequent Rights — Creation.</p> <p>Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], prohibiting and providing for the punishment of conspiracies to defraud the United States, applies with equal force to rights of the United States created subsequent to its passage, as well as those previously existing.</p> <p>3. Same — Conspiracy to Defraud.</p> <p>The term “defraud,” as used in Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], prohibiting and providing for the punishment of conspiracies to defraud the United States in any manner whatsoever on the doing of any act, by any of the conspirators, intended to effect the object of the conspiracy, should not be construed as limited only to frauds respecting property rights, but to include the deprivation of a risht by deception or artifice.</p> <p>4. Same.</p> <p>Defendant H., desiring to procure appointment as a letter carrier, a position in the classified civil service of the United States, unlawfully agreed with defendant O. that the latter should falsely impersonate H. at a civil service examination, and do all acts required by the examiners, and sign H.’s name to the examination papers to be delivered to C. for examination while he should impersonate H. C., in pursuance of such conspiracy, gained entrance to the examination, and falsely signed H.’s name to a declaration sheet which was required to be in the handwriting and on the honor of the applicant. Held, that such facts constituted a conspiracy to defraud the United States, prohibited by Rev. St $ 5440 [U. S. Comp. St. 1901, p. 3676].</p>

<p>1. Bankruptcy — Personal Assets — Appeal—Findings.</p> <p>Where there were no express findings of fact either by the referee or the District Court, on an issue as to whether certain property had in fact been transferred by a partner to the firm, which had been adjudged a bankrupt, the Circuit Court of Appeals, on appeal from a decision that such property was a part of the bankrupt’s assets, was not aided in its consideration of the case by the weight which ordinarily attaches to the findings of courts of first instance.</p> <p>If 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>2. Same — Evidence.</p> <p>In proceedings for the administration of the assets of a bankrupt firm of brokers, evidence reviewed, and held insufficient to authorize a finding that one of the members of such firm transferred to it certain seats in different exchanges of which he was a member.</p> <p>3. Same.</p> <p>Where certain assets, belonging to one of the members of a firm of brokers, which subsequently became bankrupt, were not mentioned in the partnership articles, and such partner’s testimony that such of the assets as were owned prior to January 1, 1899, were his individual property, and were not transferred to the partnership, was undisputed, a finding that such assets belonged to the firm was error.</p>

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

<p>1. Federal Courts — Jurisdiction—Diverse Citizenship — Receivers—Right to Sue — Successors.</p> <p>Where, after a foreign receiver, appointed by a state court, had brought suit in the Circuit Court of the United States sitting in Louisiana against a city of that state, his authority to prosecute the suit was annulled by the Supreme Court of the state, the Circuit Court had no jurisdiction to permit the continuance of such suit by a citizen of Louisiana, appointed as such receiver’s successor after his death.</p> <p>2. Same — Authority to Sue.</p> <p>Where a receiver, appointed by a state court, was authorized to demand and receive any and all sums which may have been or might thereafter be collected or received on account of a certain police board tax for certain years, and thereafter the authority was enlarged so as to include all the assets, claims, and taxes owned and collected by or due to such board prior to 1879, such authority was not sufficient to give the receiver the right to sue to recover such assets’or claims.</p> <p>Tf 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. O. A. 298.</p> <p>12. 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>1. Libel — Damages—Evidence on Question of Reeutation.</p> <p>Where plaintiff in an action for libel took the stand and testified as to his standing and reputation in the community, a cross-examination, which elicited the fact that he had been a gambler for large stakes, and other facts which would tend to affect his reputation, was proper and pertinent to the issue on the question of damages, and the exclusion of such cross-examination from the jury on such issue, while the direct testimony was allowed to stand, was error.</p> <p>2. Aepeal — Assignment of Eeeob — Sufficiency.</p> <p>The rule of the Circuit Court of Appeals which requires an assignment of error relating to the charge of the court to state distinctly the grounds of objection, does not require the court to refuse to consider an assignment which merely sets out the language objected to, where the objection as clearly appears from such language as it would if the assignment were further elaborated.</p>

In Equity. Suit for infringement of letters patent No. 595,688 for a warp stop-motion for looms, granted to William H. Baker, December 21, 1897. On final hearing.

<p>1. Shipping — Charter Hire under Time Charter — Loss op Time Waiting por Docking.</p> <p>A time charter for a steamer which was employed in West Indian waters provided that she should be docked, cleaned, and painted at least once every six months if the charterer thought necessary, hire to be suspended until she was again in proper state for service. By a subsequent amendment it was provided that the docking should be done only in United States ports where there were facilities, to which she should be sent by the charterer on his own account, who should also pay for all time lost in shifting ports. The charterer sent the vessel to Mobile to be docked, and on her arrival there notified the master that she was then off time, which notice the master refused to accept, as she had not docked, and could not for want of facilities, the only dock available being out of repair. After a delay of nearly a month she proceeded to New Orleans,' where she was docked. Held, that the charterer was liable for charter hire during the delay at Mobile, it being his duty under the contract to determine when she should be docked, and to take her to a port where there were facilities.</p> <p>2. Same.</p> <p>The charterer was not relieved from the payment of hire because, while waiting at Mobile for the dock to be put in condition, the owners utilized the time to make some repairs on the vessel, where she remained in a condition to sail on short notice.</p>

<p>In Admiralty. Suit against tug for loss of tow.</p>

<p>1. Interstate Commerce — Attempted Regulation by State Commission.</p> <p>A state railroad, commission is without power to require a railroad company to cancel and abolish “proportional tariffs” which apply only to interstate or foreign shipments, and which were adopted with the approval of the Interstate Commerce Commission, to prohibit the company from permitting export shipments of grain to be stopped in transit within the state for cleaning, grading, etc., or by similar orders to attempt to regulate interstate or foreign commerce.</p> <p>2. Same — Invalid Orders — Injunction.</p> <p>Complainant owned a large grain elevator at Ft. Worth, Tex., and was engaged largely in buying grain in other states for shipment and export, shipping the same over the defendant railroad company’s lines to Ft. Worth, which was its southern terminus, transferring it there to its elevator for cleaning and grading, and then reshipping, availing itself of the proportional tariff on through shipments put in force by the defendant and other connecting companies. The Texas Railroad Commission, also made defendants, without notice to either complainant or the railroad company entered orders requiring the company to cancel its proportional tariffs, prohibiting it from permitting grain shipped on export billing to be transferred into complainant’s elevator, and requiring it to cancel any contracts it might have with complainant whereby it had undertaken to pay any sum of money for any purpose whatever. It was further required to file a notice of compliance with such orders by a given time, under penalty of the institution of “such proceedings as may be found proper and adequate to enforce compliance” therewith. Complainant alleged in its bill that defendant railroad company had given notice of its intention to obey such orders, being moved thereto, as alleged, by the fact that it had other interests pending before the commission of great importance to itself. Held, such facts not being controverted, that complainant was entitled to a preliminary injunction restraining the commission from enforcing its orders until the final hearing, as operating to cause complainant irreparable injury in its business.</p>

<p>1. Wbohgfol Death — Actions—Foreign Administrator — Right to Sue.</p> <p>An action for the wrongful killing of a servant in the state of Wyoming, brought under a statute of that state, cannot be maintained in the courts of Colorado by.an administrator appointed in Colorado.</p> <p>T1. See Death, vol. 15, Cent. Dig. § 36.</p>

<p>1. Federal Courts — Equity Jurisdiction — Action against Executors.</p> <p>An unsecured creditor of a deceased person having a mere legal demand which has not been reduced to judgment is not a cestui que trust in such a sense as to be entitled, in the absence of fraud, gross wrong, or unreasonable delay on the part of the decedent’s executor, to maintain a bill in equity in the federal circuit court against such executor to compel an accounting.</p> <p>2. Same — Decedents’ Estates — Settlement.</p> <p>Federal courts have no original jurisdiction in respect to the administration and general settlement of the estates of deceased persons.</p> <p>3. Same — Suits at Law.</p> <p>Though a creditor of a deceased person may establish the validity of his claim by a suit at law in the federal courts, provided requisite jurisdictional elements are present, yet on recovering judgment, if the same is not paid, the creditor must ordinarily seek relief by a marshaling of assets in the state courts having jurisdiction of the settlement of estates.</p> <p>4. Same — Conflicting Jurisdiction.</p> <p>Where, at the time a creditor of a deceased person filed a bill in equity in the federal court to compel an accounting by the executor, a suit in equity had already been begun in the state court under a state statute for a similar purpose, to which complainant was not made a party, the state court haying first assumed jurisdiction, complainant’s bill was not maintainable.</p> <p>f 4. Conflict of jurisdiction with state courts, Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 356.</p>

<p>1. Collision — Vessel Lying at End oe Piee — New Yoek Statute.</p> <p>Tlie New York statute proMbiting vessels from lying at the end of a pier in tbe North or East river, and providing that “any vessel * * * so lying shall not be entitled to claim or demand damages for any injury caused by any vessel entering or leaving any adjacent pier,” is penal in character, and is not to be extended by construction; and tbe exemption from liability it gives extends only to injuries to a vessel so lying which result from her obstructing the entrance to an adjacent pier. Where a canal boat lying at the end of a pier in East river headed to the northward was struck on the bow and injured by a barge in tow alongside a tug, which the tug was intending to leave at the end of the pier to be worked around to the south side by hand, the statute affords the tug no protection from liability.</p>

<p>1. Master and Servant — Injuries to Servant — Pleading.</p> <p>Where the first four counts of a declaration charged that plaintiff, a helper engaged in assisting in changing the dies on a press, was injured by the fall of the plunger from an unknown cause, and such fall might have been due either to the negligence of a fellow servant in charge of the press or to some cause which could not reasonably have been anticipated and guarded against by the master, such counts did not state a cause of action.</p> <p>2. Same — Dutt of Servant.</p> <p>Where plaintiff, a mere laborer called on to exert his strength in changing a heavy die, part of a power press, was injured by the falling of the plunger, he was not necessarily, chargeable with the duty of a close inspection of the condition of the machinery near which he was set to work, but was entitled to assume that the person in immediate charge of the machine had properly performed his duty to make it safe before requiring plaintiff to work about it.</p> <p>3. Same.</p> <p>Where a declaration in an action for injuries to a laborer directed to assist in changing heavy dies, part of a power press, charged negligence in the employment of an incompetent die setter, and alleged that such person negligently directed plaintiff to assist in changing the dies without taking proper precautions to prevent a fall of the plunger, and that the plunger,' from some unknown cause, fell and injured plaintiff, such allegations sufficiently stated a cause of action, since the competency of the die setter, and whether it was negligent to change the dies without effectually providing against the fall of the plunger, were for the jury.</p> <p>H 2.' See Master and Servant, vol. 34 Cent. Dig. §§ 713, 714</p>

<p>1, Railroads — Accident at Crossing — Contributory Negligence.</p> <p>Plaintiff stepped upon a railroad crossing at a small station directly in front of a train which was moving eastward at a speed of 50 miles an hour, and was struck and injured. It was in the daytime, and he testified that he stopped momentarily 6 feet north of the track, and listened and looked in the direction from which the train was approaching, but could not see because of smoke and steam blown across the track by a strong northwest wind from a pumphouse 200 feet west of the crossing, the smokestack of which was 25 feet high and 18 feet north of the nearest rail. He also testified that he did not hear the train nor any whistle. The engineer testified that he saw plaintiff apparently about to cross the track, and gave two alarm whistles. Eighteen out of 19 witnesses for both parties also testified that they heard such whistles. A number of other witnesses testified that they looked along the tracks westward, and readily and plainly saw the approaching train, and there was no testimony except plaintiff’s that the view was obstructed. Held that, in view of themhvsieal facts, as well as such testimony, the testimony of plaintiff that he stopped and looked and listened without seeing or hearing the train was contrary to all reasonable probability, and not worthy of credence; that, if the view was obstructed nearly to the crossing, as he testified, such fact required him, in the exercise of ordinary care, to take greater precautions before going on the track, and in either event he was guilty of such culpable negligence as precluded him, as matter of law, from recovering for the injury, conceding the negligence of the railroad company.</p> <p>2. Evidence — Negative Testimony.</p> <p>The rule that affirmative testimony is to be preferred to negative is not an absolute one, which requires the entire rejection of negative testimony, but is applied as a proper means of determining the relative value or weight of testimony. Where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of witnesses who were in a situation favorable for observation, and who testify affirmatively and positively to the occurrence.</p> <p>f 2. Negative testimony, see note to Delaware, L. & W. R. Co. v. Devore, 52 C. C. A. 82.</p> <p>See Evidence, vol. 20, Cent. Dig. § 2434.</p>

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

<p>1. Mobtgage — Validity—Life Tenant.</p> <p>An instrument in the nature of a mortgage executed by a trustee held to create no lien on land which could be enforced after the death of the cestui que trust, who had himself created the trust, on the ground that the deed from an ancestor, by which he obtained title, conveyed to him only a life estate, as had been adjudged by the highest court of the state.</p>

This suit was commenced February 1, 1902, in the circuit court of Duval county, state of Florida, by filing the following: “Declaration. “In the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Fla. “George J. Baer, Plaintiff, v. Fidelity & Deposit Company of Maryland, Defendant. “The plaintiff, George J. Baer, by his attorneys, sued the defendant, Fidelity & Deposit Company of Maryland, which is now, and was at the time of each of the several acts and things…

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

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

<p>1. Bankruptcy — Provable Debts — Taking New Promise from Bankrupt-Effect.</p> <p>Where, after a creditor had proved his debt in bankruptcy, evidenced by notes, he took from the bankrupt other notes for the same indebtedness without surrendering the original notes, he is not ordinarily presumed to have discharged the debt proved, nor to be precluded from maintaining his proof, while at the same time proceeding against the bankrupt personally on the new notes, so long as he has not received full satisfaction of his debt</p> <p>2. Same — Costs.</p> <p>Where issues in the bankruptcy proceeding arising out of the mixed condition of the claims were caused entirely by the methods of a creditor, the trustees should not be charged with the costs of a proceeding to determine such issues.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York..</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (124 Fed. 291), which affirmed a decision of the Board of General Appraisers sustaining the collector of the port of New York in his assessment of certain articles for duty purposes.</p>

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

<p>1. Customs Duties — Classification—Lace Neckwear — Wearing Apparel.</p> <p>Lace neckwear is more specifically provided for in paragraph 339, Tariff Act July 24,1897, c. 11, § 1, Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1602], as “wearing apparel * * * made wholly or in part of lace,” than in paragraph 314 of said act (Schedule I, 30 Stat. 178 [U. S. Comp. St. 1901, p. 1659]), as “articles of wearing apparel of every description, including neckties or neckwear.”</p>

<p>1. Circuit Court of Appeals — Jurisdiction—Time for Suing out Writ of Error.</p> <p>Under section 11 of Act March 3, 1891, c. 517, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552], creating the Circuit Courts of Appeals, such court is without jurisdiction to review a judgment on a writ of error not issued until more than six months after the entry of the judgment, notwithstanding it may have been allowed within that time.</p> <p>1f 1. Jurisdiction of Circuit Court of Appeals, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.</p>

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

<p>1. Collision — Ship Making Berth — Refusal of Small Boat to Give Way.</p> <p>A barge lying at the end of a pier in New York, although rightfully there, which refused the offer of a steamship to remove her temporarily while the ship was making her berth in an adjacent slip and to return her afterward, took the risk of injury from the docking of the ship if the latter was properly handled, and cannot recover therefor without proving fault.</p>

<p>1. Preliminary Injunction — Restraining Collection oe Execution.</p> <p>It is a proper exercise of discretion for a court to enjoin, on bond filed, pendente lite, the collection of an execution against the surety on a criminal recognizance, on a bill alleging facts which, if true, render the execution void.</p>

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

<p>1. Patents foe Invention — What Additions, Omissions, and Changes of' Form do not Avoid Infringement.</p> <p>One may not escape infringement by adding to or subtracting from a patented device, by changing its form, or by making it more or less efficient, while be retains its principle and its mode of operation, and attains its result by tbe use of the same or of equivalent mechanical means.</p> <p>2. Same.</p> <p>Letters patent No. 415,542, to John Lenhart, secure an adjustable sliding plate, attached by means of a bolt and a slot in the plate to the inner side of the moldboard or share of a plow, to regulate its tilting. Tbe plate described in tbe specification has a thin lower edge turned toward the share, so that as it is depressed it will pass under tbe edge of the share, qnd cut tbe roots of grass under the turf.</p> <p>Reid, an adjustable sliding plate attached by means of a bolt and a slot in tbe plate to tbe inner side of tbe clip on tbe inner side of the moldboard of a plow, to regulate its tilting, is tbe mechanical equivalent of tbe patented device, although its lower edge is flattened in tbe form, of a triangular shoe, so that it will not cut roots, and although it depends by the side of, and not vertically under tbe edge of, the plowshare.</p> <p>(Syllabus by the Court.)</p> <p>1. See Patents, vol. 38, Cent. Dig. §§ 372, 376, 377.</p>

These are cross-appeals from the decree of the Circuit Court for the District of Washington rendered in a suit brought by the Alaska… Held: with a mechanism by which the slides are withdrawn as the can enters the cap, substantially as herein described. “(10) The vertically moving plunger by which the can is raised to receive the cap, and the guide into which the upper end of the can enters the transversely moving cap-holding slides, in combination with the second plunger…

<p>I. Patents — Validity and Infringement — Valve Mechanism foe Aie Brakes.</p> <p>Tbe Boyden patent, No. 481,134, for a valve mechanism for automatic air brakes, claim 2, as limited to the elements of the combination described and shown in the specification and drawings other than the graduating valve included in claim 11 is valid; also held infringed.</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 Southern District of New York.</p>

<p>1. Patents — Suit fob Infringement — Amendment of Pleading.</p> <p>Under the authority given the court to permit amendments by equity rule 60, a defendant 'in a suit for infringement of a patent, who has set up prior invention, knowledge, or use, will be given leave to amend his answer, even after replication filed, by adding the name of another witness, giving his place of residence, as required by Rev. St. § 4920 [U. S. Comp. St 1901, p. 3394], where satisfied that the application is not made for delay, and that the amendment is in furtherance of justice.</p> <p>IT 1. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p> <p>See Patents, vol. 38, Cent. Dig. § 527.</p>

<p>1. Patents — Infringement—Electrical Measuring Instrument.</p> <p>The Weston patent, No. 392,387, for an electrical measuring apparatus, claims 8, 12, and 13, held valid and infringed, on motion for preliminary injunction.</p>

<p>In Equity. On report of master and exceptions thereto, and motion for final decree.</p> <p>The following is the report of the master:</p> <p>Statement.</p> <p>The original bill was filed on May 1, 3899, by the complainant, as trustee for the bondholders, against the city of Dawson, certain individuals in their representative capacity as officers of said city, and against the Dawson Waterworks Company. The bill alleged, in substance, as follows:</p> <p>The Dawson Waterworks Company on September 1, 1891, created the complainant as trustee for 80 of its first mortgage bonds, in the denomination of $500 each, and executed to complainant its mortgage or deed of trust conveying, as security for the payment of its said bonds, all of its real and personal property, corporate rights, franchises,' privileges, and appurtenances, together with all incomes, rents, earnings, issues, and profits then or thereafter payable to the company, and in particular the income payable to the said company, or to the trustee for its bondholders, in virtue of the contract with the city of Dawson in that regard. Said bonds, aggregating $40,000 in amount, dated September 1, 1891, and payable September 1, 1916, with interest at the rate of 6 per centum per annum, payable semiannually, were duly issued and sold in open market to bona fide purchasers for value. The bonds were issued and sold in order to procure the money necessary to construct and equip a system of waterworks, as contemplated in a certain contract between the city of Dawson and the waterworks company. This contract is contained in an ordinance of the city of Dawson, acting in its corporate capacity, of February 21, 1890, whereby R. L. Bennett, his associates, successors, and assigns, were to become incorporated under the laws of the state of Georgia under the name of Dawson Waterworks Company, which company, within the time limited, was to construct, complete, and have in operation a thorough system of waterworks in accordance with the specifications and the plans of the contract, and was from time to time to extend its mains and pipes and enlarge its system to meet increasing demands consequent upon the growth of the city; and, in consideration of the company’s agreeing to furnish a free and unrestricted use of its water for fire protection for the period of 20 years, the city of Dawson undertook and agreed to pay to the company, or to such trust company as might be chosen as trustee for the bonds to be issued, the sum of $2,000 annually for the period of 20 years; such payments to be made on the 1st days of January and July in each year. The ordinance provided that a tax sufficient to pay such rentals should be annually levied, specified the number of fire plugs to be established, and limited the price to be charged to private consumers.</p> <p>The city of Dawson, on June 11, 1886, submitted to the qualified voters of the city, after publication of notice thereof for four weeks in the newspaper in which legal notices were published, the question whether the city should incur the expense of waterworks. The election was held, and more than two-thirds of the qualified voters cast their ballots in favor of incurring the expense of waterworks. The result of the election was declared to be in favor of waterworks. The contract entered into between the city of Dawson and R. L. Bennett, as above referred to, was published in full in the public gazette, and was acquiesced in by all of the citizens. The Dawson Waterworks Company was duly incorporated, and proceeded to construct a complete and thorough system of waterworks in accordance with the specifications and requirements of the said contract. The system was fairly and fully tested by the city, and was found to satisfactorily comply with all of the requirements of the contract. The city council of Dawson on August 12, 1891, adopted a resolution declaring that, after fully testing said system, it was accepted by the city as fully complying with the contract. The waterworks company has continued to maintain and operate its system in full compliance with the requirements of said contract continuously from that time, and the city has continuously enjoyed the fire protection contracted for, and for that purpose has continuously used the water so often as required.</p> <p>It was understood and contemplated by the city of Dawson at the time of entering into the contract that the money required to construct the system of waterworks was to be procured in whole or in part by the issuance and sale of the bonds of the water company; and, in order to render the bonds more salable, the city, by said contract, agreed and promised to pay to the trustee for the bondholders the annual rental stipulated in the contract, thus inviting investors to become purchasers of the bonds upon the faith that the city would observe its obligations as therein contained. The bonds were negotiated and sold upon the faith that the city of Dawson would pay said rentals, to be applied to the liquidation of the principal and interest of said bonds, and the proceeds of said bonds were used in the construction of the waterworks system.</p> <p>After using the water without objection or complaint for several years, the city council on June 27, 1894, adopted a resolution declining to further carry out its contract with the waterworks company; assigning as the reason therefor that the contract created such an indebtedness as was forbidden by the Constitution of the state of Georgia, and was therefore not binding upon the city. The waterworks company had in no way failed to comply with its contract, nor had any complaint been made as to the character of the service, the pressure, or the quantity of the water furnished. At the time of the passage of the resolution,' the city of Dawson was considering the question of purchasing the waterworks, and it is charged that the purpose of the city in repudiating the contract was to destroy the value of the property, by withdrawing the revenues necessary to its existence, and forcing the company to sell at such price as would be satisfactory to the city. In pursuance of this scheme on the part of the city, an equitable petition was on June 29, 1894, brought in the state court, in the name of certain taxpayers, against the city and the waterworks company, seeking to enjoin the city from paying the rentals accruing to the waterworks company, on, the ground that the contract in that regard was void under the Constitution and laws of Georgia. It is charged that this suit was instituted at the instance of the city for the purpose of having its contract with the waterworks company declared void. Upon the hearing the injunction prayed for was denied, and the suit was subsequently dismissed. Prior to that time the city had recognized said contract as valid and subsisting, and had levied and collected the taxes required to meet the annual rentals. The rental accruing for the year 1894 was paid, less a deduction on account of taxes which it was claimed were due the city by the waterworks company as an ad valorem tax on its property therein. Since December 31, 1894, the city has refused to pay or make provision for the payment of the annual rentals due the water company under the contract. In December, 1894, the city, through its mayor, notified the waterworks company that a resolution had been adopted declaring that the city would not be liable on the contract after January 1, 1895, notwithstanding which the city has continuously, since January 1, 1895, availed itself of the fire protection afforded by the waterworks company; thereby intending to take the benefit, though declining to carry out the obligations, of the contract. The public ordinances of the city providing for the use of the water by the fire department were never repealed, the fire companies were not forbidden to further use the water, and no other means of fire protection was provided by the city. Apparatus was furnished by the city to its fire department for the use of the water, and members of the fire companies were given tax exemptions by the city in consideration of their services as firemen. The mayor and members of council, as well as other citizens, subsequently assisted in the use of the water on the occasion of various fires. The waterworks company declined to acquiesce in the repudiation of the contract by the city, and gave notice that it would continue to furnish water with the required pressure for the use of the city for fire protection. The waterworks company has observed the requirements of the contract, has maintained the pressure called for, and has furnished the city at all times with the free and unrestricted use of its water in cases of fire. The waterworks company has at all times held itself in readiness to furnish the water contracted to be supplied in lieu of city taxes to all municipal buildings and for the fountains as specified, notwithstanding which the city of Dawson has assessed, levied, and attempted to collect municipal taxes against the company for the year 1895. An execution for such taxes has been issued and placed in the hands of the city marshal for collection by seizure and sale of the waterworks property.</p> <p>The city of Dawson called an election for December 12, 1894, to determine whether the city should issue bonds in the sum of 835,000 to erect or buy waterworks and electric lights for the city. The result of the election was declared by council to be in favor of issuing the bonds. Bonds in the amount of 810,000 have been, pursuant to said election, issued and sold, and with the proceeds the city has erected an electric light plant. The remainder of said bonds, amounting to 825,000, have not been sold, but it is charged to be the purpose of the city to invoke a ruling of the court whether its contract with the waterworks company is binding, and, if the decision should be favorable to the city, thereafter to sell the bonds, and with the proceeds erect its own system of waterworks, and dispense with the water supply and fire protection which the city enjoys under its existing contract. It is charged that it was the plan and purpose of the city, while intending to repudiate the contract, nevertheless to continue to use the water, and enjoy the fire protection thereby afforded, until such time as it could sell its bonds and erect its own waterworks. The Supreme Court of Georgia having decided that the contract in question created a debt, and, as such, was forbidden by the state Constitution, the city of Dawson has determined to sell its said bonds, and is now engaged in an effort to procure a sale thereof for the purpose of erecting a system of waterworks, in violation of its contract, and in total destruction of the rights of the waterworks company and the holders of its bonds.</p> <p>The waterworks company has no property save its waterworks plant and the value of its contract with the city of Dawson. Other than from these sources, it has no means with which to pay operating expenses and the interest and principal of the bonds. The abrogation of its contract with the city would result in the almost complete destruction of the value of the property of the company. If the city of Dawson should be permitted to erect and operate its own system of waterworks, the company would be in no position to compete successfully for the patronage of private consumers.</p> <p>The waterworks company, recognizing the right of the complainant to pay the rental due and to become due under its contract with the city, in order to protect the rights of the bondholders, has yielded to complainant’s demand that it shall in future have the exclusive right to collect from the city of Dawson all rentals accruing under the contract for the year 1896, and subsequent thereto, of which the city has been duly notified, and payment of rentals has been demanded.</p> <p>The bonds issued by the waterworks company were in the first instance sold to the American Pipe Manufacturing Company, a New Jersey corporation. The latter company sold all of its bonds in open market for value, and the same are now owned by a number of different persons. The American Pipe Manufacturing Company is largely engaged in the construction of waterworks, and frequently receives in payment bonds of the companies for whom the works are constructed, and consequently has frequent occasion to negotiate and sell such bonds, and is interested in seeing that the obligations thereof are duly protected. At the request of the waterworks company, the pipe manufacturing company, in order to save the waterworks plant from foreclosure and sale, has paid the interest falling due on the bonds, up to and including that due on March 1, 1899. These payments were made under an agreement that the pipe manufacturing company should be subrogated to the rights and remedies of the original holders of the interest coupons. Complainant asks leave to repay the pipe manufacturing company the moneys thus expended, if there should come into its hands a surplus sufficient for the purpose over and above the payment of accruing interest on the bonds, and the creation of a sinking fund to be used in discharge of the principal1 of the bonds.</p> <p>The bill prays for an injunction against the city of Dawson, restraining the erection, installation, or operation of any system of waterworks in and for said city, or from entering into any contract with any other person for the construction, operation, or use of any system of waterworks, or for the supply of water for fire protection in violation of the contract of the Dawson Waterworks Company with the city, or from issuing and _ disposing of bonds, or from paying out any money, or incurring any obligation, or entering into or carrying out any contract for the creation of a system of waterworks, other than that existing with the Dawson Waterworks Company. It is further prayed that the court will, by injunction, preserve the sanctity and integrity of the contract between the city of Dawson and the waterworks company, and that said contract be decreed to be valid and mutually binding upon the parties thereto; that the'said contract be required to be specifically enforced; that the complainant may recover from the city, in trust for the benefit and use of the bondholders, the rentals due by the city for the use of the water for the year 1896 and succeeding years; and for general relief. Attached to the bill, as exhibits, are the mortgage or deed of trust referred to, and the ordinances of the city creating the contract between the parties. Upon this bill a rule nisi was duly issued and served, and a temporary restraining order was granted.</p> <p>On June 26, 1899, prior to the hearing of the rule, the complainant, by leave of the court, amended its bill of complaint, alleging that the ordinance of the city of Dawson repudiating its contract was an attempt to impair the obligation of the contract and destroy the value of the property of the waterworks company, in violation of the Constitution of the United States; that the ordinance of said city of October 4, 1894, ordering an election for the purpose of determining whether the city should issue bonds for the purchase or erection of a system of waterworks and an electric light plant, and the ordinance of'November 5, 1894, declaring the result of the election held under the prior ordinances, and the refusal of the city to levy a tax for the purpose of paying the rentals due the water company, are likewise in impairment of the obligations of its contract with the -waterworks company, and in violation of the Constitution of the United States. It is further alleged that such ordinances and conduct on the part of the city, if given effect, will deprive the holders of the bonds of the waterworks company, as well as the waterworks company itself, of their property without due process of law, in violation of the federal Constitution. The other matters contained in the amendment are not material to be now referred to.</p> <p>In answer to the rule, the city of Dawson objected to the jurisdiction on the ground that, after arranging the parties according to interest, the requisite diversity of citizenship did not exist. The city further answered, denying the material allegations of the bill, and contending that the alleged contract between the city and the waterworks company was utterly void, under the Constitution and laws of the state of Georgia, and had been so declared by the Supreme Court of the state of Georgia in the case of City of Dawson v. Dawson Waterworks Company, 106 Ga. 696, 32 S. E. 907. The answer of the city is hereinafter more fully referred to.</p> <p>The cause came on to be heard under the rule before Circuit Judge PAR-DEE, whereupon the court, after considering the evidence and the argument •of counsel, granted on September 16, 1899, an order for injunction pendente lite, as prayed in the bill, and further ordered that the defendants might apply to the court at any time after 30 days from the date of the order for a test of the ability of the Dawson Waterworks Company to perform its obligations in regard to the furnishing of the water to the city of Dawson for municipal purposes and fire protection, according to'the letter and spirit of its contract, and upon such application the court would order a test and trial of the same by experts, under the direction of a master, and take such action upon the master’s report as equity might require. The injunction as ordered was duly issued. From this order granting an interlocutory injunction an appeal was ■duly prosecuted to the Circuit Court of Appeals. That court dismissed the appeal without considering the merits of the controversy, upon the ground that an appeal will not lie to a Circuit Court from an order granting an interlocutory injunction in a ease involving the construction and application of the Constitution of the United States. City of Dawson v. Columbia Avenue, etc., Company, 102 Fed. 200, 42 C. C. A. 258.</p> <p>To the original bill the defendant city of Dawson demurred for want of jurisdiction in the court, on the ground that, after arranging the parties according to interest, the requisite diversity of citizenship did not exist,, and on the further ground that no federal question was involved. The defendant also demurred to the bill for want of equity, on the ground of an adequate remedy at law. After argument of counsel, the demurrer was overruled on July S, 1901; “the court considering the law and equity to be with the complainant, and the demurrer to said bill not well taken.” Thereafter, on the 3d day of August, 1901, the city of Dawson and the defendants, who were being sued in their representative capacity as officers of said city, filed their answer to the bill as amended. The answer is, in substance, as follows:</p> <p>The Dawson Waterworks Company, a Georgia corporation, is the real complainant in the litigation, and the bill has been brought in the name of Columbia Avenue Trust Company as complainant, with the waterworks company as defendant, collusively, and for the purpose of conferring jurisdiction upon the federal court, and for the further purpose of avoiding the judgment of the Supreme Court of Georgia declaring the contract involved to be invalid. Wherefore it was prayed that the court dismiss the bill for want of jurisdiction.</p> <p>Further answering, the defendants say that, under the Constitution and laws of Georgia, the alleged contract between the waterworks company and the city is absolutely void ab initio, because expressly prohibited. On the 14th day of March, 1899, the Supreme Court of Georgia, in the case of City of Dawson v. Dawson Waterworks Company, adjudged that, under the Constitution and laws of Georgia, and its settled public policy, the said contract was void ab initio, and that complete performance on the part of the waterworks company did not estop or prevent the city from pleading the illegality of the contract. The complainant, Columbia Avenue, etc., Trust Company, is a mere privy and assignee of the cause of action involved in the decision by the Supreme Court of the state, and has become such since said decision. The defendants plead that all of the questions and issues now made in the bill as amended are res judicata, and they pray the court to follow the judgment of the Supreme Court of the state. The answer contains a general denial of the material allegations of the bill.</p> <p>The election held by the city in 1886 to determine whether the city should incur the expense of waterworks was void for uncertainty, and has been so declared by the Supreme Court of Georgia, and was insufficient to predicate the contract in question, or any legal contract. It is admitted that in June, 1894, the city repudiated and renounced the alleged contract with the waterworks company. Since the year 1894 the city has not, in its public capacity, used or authorized the use of any of the water of the waterworks company. If any of the city officials have used the water on occasions of fire, it was in their capacity as private citizens acting in an emergency.</p> <p>It is denied that the complainant sustains any contractual relation to the city with reference to the subject-matter of the suit, or, if such relation did exist, the contract, being totally void, could not be valid for the benefit of any party thereto, or of third persons whose rights depended upon those of the parties. Defendants deny any improper motive in repudiating the contract, and deny any effort or intention to impair the value of the property of the water company, or force the company to sell to the city for less than its value.</p> <p>Refusal to pay water rentals for the year 1895 and succeeding years is admitted. It is averred that during these years the system of waterworks has been defective, insufficient, unreliable, and almost unserviceable as a means of protecting the city from fire. The required amount of pressure did not exist. The system was not kept In proper condition for prompt and effectual use, and was so unsatisfactory that, on nearly every occasion when the citizens endeavored to use the water to extinguish fires, there was a failure to obtain sufficient water under the required pressure. During these years the water company had notice and knowledge of the inadequacy and inefficiency of the system, and on one occasion, in June, 1897, on a test made by the superintendent of the company under the conditions laid down in the contract, the system failed to measure up to the standard, in that the water was thrown vertically not more than 30 feet, instead of 50, as required. The inefficiency of the system as then demonstrated had continuously existed since 1894 up to the date of the filing of the bill.</p> <p>The remission of municipal taxes, as contained in the said contract, is utterly void under the laws of the state. Since the renunciation of the contract by the city, it has not used or received the water of the water company under the terms of the contract or otherwise, and taxes upon the water company’s property for the year 1895 and succeeding years are due and unpaid.</p> <p>It is not denied that the city proposes to erect its own system of waterworks, but it is contended that, under the decision of the highest court of the state, it has the right to do so. It is denied that the complainant, as trustee, has any right to maintain this suit for the benefit of the bondholders. In reality, the suit is at the instance and for the benefit of the water company, which had been allowed to collect all rentals from the city until after the litigation in the state court. The water company has no exclusive franchise for completing, equipping, and operating waterworks in the city, and, under the Constitution and laws of the state, can have none; nor is the city prevented from constructing and maintaining its own system, after complying with the requirements of the law in that regard. The city and its inhabitants have suffered damage and injury by reason of the inadequacy of the present system, and, the water company being insolvent, it became the right and duty of the city to provide an adequate and satisfactory system for fire protection, and for the health, safety, and welfare of the inhabitants of the city. It is true that the city has never complained to the Columbia Avenue Company as to the inefficiency of the waterworks or the character of the service, because the city did not know that the complainant was entitled to such notice, and for the further reason that the city, having declined to carry out the alleged contract and to pay the water rental accruing thereunder, considered that it had no right thereafter to complain to any one touching the inefficiency of the service.</p> <p>Not only was the water furnished by the water company insufficient to afford the fire protection contemplated in the contract, but it was impure, unwholesome, and unfit for domestic use and sanitary purposes. At times the water was so muddy it was unfit for drinking or bathing purposes, and on several occasions was so thick with mud that a flow could not be obtained for use in extinguishing fires. The sources of water supply were designated by resolution of the city council of March 14, 1891. The water company has not derived its supply solely from these sources, or either of them, but has furnished water mingled with surface and branch waters, and from the waters washing from the adjacent hills and fields. This water it has allowed to accumulate in swampy places, covered with undergrowth and woods. The water so obtained was furnished without being filtered, and was loaded with mud and filth.</p> <p>To this answer, replication was duly filed, and at this stage of the cause reference was made to the master.</p> <p>Findings of Fact.</p> <p>(1) The city council of Dawson, by ordinance of May 10, 1886, directed an election to be held on June 11th following, at which the question of incurring the expense of waterworks should be submitted to the qualified voters of the city. At this election the ballots cast were for “waterworks” or “no waterworks.” The result of the election was in favor of waterworks, and this result was declared by the city council on July 18, 1886. Following this election, the officials of the city made some effort to secure a system of waterworks, but no substantial results were accomplished. No definite plans for a system of waterworks had been developed, nor were any negotiations looking to a particular contract either pending or in contemplation at the time. Nearly four years thereafter, the city entered into the contract with R. L. Bennett which forms the subject of this suit. Neither In the negotiations leading up to the contract, so far as the evidence discloses, nor in the contract itself, is there any mention of or reference to this election as furnishing authority for the contract, or as an inducement thereto. I therefore find, as a matter of fact, that at the time of the contract the result of the election of June 11, 1886, was not in contemplation of the parties, and that the said election constituted no authority for entering into the contract on the part of the city.</p> <p>(2) The contract entered into between R. L. Bennett and the city of Dawson is in the form of an ordinance adopted February 21, 1890, and is, in substance, as follows: Section 1 grants to R. B. Bennett, his associates, successors, and assigns, who are to become Incorporated as the Dawson Waterworks Company, the exclusive right and privilege, for the period of 99 years, of constructing, maintaining, and operating a system of waterworks for the purpose of supplying the city and its inhabitants with water for protection against fire, and for domestic, sanitary, and other useful purposes. Section 2 confers upon the company the exclusive right and privilege of excavating and laying water pipes and mains along the streets and avenues of the city, as then open or as thereafter extended. Section 3 gives the right to erect buildings, tanks, and other structures, and make necessary improvements, on lands owned or controlled by the city, excepting its public squares. Section 4 requires the company to complete and have in operation within 18 months a complete and thorough system of waterworks, to consist of 4.8 miles of pipe, of 4, 6, and 8 inches in diameter, with a reservoir of not less than 40,000 gallons capacity, “and of sufficient height to produce a pressure on the mains such that from any hydrant located on the principal streets a stream of water will be projected fifty (50) feet vertically in still air through one hundred feet of fire hose with a one-inch nozzle attached.” The company is required to continue during its existence to furnish a sufficient supply of water for the purposes named, unless prevented by unavoidable and providential cause, in which event it should be allowed a reasonable time within which to make repairs, after which, should it fail to furnish such supply of water, its franchise, from that fact, should be forfeited. Section 5 provides that the company shall from time to time extend its mains and enlarge its system to meet the increasing demands consequent upon the growth of the city. Section 6 recites that in consideration of the company guarantying to the city for the period of 20 years, and as long thereafter as the company should operate the waterworks, a free and unrestricted use of the water for fire protection, and agreeing to establish at convenient places, not exceeding 50, fire plugs of approved pattern, to be increased in number as the city grows in population, and to furnish, for fire protection only, water to fill the public cisterns, the city obligated itself “to pay to the said Company or to such trust company as the Dawson Waterworks may elect or decide upon as their trustee for their bonds the sum of two thousand ($2,000) dollars annually for twenty years,” in semiannual payments of $1,000 each, on the 1st day of January and July in each year, and in case the city should, from lack of funds or other cause, fail to make such payments on the days named, it agreed that warrants should be issued on the city treasurer in favor of the company for the amount due. Section 7 required the city council to make provision each year for the payment of the stipulated rental by levying a tax sufficient for the purpose upon the taxable property in the city. Section 8 limited the charges to private consumers of the water, and prescribed a schedule of maximum charges for various uses. Section 9 contains the agreement that, in consideration of water to be furnished the public municipal buildings and two public fountains, “the City of Dawson hereby obligates itself to remit to said Company, its successors and assigns, any and all license fees, taxes, dues and charges which may at any time hereafter be levied or assessed by said City against said company or upon the plant to be used in said waterworks system.” Section 10 gives the assent of the city to the charter that may be obtained by the waterworks company; ‘conferring upon it the exclusive franchise to construct, maintain, and operate a system of waterworks in the city. Section 11 declares “that the provisions of this ordinance shall be mutually binding upon the City of Dawson and R. L. Bennett and associates, and the company to be organized by them in pursuance of the provisions thereof, and it shall have the force and effect of a contract between the respective parties as fully and completely as if it were drawn in that form and signed by the contracting parties.” I find that the ordinance as above recited and referred to was accepted by R. B. Bennett, and constituted the contract as between him and the city of Dawson. This contract and the franchises therein granted were subsequently, on March 17, 1891, transferred and assigned by R. B. Bennett to the American Pipe Manufacturing Company, and by that company were on August 20, 1891, transferred and assigned to the Dawson Waterworks Company, which company had become incorporated under the laws of the state of Georgia.</p> <p>(3) I find that the city of Dawson had express notice that bonds were to be issued and sold for the purpose of procuring the money with which to construe.,, the waterworks plant, and that the city acquiesced in this arrangement. In the original ordinance of February 21, 1890, creating the contract between the parties, the city agreed to pay the water rental to the waterworks company, or to such trust company as the waterworks company might elect or decide upon as trustee for their bonds. At a meeting of the city council held on March 23, 1891, a communication was received from the American Pipe Manufacturing Company stating that it had purchased the franchises of R. L. Bennett to build waterworks in the city, and asking for an extension of 60 days to begin the work, in order to have an opportunity to market bonds. The council adopted a resolution granting an extension of 60 days as and for the purpose requested.</p> <p>(4) The city designated the source from which water was to be taken by the waterworks company, and declared by resolution of March 14, 1891, that either or all of the sources therein specified should be accepted as supply for water to fill the contract and franchises granted R. L. Bennett and his associates. Samples of water from each of these sources had been taken by the mayor of the city and forwarded to the state chemist for analysis. After analysis the chemist reported that each of these waters were pure and safe, and one (taken from a source subsequently adopted) was reported to be “clear and odorless, with a faint yellowish brown color, due to vegetable matter in solution. On standing, traces of organic sediment are deposited. Organic impurity very slight and mainly vegetable. A perfectly pure and safe water.” On March 14, 1891, the mayor wrote the American Pipe Manufacturing Company, inclosing copies of these analyses, together with copy of the resolution of the city council designating the source of supply. An official of the pipe company visited Dawson, inspected the sources of supply pointed out, and selected those which were deemed sufficient for supplying the requisite quantity of water.</p> <p>(5) The system of waterworks as contemplated was constructed by the American Pipe Manufacturing Company. After its completion the system was tested by the city, in order to ascertain if it came up to the requirements of the contract. After making this test, the city, on August 12, 1891, executed a formal acceptance in writing, and caused to be entered upon the minutes of the council a declaration accepting the system of waterworks as fully complying with the contract in all particulars.</p> <p>(6) The Dawson Waterworks Company on September 1, 1891, caused to be issued 80 first mortgage bonds, in the denomination of $500 each, aggregating the sum of $40,000, payable on the 1st day of September, 1916, with interest at the rate of 6 per cent, per annum, payable semiannually. Payment of these bonds was secured by a mortgage to the complainant, Columbia Avenue Company, as trustee, of even date, conveying all the real and personal property of the water company, including its corporate rights, franchises, and privileges, then owned or thereafter to be acquired, together with any and all income then or thereafter payable to the water company under any agreement made between the company and the city of Dawson, or payable under any ordinance of the said city. Before accepting this trust the president of the Columbia Avenue Company visited Dawson in person, inspected the system, examined into the contract with the city, and satisfied himself that proper support existed to enable the waterworks to be successfully operated. The entire issue of bonds was accepted by the American Pipe Company in payment for its work and material in the construction of the waterworks system. All of the bonds were subsequently sold to bona fide purchasers for value at prices varying from 92% to 100, the aggregate derived from the sale of the bonds amounting to $37,927.23. These bonds are now owned and held by various persons, whom I find to be bona fide purchasers for value.</p> <p>After the installation of the system, and its acceptance by the city as fully complying with the requirements of the contract, the waterworks were for several years operated to the mutual satisfaction of the parties. During this time the city promptly paid the rentals as they fell due, and appears to have made no complaint of any kind, either with reference to the quality or quantity of water, or the efficiency of the service. In May, 1894, the city instituted negotiations looking to a purchase of the waterworks system. These negotiations resulted iñ a failure to agree. Early in July the proposition of the water company was formally declined by the city, and all negotiations were terminated. In the meantime certain taxpayers of the city filed an equitable petition against the city to restrain it from paying water rentals, on the ground that the contract with the waterworks company was ultra vires of the city and void. The injunction prayed for was denied, and the bill was dismissed. On June 27, 1894,-the city council adopted a resolution declining to carry out the contract with the Dawson Waterworks Company, and providing for the appointment of a committee to make'such arrangements as would be satisfactory to the council and to the waterworks company. This resolution was duly communicated to the Dawson Waterworks Company, which declined to acquiesce in the abrogation of the contract. The city paid for the use of the water for the remainder of the year 1894, less a deduction claimed to be due the city on account of taxes, and on December 14, 1894, notified the water’ company that unless a new agreement could be reached between them as to the subsequent use of the water for one year from January 1, 1895, the city would not be liable under the contract after the date named. The water company declined to enter into a new agreement, insisting upon the validity of its existing contract, and notifying the city that- it would continue to supply the water and maintain the service as in the contract required.</p> <p>During the year 1895 the water company continued to maintain and operate its system, and furnish water for the uses of the city. Only one fire occurred during the year 1895. At this fire, water from the mains and plugs of the water company was used. After the expiration of the year, the city declining to pay the water rentals, the water company brought an action at law for recovery in the superior court of Terrell county. The superior court directed a verdict for the water company. On writ of error, the Supreme Court of the state reversed judgment of the court below, and declared that, while the city might be liable from year to year for the water used under the contract for the particular year, the contract as to future years created an indebtedness such as is forbidden by the Constitution of the state, and was for that reason invalid and not binding upon the city. This decision and its effect are hereinafter more fully discussed. The water has since been continuously used on the occasions of numerous fires, and whenever so required. The city claims that, notwithstanding that its officials participated in this use of the water, their action was that of any citizen in an emergency, and was not authorized by the city in its corporate capacity.</p> <p>I find that the city fire organization was maintained during the years following 1894 as it was in preceding years. While at times this organization was not in an efficient state, it was never disbanded. The city continued to furnish hose and fire apparatus, and to grant to the members of fire companies exemption from municipal street taxation. No other means for fire protection was afforded by the city, so that it must have been recognized that, in any emergency of fire, resort to the use of the water of the waterworks company was necessary and inevitable. The city did not forbid the use of this water by its fire department, and must have known that it was being continuously so used. In 1898, prior to the filing of this bill, the city brought its fire department up to a higher state of efficiency, with a paid chief at its head. I accordingly find that, notwithstanding the city had repudiated the contract, it has continued to enjoy the fire protection afforded by the waterworks company, and to use the water for that purpose on every occasion in the same manner and to the same extent that it did prior to its repudiation of the contract.</p> <p>(8) The source of water supply adopted by the water company from among those designated by the city consisted of a running stream, into which directly flowed the water of what is known as Dunn’s Spring, some 400 yards above the take-in of the water company. These waters were among those analyzed by the state chemist, and by him pronounced safe and pure. The watershed does not cover an extended area. The stream above flows through land which is more or less marshy, and upon which there is considerable vegetable growth. The surface water from adjoining hills on one side of the stream flows in above the point of supply. On the crest of these hills are several small residences, the washings from whose premises flow into the stream. There is also on the watershed a scaffold, which has been used from time to time for the slaughtering of cattle in a small way. The stream from which the water supply is derived is not protected from these surface washings by means of dikes or other devices. The condition of the watershed is substantially the same now as it was at the time of the selection, and as it has been since. The evidence does not disclose when the slaughtering of cattle began, or how extended it has been. The water is not filtered, but is taken directly from the stream, and pumped to a standpipe or reservoir in the city, from which it is distributed by gravitation through mains and pipes to consumers.</p> <p>I find from the evidence that at certain seasons of the year the water is safe and pure, as shown by the analysis of the state chemist. At other seasons, during periods of continuous rainfall, the water is muddy, and must to some extent be contaminated by reason of the surface washings from the watershed as described. It was disclosed in the evidence that an analysis of the water had been made at the instance of the city or some of its citizens, but this analysis was not offered in evidence, nor was any expert evidence as to the quality of the water introduced, excepting the analysis of the state chemist, as above referred to.</p> <p>The General Assembly of the state of Georgia passed an act, approved September 7, 1891, for the protection of the water supply of the waterworks for the city of Dawson. By this act it was made unlawful to obstruct or interfere with the flow of the stream, or pollute or contaminate in any way or by any means the water of the stream or watershed, so as to affect in any degree the quality or purity of the water. It was made unlawful to place or deposit any dead animal or vegetable matter in the swamp bordering on and surrounding the stream, its springs and branches, so as to affect the purity and quality of the water. The violation of these provisions was declared to be a misdemeanor. The police supervision of the marshal and policemen of the city of Dawson was extended over the watershed, and the officers were empowered to make arrests therein for violation of the provisions of the act. The ordinance of the city of Dawson made it the duty of the mayor to appoint three members of the council, whose duty it should be to superintend the waterworks and water supply of the city, and to see that the owners of the waterworks company complied with their obligations in furnishing water to said city and private individuals. City Code, par. 242.</p> <p>(9) The water company erected a reservoir exceeding in capacity that required by the contract. The height of this reservoir from its bottom to the surface of the earth below was G5 feet. Upon a test by the city it was ascertained and declared that the system met with the requirements of the contract, and I therefore find that the reservoir was of the prescribed height'and capacity. Much evidence was introduced and offered to' show that sufficient pressure had not constantly been maintained. It appears that on one occasion the reservoir was found to be empty, but this occurred shortly after the construction of the waterworks, and before the repudiation of the contract by the city, and is therefore not material to be considered in the present case. At times the reservoir leaked. On one occasion the local superintendent of the water company tested the pressure from a point on what is known as an “end pipe.” The water failed to reach a height of 50 feet vertically. It was shown that this test was a voluntary act of the local superintendent, without notice to the officers and owners of the waterworks company or to the city. Gauges indicating the height of the water in the standpipe, and the consequent pressure, were placed at the pumping station of the water company, and also in the engine house of the city fire department. Excepting on rare occasions, the reservoir was kept supplied with water sufficient to produce the required pressure. No complaint concerning the character of the service or the amount of the pressure was made to the water company until after the’ institution of the present suit. The water company has since erected a new reservoir of more than double the capacity required in the contract, and of a greater height than the first reservoir. Since the erection of this new reservoir, there has been no complaint or question as to the pressure.</p> <p>(10) In repudiating its contract with the waterworks company, the city did not base its claim of right upon any inadequacy of supply, inefficiency of service, or quality of water furnished by the water company. The system had been in operation for 3% years, its water supply being derived then as now from the sources designated and approved by the city. During these years the surface washings from adjoining hills flowed into the stream during times of rain, and on such occasions the water was muddy. There was no request on the part of the city for the waterworks company to supply protection to the watershed, other than as existed then and now; nor was any request made that the water be filtered, or that the water tower be increased in either height or capacity. The city predicated its right to renounce the contract upon the ground of a want of authority in the preceding administration to bind the city by such a contract, for that it created an indebtedness forbidden by the Constitution of the state. The evidence makes it clear that the city was moved to this action, not only because it considered that it had the right so to do, but also because the contract was regarded as unfair and exorbitant. The facts and surrounding circumstances disclosed the evident purpose on the part of the city to either purchase the waterworks at a price satisfactory to it, or to make new agreements on more favorable terms for the use of the water from year to year, or to construct and operate its own system of waterworks. Failing to succeed in purchasing the waterworks, or in obtaining satisfactory agreements for the use of the water from year to year, the city submitted to its qualified voters a proposition authorizing it to issue bonds for the construction of an electric light plant, and also for the construction of a system of waterworks. Of the bonds so authorized, $10,000 have been issued, and the proceeds used in the construction of an electric light plant. The remaining $25,000 have not been issued or sold, but the city does not deny that its purpose is to use the proceeds of these bonds for the construction of a system of waterworks, unless it is prohibited by the court from doing so.</p> <p>(11) During the years succeeding 1895 the only water furnished by the water company for municipal public buildings was through one opening at the engine house of the fire department. The fountains mentioned in the contract to be supplied with water have not been maintained by the city.</p> <p>(12) The city levied an ad valorem tax on the property of the waterworks company for the year 1895. The amount of the tax so assessed not having been paid, the city caused a tax execution to be issued therefor, and caused the same to be placed in the hands of its city marshal for collection by process of law. Further proceedings on this execution have been temporarily enjoined by this court.</p> <p>(13) I find that no application has been made on the part of the city to test the system of waterworks, as provided in the order of this court of September 16, 1899.</p> <p>(14) Subsequent to the decision of the Supreme Court in the case of City of Dawson v. Dawson Waterworks Company, the waterworks company assigned to complainant the exclusive right to demand, collect, and receive the water rentals to be paid by the city of Dawson, as provided in the contract.</p> <p>(15) I find that the revenues of the waterworks company from and including the year 1895, exclusive of the rentals claimed to be due by the city, have been insufficient to pay the operating expenses and fixed charges.</p> <p>(16) I find that the American Pipe Manufacturing Company loaned to the waterworks company, from time to time, funds sufficient to meet the accruing interest on the outstanding bonds of the water company from September 1, 1895, up to and including March 1, 1899, amounting in the aggregate to $8,560. For these loans, checks were drawn payable to Dawson Waterworks Company, and the proceeds deposited to its credit. The coupons, as they fell due, were paid by the waterworks company to the trustee. No other notice was given the trustee that these payments were made other than from the ordinary revenues of the waterworks company. The coupons thus paid and taken up by the waterworks company were not assigned or delivered to the pipe company. I therefore find that the transaction constituted merely a loan by the pipe company to the waterworks company, with no express agreement, so far as the evidence discloses, that the coupons should be assigned to the pipe company, or that it should be subrogated to the rights of the bondholders therein.</p> <p>(17) The Columbia Avenue Company was without notice of the litigation between the city of Dawson and the waterworks company until after the decision of the Supreme Court of the state, of March 18, 1899.</p> <p>Conclusions of Daw.</p> <p>1. To the Jurisdiction. The answer sets up an objection to the jurisdiction on the ground that the suit is collusively brought by the complainant at the instance and for the benefit of the waterworks company, for the purpose of conferring jurisdiction on this court, 'and of avoiding the judgment of the Supreme Court of Georgia. It is contended that the waterworks company is the real complainant, and that its transfer to the Columbia Avenue Company of the exclusive right to collect the water rentals from the city of Dawson was merely colorable, and was intended to predicate a suit in this forum. The only effect of such a transfer, in so far as concerns the jurisdiction, would be to create the diversity of citizenship necessary to suit in the federal court. If the jurisdiction rests upon an independent ground, the diversity of citizenship is immaterial. The court, in overruling the demurrer in this case, decided that a federal question sufficient to sustain the jurisdiction was presented. It is therefore immaterial to inquire what motive prompted the waterworks company to make the assignment.</p> <p>One of the grounds of the demurrer was for want of equity. The overruling of the demurrer on this ground adjudicated the right of the complainant to institute and maintain this suit. That the waterworks company will be benefited, and that the suit was instituted at its instance, are questions that do not concern or affect the jurisdiction of the court, and I therefore conclude that the objection to the jurisdiction is not well taken.</p> <p>2. On the Merits. The leading question presented in this controversy concerns the effect of the decision of the Supreme Court of Georgia in holding the contract to be void, as between the city, and the waterworks company, on the ground that it created an indebtedness such as is forbidden to cities by the Constitution of the state.</p> <p>(1) The city contends that the question so involved and decided in that case is-res judicata as against the complainant in this case. The matter is properly the subject of a plea, rather than an answer; but, no objection having been taken, the question will be considered as if properly pleaded. This suit is upon a different cause of action from that in the state court. If it be treated as being between the same parties or their privies, it is well established that a right, question, or fact distinctly put in issue and directly determined in the first suit cannot be disputed in a subsequent suit. Such right, question, or fact is to be taken as conclusively established. The judgment, however, in another suit upon a different cause of action, operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. Southern Pac. R. Co. v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; New Orleans v. Citizens’ Bank, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. Ed. 202; Nesbit v. Independent District of Riverside, 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 195; Wilmington & Weldon R. Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72, 36 L. Ed. 972; Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 14 Sup. Ct. 592, 38 L. Ed. 450; Roberts v. Nor. Pac. R. Co., 158 ü. S. 1-30, 15 Sup. Ct. 756, 39 L. Ed. 873; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859. If, therefore, the question of the validity of the contract was distinctly put in issue, and directly determined by the Supreme Court of Georgia, its decision would be conclusive upon the parties to that suit and their privies. The complainant here was not a party to the state court litigation, but it is contended that it is a privy in right, and estate to the waterworks company, which was a party. A mortgagee is privy in estate to the mortgagor as to actions begun before the mortgage was given. As to suits subsequently begun, he is not a privy, nor is he bound by judgments or decrees therein against the mortgagor, unless he, or some one authorized to represent him, is made a party to the litigation. Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 14 Sup. Ct. 592, 38 L. Ed. 450; IIassail v. Wilcox, 130 U. S. 493, 9 Sup. Ct. 590, 32 L. Ed. 1001; Louisville Trust Company v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Larison v. Hager (C. C.) 44 Fed. 49; Southern Bank & Trust Co. v. Folsom, 75 Fed. 929, 21 C. C. A. 568; Central Trust Company v. Hennen, 90 Fed. 593, 33 C. C. A. 189. Louisville Trust Company v. City of Cincinnati, 76 Fed. 296, 22 C. C. A. 334, is closely in point. The Louisville Trust Company was the trustee under the mortgage to secure an issue of bonds by the Inclined Railway Company. The mortgage included franchises, rights of way, and easements. Subsequently the city of Cincinnati brought suit against the railway company in the state court, in which it was decided that certain street franchises enjoyed by the railway company had expired by limitation, while certain others were void. This judgment was affirmed by the Supreme Court of the state. The trust company brought suit against the city in the federal court, in which suit these questions were involved. The court, after declaring the franchise to occupy a public street created such a property right as was subject to assignment or mortgage, further said that the mortgagee could not be deprived of this security by a proceeding directly impeaching its validity and duration, without being made a party thereto. Hence I conclude that the complainant in this case was not a privy of the waterworks company as to the suit in the state court, so as to be conclusively bound thereby, and that the doctrine of res judicata does not apply to it.</p> <p>(2) It is insisted that the decision of the Supreme Court of Georgia declaring the invalidity of the contract will be regarded as Conclusive in this forum, in deference to the rule that the federal courts will follow the construction given constitutions and statutes by the highest court of the state. The general rule is as stated, but it is subject to important limitations and exceptions. The federal court, in construing the meaning of a state statute as to what contract is contained therein, and whether the state has passed any law impairing its obligation, is not bound by previous decisions in state courts, except when they have been so long and so firmly established as to constitute a rule of property, but will decide independently whether there is a contract, and whether its obligation has been impaired. County of Shelby v. Union & Planters’ Bank, 161 U. S. 149, 16 Sup. Ct. 558, 40 L. Ed. 650; L. & N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 L. Ed. 922; Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. 625, -29 L. Ed. 770; Mobile'& Ohio R. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. 968, 38 L. Ed. 793.</p> <p>In the leading case of Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359, the Supreme Court of the United States, on special consideration, distinctly stated the rule and its limitation as follows: “The federal courts have an independent jurisdiction in the administration of state laws, coordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient, but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions haVe been entered into, and rights have accrued thereon, under a particular state of the decisions, or when there has been no decision of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt.” The case on this point has been followed and approved in a great number of cases, wbicb need not be cite'd. See Bartholomew v. City of Austin, 85 Fed. 359, 29 C. C. A. 508.</p> <p>In Speer v. Board of County Commissioners, 88 Fed. 749, 32 C. C. A. 101. the question presented related to the validity of certain county warrant s. The Supreme Court of the state declared these warrants invalid. The holder of other warrants brought suit in the Circuit Court of the United States. The Circuit Court of Appeals for the Eighth Circuit declined to follow the decision of the state court, upon the ground that “decisions of state courts as to their statutes, which affect the validity of contracts between citizens of different states which were made, or under which rights were acquired, before there was a judicial construction of the statute which seemed to authorize the contracts, are not obligatory upon the courts of the United States.” The same Court of Appeals considered Clapp v. Otoe County, 104 Fed. 473, 45 C. C. A. 579, in which ease an action upon county bonds had been instituted. The bonds had been declared void by the Supreme Court of the state. The court declared the rule that “national courts uniformly follow the construction of the Constitution and statutes of a state given by its highest tribunal in all cases that involve no question of general or commercial law, and no question of right under the Constitution and laws of the nation.” It was pointed out that the plaintiff in that case had purchased the bonds prior to the decision of the state court, without notice of any defect in their execution; that upon this purchase he entered into a contract relation with the county, and by such purchase he acquired the right, under the Constitution and laws of the United States, to have his contract interpreted and his rights enforced in a court of the United States, and to invoke the independent judgment of that court upon the legal questions involved. The court, speaking through Circuit Judge Sanborn, said: “No decision of a state court, rendered after his rights under these contracts had vested, could forestall the judgment of a national court upon these questions, or deprive him of the right to invoke or relieve a federal court of the duty to accord its independent consideration and decision of his case. Much less could the decision of a state court, which studiedly ignored the rights of innocent purchasers of these bonds, and which was not rendered until 10 years after they were bought, deprive the purchaser of the right to the independent opinion of the federal court to which he presents them.”</p> <p>In Louisville Trust Company v. City of Cincinnati, 76 Fed. 296, 22 C. C. A. 334, Circuit Judge Lurton, speaking for the Circuit Court of Appeals, forcibly declared that if the decision of the state Supreme Court constituted a conclusive interpretation of the contracts or ordinances under which the mortgage, easements, and franchises originated, “the constitutional right of the complainant, as a citizen of a state other than Ohio, to have its right as a mortgagee defined and adjudged by a court of the United States, is of no real value. If this court cannot for itself examine these street contracts, and determine their validity, effect, and duration, and must follow the interpretation and construction placed on them by another court in a suit begun after its rights as mortgagee had accrued, and to which it was not a party, then the right of such a mortgagee to have a hearing before judgment, and a trial before execution, is a matter of form, without substance.” It was further said that the courts of the United States will not regard themselves as under any duty to conform to later state court decisions where contracts and obligations have been entered into before there has been any judicial construction, or as to which there have been conflicting decisions. In such a case the federal court will exercise its independent judgment, and will not be bound to follow the opinions of the state court construing such statute rendered after the rights involved in the controversy originated.</p> <p>Whether the decision of the Supreme Court of Georgia be regarded as in construction of the state Constitution, or as relating to a question of general commercial law in defining the meaning of the word “debt,” such decision is not binding upon this court unless it is in harmony with the plain language of the Constitution, or the settled judicial construction thereof existing at the time the contract was entered into, or the bonds issued and sold. The Columbia Avenue Company has a sufficient interest in this controversy to raise these questions and invoke the decision of this court thereon. In the ordinance creating the contract, it is expressly recognized that the water rental' should be payable to the waterworks, or to such trustee for its bonds as it might select. The Columbia Avenue Company, having been selected as such trustee, became the alternate payee, and occupied a contractual relation with the city. The mortgage given to secure the bonds conveyed and assigned to the trustee all of the rights and franchises of the water company, including the benefit of its contract with the city. Under this conveyance the trustee is interested in protecting and preserving the security, and to that end may institute and maintain its suit independently of the water company. Louisville Trust Company v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Consolidated Water Company v. San Diego (C. C.) 84 Fed. 369; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Schmidt v. Louisville C. & L. R. Co. (Ky.) 41 S. W. 1015. It therefore becomes of the first importance to ascertain the state of the law and the judicial construction thereof at the time the contract was entered into.</p> <p>The provisions of the Constitution of 1877, in force at the time, which bear upon the question under consideration, are as follows:</p> <p>“Debt of Counties and Cities not to Exceed Seven Per Cent. The debt hereafter incurred by any county, municipal corporation, or political division of this state, except as in this Constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of taxable property therein, without the assent of two-thirds of the qualified voters thereof, at an election for that purpose, to be held as may be prescribed by law; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this Constitution, may be authorized by law to increase, at any time, the amount of said debt, three per centum upon such assessed valuation.” Paragraph 1, § 7, art. 7, Const. 1877 (Code 1895, § 5893).</p> <p>“City Debts — How Incurred. Municipal corporations shall not incur any debt until provision therefor shall have been made by the municipal government.” Paragraph 1, § 10, art. '7, Const. 1877 (Code 1895, § 5897).</p> <p>The question as to what created a debt, within the meaning of this Constitution, first came before the Supreme Court of Georgia in the case of Hudson v. City of Marietta (Sept, term, 1879) 64 Ga. 286. In that case the city of Marietta exchanged an old for a new fire engine, incurring an indebtedness of $3,000 on account of the exchange. The court, by two justices, declared that such a transaction created a debt, within the meaning of the Constitution.</p> <p>The next case was that of Spann v. Webster County (Feb. term, 1880) 64 Ga. 498. Webster county purchased a safe, incurring an indebtedness therefor. The court, following Hudson v. Marietta, declared such an indebtedness was forbidden by the Constitution.</p> <p>The question next came before the court in the case of Mayor of Rome v. McWilliams (Sept, term, 1881) 67 Ga. 106. The city levied a tax to cover an anticipated expenditure for the fitting up of municipal offices. It was alleged to be the purpose of the city to contract an indebtedness on this account. The court, speaking through Mr. Justice Speer, used the following language: “An obligation arising under a contract on the part of a municipal corporation to pay for work when and as it shall be performed in the future does not constitute or ripen into an indebtedness, within the meaning of the Constitution, till at least the performance of the work. [Dively v. City of Cedar Falls] 27 Iowa, 228; [Weston v. City of Syracuse] 17 N. X; 110. If this were not so, then it would be impossible, in a majority of instances, to even contract for the most necessary public building without a prior levy and deposit of money in the treasury. The obligation to pay so far as the time of its inception as between the parties is concerned, is one thing, and an actual indebtedness, within the meaning of the Constitution, is another. I may enter into a contract for an architect to build me a house, but, if he never does the work, I owe him nothing. So, if I pay him as he progresses, I will not be his debtor. So, if I contract to pay him when the work is done, I owe him nothing till the contract is fulfilled, and if, on its fulfillment, I discharge it, I cannot he.said to have incurred a debt, in the sense the Constitution prohibits corporations from incurring.” Chief Justice Jackson concurred in the opinion and the reasons given therefor, and distinguished the case from those of Hudson v. Marietta and Spann against Webster County. Mr. Justice Crawford dissented, principally for the reason stated by him as follows: “But over and above all this comes the Constitution, and declares, among other things, that no county, municipal corporation, or political division of the state shall incur any new debt, except for a temporary loan to supply casual deficiencies of revenue, without the assent of two-thirds of the qualified voters thereof. It is admitted that a new debt could not be incurred except as above provided. Then the question is whether a city can levy a tax with which to pay a future liability that it could not legally incur. If the right exists to make the contract, the time when the payment is to be made is wholly immaterial. It neither enlarges the power, nor changes the nature of the liability. It is the incurring a new debt, whether paid when the work is done, or five years thereafter. It is a debt from the making of the bargain until paid, be that when it may. To say that for a new debt to be incurred, with which to build a town hall, without first submitting it to the people, would be unconstitutional, and to say that the levy of a tax to build a town hall without submitting that to the people would be constitutional, does not seem to me to be either law or logic. This provision in the Constitution was to give the taxpayers the right to say whether the expenditure should be made, and to require their assent before the taxes should be laid for such expenditure.” In this dissenting opinion Mr. Justice Crawford makes no reference to the cases of Hudson v. Marietta and Spann v. Webster County, nor does he appear to predicate his opinion thereon.</p> <p>In City of Conyers v. Kirk & Co. (March term, 1887) 78 Ga. 480, 3 S. E. 442, it appears that the city had contracted to purchase lamps and gasoline for lighting the streets, intending to pay cash therefor. The lamps were used by the city for a limited time, and the gasoline purchase was consumed. The city declined to make payment for several reasons. In discussing the case, Mr. Chief Justice Bleckley uses the following language, citing Mayor of Rome v. McWilliams, 67 Ga. 106, as being in point: “The debt resulted from a breach of the contract, not from the making of it. Against paying a debt so originating there is no constitutional impediment. When a cash purchase is made, there is no expectation that any debt will exist, and there was no such contemplation in this case. If we take the evidence, as we do, most favorably for the plaintiffs, there was no intention that any debt should arise. It was contemplated that payment should be made as soon as the articles were delivered, and the reason indicated in the record why payment was not then in fact made was the accidental absence of the city treasurer from his office. So that this debt (and it is a debt now) became such not by virtue of making the contract, but by virtue of breaking the contract; and surely there never can be and never will be any law against paying a debt which arises from default in making a cash payment at the time the debtor ought to have made it, the cash sufficient for the purpose being then in the debtor’s treasury.”</p> <p>Butts v. Little, 68 Ga. 272, was decided in 1881. It was there held that a eontract by a county for the erection of a building at a specified price, payable as the work progresses, and to be completed within a given time, where the amount to be paid was more than could be lawfully raised by taxation, was invalid, as creating an indebtedness without complying with the constitutional requirements. The court said, however, that if the parties to the contract could so modify it that the cost of the building could, as it fell due, be met annually thereafter by a levy of lawful taxes, the contract would be valid. The court does not refer to the former case of Mayor of Rome v. McWilliams, with which case the doctrine first declared hardly seems to be consistent.</p> <p>At the time that the contract under consideration was entered into, the case of Lott v. Mayor of Waycross, 84 Ga. 681, 11 S. E. 558, had been decided by the superior court of the state, and was then pending upon writ of error in the Supreme Court. In this case it appeared that the city had entered into a written contract with one Albertson whereby it was agreed that he should erect a plant and furnish a given number of electric lights for the city for the term of 10 years, in consideration whereof the city was to pay the sum of $2,000 a year, payable monthly. The plaintiff filed a petition for injunction against the further carrying out of the contract on the part of the city, upon the ground that the contract was the incurring of a debt, under the Constitution of the state, without complying with the prerequisite submission to the legally qualified voters of the city. The court refused the injunction, and the plaintiff excepted. The opinion of the Supreme Court is brief and direct. It was delivered by Mr. Justice Blandford, and is as follows : “It is clear to our mind that the mayor and council of Waycross have a right to contract an annual indebtedness for the purpose of supplying lights to the town, and we do not think such a contract would be an indebtedness such as is required by the Constitution to be submitted to the vote of the people of the town. Whether this contract incurs an indebtedness which is required to be submitted to the voters of the town, under the Constitution, it is not necessary for us now to decide. It may be that the question may never arise, even under this contract, if the sum stipulated to be paid annually for the supply of lights is paid as it becomes due; and if this is a reasonable expense to be incurred by the city — and we do not see why it is not • — then the question will never arise. Should the city make default of payment, then the question might arise, and it would have to be decided whether this was such a contract as imposed upon the city an indebtedness such as is contemplated by the Constitution to be submitted to the people. ‘Sufficient unto the day is the evil thereof.’ Let the light shine in Waycross.” It is true that the court in this case does not decide whether the contract created an indebtedness such as is required under the Constitution to be submitted to the qualified voters of the town. Taking this case, however, in connection with that of Mayor of Borne v. McWilliams and Butts v. Little, it appears-to sustain the proposition that a contract for supplies or service to be paid for at stated times, as delivered or performed, does not create an indebtedness within the constitutional sense. If this be true, then, upon authority of Conyers v. Kirk, 78 Ga. 480, 3 S. E. 442, no indebtedness would arise under this contract, except from a breach thereof, and against paying a debt so-originating there is no constitutional impediment. That Lott v. Waycross is susceptible of this construction is evidenced by the fact that it is cited by the Supreme Court of the United States, in the case of Walla Walla v. Walla Walla Water Company, 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341, to sustain the proposition that such a contract did not create an indebtedness.</p> <p>Such was the state of the Georgia decisions at the time this contract was entered into. The contract provided that the city should annually meet the water rentals as they accrued, by the levy of an annual tax. If these water rentals should be paid as .they accrued, there would never be any indebtedness, although the obligation to take the water and pay therefor would extend from year to year. As in City of Conyers v. Kirk & Co., 78 Ga. 480, 3 S. E. 442, it was contemplated that payment should be made as the service was rendered, “and there never can be and never will be any law against paying a debt which arises from default in making a cash payment at the time the debtor ought to have made it.” So, in Lott v. Waycross, 84 Ga. 681, 11 S. E. 558, the court said that, if the sum stipulated to be paid annually for lights should be paid as it became due, the question whether the contract created a debt would never arise, inasmuch as the expense was a reasonable one to be incurred by the city. The principle in these cases was consistent with that declared in Borne v. McWilliams, 67 Ga. 106, and Butts v. Little, 68 Ga. 272, that the obligation to pay for work when and as it shall be performed in future, by an annual levy of taxes sufficient to meet the accruing installments, does not create an indebtedness, within the meaning of the Georgia Constitution. These cases certainly warrant the conclusion that, at the time the contract was entered into with 'the water company, contracts of that character had not been declared invalid by the Supreme Court of Georgia. Indeed, that court has deemed it necessary to overrule Butts v. Little (Lewis v. Lofley, 92 Ga. 804, 19 S. E. 57; Dawson v. Waterworks Co., 106 Ga. 727, 32 S. E. 907), and to overrule, qualify, or distinguish several of the other cases referred to in this report. It capnot, therefore, fairly be said that there was such a settled course of judicial decisions in Georgia on this question, at the time of the making of the contract, as to constrain the courts of the United States to follow later decisions of the state court, especially in a case where the rights of innocent third persons are concerned. Subsequent to the making of this contract, and after the rights of the complainant and the bondholders had been acquired, the Supreme Court of Georgia unequivocally held that contracts of this character constituted the creation of an indebtedness, within the Inhibition of the state Constitution. Cartersville Imp. Co. v. Cartersville, 89 Ga. 683, 16 S. E. 25; Cartersville Water Co. v. Cartersville, 89 Ga. 689, 16 S. E. 70; City of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 32 S. E. 907. I therefore conclude that this court is not bound to follow the later decisions of the state court as to the validity of the contract in question, but should exercise its, independent judgment with reference thereto.</p> <p>(3) The contract between the city and the water company contemplated that the company should maintain and perform the water service therein specified from year to year for a period of 20 years. As this service should be performed, the city obligated itself to pay therefor the sum of $2,000 each year, payable semiannually. If the water company should fail to perform the service, the city would be under no obligation to pay. In no event was it liable to pay any installment until the service for which the payment was due had been rendered. The idea of credit did not enter into the transaction. The city did not assume to pay a present indebtedness in future installments, as would have been the case, had it issued bonds payable in future. The whole purpose of the contract was to encourage the construction of a system of waterworks by a private corporation, and to provide for supplying the city and its inhabitants with a water service in accordance with certain specifications. To this end the city gave the right to the use of its streets for the laying of mains and pipes, and agreed to pay semiannually in each year for ?0 years a stipulated sum for the free and unrestricted use of the water for fire protection. Upon the faith of these obligations on the part of the city, the water company expended a large amount of money in the construction of a system, which was tested and accepted by the city as satisfactorily complying with the requirements of the contract. That such a contract does not create'a debt is not an open question in this forum. Upon this point the ease of Walla Walla v. Walla Walla Water Company, 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341, is conclusive. In that case the city obligated itself to pay the water company $1,500 annually in quarterly installments, for 25 years, for the use of the water for fire protection. The charter of the city limited the amount of indebtedness it could incur. The sum of the installments agreed to be paid for the period named would, if treated as a debt, cause the indebtedness of the city to exceed the charter limitations. The court, after declaring that the weight of authority, as well as of reason, favors the construction that a municipal corporation may contract for a supply of water or gas, or like necessity, and may stipulate for the payment of an annual rental for the gas or water furnished each year, notwithstanding the aggregate of its rentals during the life of the contract may exceed the city’s authorized indebtedness, says: “There is a distinction between a debt and a contract for a future indebtedness to be incurred, provided the contracting party perform the agreement out of which the debt may arise. There is also a distinction between the latter case and one where an absolute debt is created at once, as by the issue of railway bonds, or for the erection of a public improvement — though such debt be payable in the future by 'installments. In the one case the indebtedness is not created until the consideration has been furnished. In the other the debt is created at once, the time of payment being only postponed. In the case under consideration the annual rental did not become an indebtedness, within the meaning of the charter, until the water appropriate to that year had been furnished. If the company had failed to furnish it, the rental would not have been payable at all, and, while the original contract provided for the creation of an indebtedness, it was only upon condition that the company performed its own obligation.” To this proposition the court cites a number of authorities, and continues i “The obvious purpose of limitations of this kind in municipal charters is to prevent the improvident contracting of debts for other than the ordinary-current expenses of the municipality. It certainly has no reference to debts incurred for the salaries of municipal officers, members of the fire and police departments, school-teachers, or other salaried employés to whom the city necessarily becomes indebted in the ordinary conduct of municipal affairs, and for the discharge of which money is annually raised by taxation. For all purposes necessary to the exercise of their corporate powers they aré at liberty to make contracts regardless of the statutory limitation, provided, at least, that the amount to be raised each year does not exceed the indebtedness allowed by the charter. Among these purposes is the prevention of fires, the purchase of fire engines, the pay of firemen, and the supply of water by the payment of annual rental therefor.”</p> <p>The Dawson Waterworks Case, 106 Ga. 696, 32 S. E. 907, in which the Supreme Court of Georgia reached a different conclusion in construing the identical contract, has been carefully considered. The court recognized that its ruling on this point was “in direct conflict with a decision of the highest court in the land (the Walla Walla Case), as well as with the current of American authority on the subject.” Its decision was based upon the public policy of the state, as read in the light of its past history. Chief Justice Simmons concurred specially, considering himself bound by a former decision in the case (Mayor and Council of Dawson v. Dawson Waterworks Co., 102 Ga. 594, 29 ¡3. E. 755). He says: “If it were an original question, I should nold, in accordance with nearly all the other courts of the Union, including the Supreme Court of the United States, when construing similar provisions of constitutions or statutes, that the making of a contract or agreement by municipal authorities for the supply of gas or water for a term of years, for a certain sum, to be paid annually, is not a debt, within the meaning of the Constitution. It is difficult for me to understand now, after full argument and reflection, how the making of the same contract by the same authority for one year, when there is no money in the treasury to pay it, and taxes are to be levied to meet the obligation, is not a debt, when, if the same authority makes a contract for the same purpose for two years or five years, it is a debt.”</p> <p>It is interesting to note that the Supreme Court of Georgia has quite recently handed down an elaborate opinion in construction of what constitutes a debt of a city, under the constitutional provision under consideration in the instant case. In these cases (Epping v. City of Columbus, 43 S. E. 803, and Roff v. Mayor of Calhoun, 43 ¡3. E. 803, decided March 12, 1903) the respective cities had issued coupon bonds for the purpose of erecting waterworks. The future interest, represented by coupons, if added to the amount of the principal, would exceed the indebtedness that could be legally incurred. The court said: “The debt of a municipal corporation, within the meaning of that provision of the Constitution which prohibits such a corporation from incurring a debt that exceeds 7 per centum of the assessed valuation of all the taxable property within the municipality, is to be ascertained by adding to the principal of all outstanding indebtedness the amount of all accrued interest that may be past due and payable on the day the amount of the debt is to be fixed. In ascertaining the amount of such debt, future interest that is not due on the day it becomes necessary to fix the sum of indebtedness is not to be counted. Unearned interest is not, within the true intent and meaning of the Constitution, a part of the debt of the municipality.” The court referred to the Dawson Waterworks Case, 106 Ga. 696, 32 S. E. 907, and drew a distinction predicated upon the statement that “the contract sought to be enforced in that case related to a principal liability payable in annual installments.” This distinction is not apparent to the mind of the master, who finds it difficult to understand how an obligation to pay future water rentals as they accrue can differ in principle from a promise to pay future interest as it may be earned.</p> <p>I conclude on this branch of the case that the contract in question did not create a “debt,” within the meaning of the Georgia Constitution.</p> <p>(4) It is contended on the part of the city that no exclusive franchise to occupy the streets and maintain a water system could be lawfully granted, and from this it is argued that the franchise may he revoked, and the city may use its streets for its own system. The grant of a right to supply water to a city and its inhabitants, through pipes and mains laid in the streets, upon the condition of the performance of its service by the grantee, is the grant of a franchise in consideration of the performance of a public service, and, after performance by the grantee, is a contract protected by the Constitution of the United States. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341, and cases there cited. The right of a city to do those things necessary to supply its inhabitants with water for domestic use, or to provide the city with protection against fire, is the settled law of Georgia. Dawson v. Dawson Waterworks Co., 106 Ga. 709, 32 S. E. 907; Frederick v. Augusta, 5 Ga. 561; Rome v. Cabot, 28 Ga. 50; Wells v. Atlanta, 43 Ga. 67. As an incident to the principal undertaking, the city possesses the power to grant the use of its streets, and to contract with a private company for an exclusive supply of water for fire protection. It is unnecessary to decide whether the city may grant an exclusive franchise for a long number of years in excess of the contractual period between the city and the water company. Should a third person in good faith seek a franchise for the use of the streets for a similar purpose, the point would be properly involved. The question now presented is whether the city can directly revoke the grant, or itself use the streets in competition with the water company, in the face of its contract with the water company. The contract does not in terms express an agreement that the city will not, during the life of the contract, erect its own system for the purpose of supplying its inhabitants with water, but it can hardly be doubted that such is the fair implication and reasonable intendment of the contract. The city, having induced the expenditure of money on faith of the promise that it would grant the exclusive use of the streets for the laying of pipes and mains by the water company, and having contracted to pay for the use of water for fire protection for a term of years, will not be permitted, in equity, to disregard its agreements by itself entering into ruinous competition with the other party before the expiration of the contractual term. Southwest Missouri Light Co. v. City of Joplin (C. C.) 101 Fed. 23; Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341. I conclude that the city may not, prior to the expiration of the term for which it contracted for a supply of water for fire protection, directly revoke the grant of the franchise for the use of its streets by the water company, or indirectly impair or destroy the value of the franchise by itself entering into competition with its grantee. To this extent the right is protected by the obligation of the contract entered into. St. Tammany Water Co. v. New Orleans Water Co., 120 U. S. 64, 7 Sup. Ct. 405, 30 L. Ed. 563; Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510; Bartholomew v. City of Austin, 85 Fed. 359, 29 C. C. A. 568.</p> <p>(5) I have found that during periods of continuous rainfall the water supplied is muddy, and to some extent contaminated by reason of the surface washings from the watershed. I have also found that at times the reservoir leaked, and that the required pressure was not at all times maintained. The quality of the water is the same as it was during the years the city accepted it as satisfactory. The watershed and its condition were substantially the same then as now. There is no requirement in the contract that the quality of the water should be other than that furnished in its natural state from the sources of supply designated and accepted by the city. It was not required that the water should be filtered, or otherwise rendered more fit for domestic use. An act of the General Assembly made it a misdemeanor to contaminate the watershed so as to affect the quality and purity of the water, and the police supervision of the city was extended over this territory. An ordinance of the city directed the mayor to appoint a committee, whose duty it should be to superintend the waterworks and water supply of the city, and see that the water company complied with their obligations in furnishing water to the city and private consumers. Prior to the repudiation of the contract by the city, no complaint as to pressure or quality of water had been made. No objection of any kind had been presented, and the city seems to have been satisfied with the service and the quality of the water. At no time since has any complaint been made, until the filing of the answer in this case. Within a reasonable time thereafter the water company erected a new standpipe, of larger capacity and greater pressure, which completely remedied the occasional lack of pressure complained of. At no time has the city filed formal complaint, specifying the grounds of complaint, or called for a test, or given the water company an opportunity of remedying defects, if such existed. It repudiated the contract, and refused to pay the water rentals as they fell due, thus depriving the water company of a large part of its revenue. Nevertheless it continued to receive the benefits of the contract. In circumstances such as these, the city cannot invoke a forfeiture, nor can it plead the facts as a defense to the right of the complainant to relief. Pike’s Peak-Power Co. v. City of Colorado Springs, 105 Fed. 1, 15, 44 C. C. A. 333; Walla Walla v. Walla Walla Water.Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341.</p> <p>(6) The contract, among other things, provided that, in consideration of water to be furnished the public municipal buildings and two public fountains, the city obligated itself to remit to the water company any and all license fees, taxes, dues and charges which might any time be levied or assessed by the city against the company or its plant. The city levied an ad valorem tax on the property of the water company for the year 1895, caused execution to be issued therefor, and placed the same in the hands of its marshal for collection. Further proceedings on this execution have been temporarily enjoined by this court. The complainant contends that this agreement is not to be construed as an exemption from taxation, but that it stipulates for a service that should be received in lieu of taxes, and as a full and fair equivalent therefor. It is urged on the part of the city that the stipulation is an exemption from municipal taxation, or at least a commutation of taxes, and, as such, void under the Constitution and laws of Georgia. I think it clear that the agreement is to be construed as in commutation of city taxes. Cooley on Taxation (2d Ed.) 234. License or occupation taxes may be commuted by a city, but, under the Constitution and laws of Georgia, as uniformly construed by the. Supreme Court of the state, there can be neither exemption from, nor commutation of, taxes on property. The language of the Constitution (paragraph 1, § 2, art. 7; Code 1895, § 5883) is as follows: “All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Paragraph 4 (section 5886) declares that all laws exempting property from taxation, other than certain enumerated property, shall be void. Under these constitutional requirements, it has been held by the courts that property cannot be classified for the purposes of taxation, nor can taxes on property be commuted, nor any rule of taxation .applied excepting that laid down; that is to say, a strict ad valorem tax on all property subject to be taxed within the taxing district. These cases are so numerous and uniform, it is deemed unnecessary to cite them. At the time the contract under consideration was entered into, there was no case qualifying the rigid doctrine as above expressed. In 1892, however, the Supreme Court of the state, in the case of Cartersville Gas Company v. Mayor of Cartersville, 89 Ga. 683, 16 S. E. 25, held as follows: “While a city cannot exempt a gas company from municipal taxation, it can contract to pay for gas a stipulated sum per lamp, and in addition thereto a sum for all the lamps supplied, equivalent to the amount of taxes imposed upon the company, provided this additional sum is a fair and just allowance to compensate for the actual value of the light service, and the stipulation is bona fide, and not in the nature of an evasion of the law prohibiting exemption from taxes.” At the same term the court held in the case of Cartersville Waterworks Company v. Mayor of Carters-ville, 89 Ga. 689, 16 S. E. 70, that a city had no power to exempt the property of the water company from municipal taxation by contract, and the attempt to grant such exemption was not effectual. The company could neither take the exemption by way of gratuity, nor purchase it by way of commutation. In that ease the contract entered into between the city and the water company provided that the water company should erect a system of waterworks, and supply with water for fire purposes a certain number of hydrants at a given price; also to supply with water for the payment of city license and taxes for the first 10 years of this contract two drinking fountains, with quarter inch openings of continual flow for man and beast, at such places on the mains as designated by the council. Subsequently the city levied an ad valorem tax on the property of the water company. The agreement above recited was pleaded as against this tax levy. The court held the agreement void, as being an exemption or commutation of taxes. The facts in that case are very similar to those in the instant case. In subsequent cases the court has uniformly held that no escape can be had from the burden of an ad valorem tax on property, whether by contract or under legislative sanction. Atlanta National Building & Loan Association v. Stewart, 109 Ga. 80, 35 S. E. 73. The construction thus given by the highest court of the state to its Constitution with respect to taxation will be followed by the federal courts. Games v. Dunn, 14 Pet. 322, 10 L. Ed. 476; State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663. I conclude on this branch of the case that the agreement between the city and the water company provided for a commutation of city taxes, and is therefore void under the Constitution and laws of the state of Georgia. The water company, however, upon an accounting, will be entitled to be paid or have credit for the value of the water actually supplied the city under this agreement. The Circuit Court of Appeals for this circuit, in the case of Bartholomew v. City of Austin, 85 Fed. 359, 29 C. C. A. 568, held that, where a city undertakes to exempt from taxation the property of a water company in consideration of water furnished the city for certain purposes, if such exemption proves to be void, the company can recover for water furnished under the arrangement.</p> <p>(7) I have found that in point of fact the maturing interest coupons upon the bonds from September 1, 1895, to March 1, 1899, was paid by the water company from funds loaned to it for that purpose by the American Pipe Company, and that the transaction was merely a loan by the pipe company to the water company, with no agreement that the paid coupons should be assigned, or that the pipe company should become subrogated to the rights of the bondholders. Upon these facts, I conclude that the complainant is not entitled to recover in behalf of the pipe company the interest so paid. When the interest was paid to the trustee by the water company, without notice or reservation, such payment was general, and the indebtedness represented by the coupons was extinguished. The trustee, having once received payment, cannot again enforce it, especially in the interest of one who is not a party to this proceeding, and between whom and the trustee there is no privity of contract. If the pipe company has any legal or equitable rights arising out of the transaction, it must enforce them in its own behalf in a proper suit brought for that purpose.</p> <p>(8) The right of the complainant to maintain this suit, in so far as concerns the jurisdiction of this court both as a court of equity and as a court of the United States, has been adjudicated on demurrer. The relief to which the complainant is entitled under the facts of the case remains to be considered.</p> <p>The obligation of a contract may be impaired by subsequent judicial decisions as well as by subsequent legislation. Butz v. City of Muscatine, 8 Wall. 575, 19 L. Ed. 490. An ordinance of a city denying liability on a contract with a waterworks company is legislation affecting the obligation of the contract, under the Constitution and laws of the United States; and, where the city has held an election to authorize án issue of bonds.to buy or construct waterworks of its own, the water company is entitled to maintain a. suit for equitable relief in advance of actual proceedings by the city to impair the company’s rights under the contract. Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 22 Sup. Ct. 585, 46 L. Ed. 808; Los Angeles v. Los Angeles City Water Company, 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 886.</p> <p>The defendant city of Dawson has renounced and repudiated the contract with the water company, as being void, and in this it has been sustained by the Supreme Court of the state. The qualified voters of the city have, at an election held for that purpose, authorized the city to issue bonds for the construction of waterworks to be operated by the city. These bonds have been issued, and would have been sold but for this litigation. I conclude that these facts, as well as the other facts found, entitle the trustee to equitable relief, and bring the case within the rule of law expressed. This suit is proceeding in the name of the trustee as complainant, for the benefit of bondholders, and in order to protect the security for the bonds. An essential part of this security consists in the contract by the city for payment of water rentals as the service should be performed by the water company. The trustee was, under the contract, made an alternate payee. Its right to collect the water rentals upon default of payment of interest by the water company was confirmed in the mortgage given to secure the bonds, and the exclusive right to make such collection has been assigned by the water company, after default, to the trustee. It follows that the trustee has the right to enforce the performance of these obligations in this suit. A court of equity, having obtained jurisdiction of the parties and of the subject-matter, will make its jurisdiction effectual for complete relief, and in such suit will enforce a contract between the city and the water company made prior to the issuance of the bonds, under which contract the city agreed to pay hydrant rentals to the mortgage trustee for the benefit of the bondholders. Fidelity Trust & Guaranty Company v. Fowler Water Company (C. C.) 113 Fed. 560, and cases there cited on pages 571 and 572.</p> <p>The trustee is entitled to an injunction against the city, forbidding it to construct, maintain, or operate a system of waterworks of its own in competition with the water company, or for the purpose of supplying the city with water for fire protection and municipal use; and the injunction heretofore granted, temporarily restraining the city from issuing bonds for this purpose, should be made perpetual. It would seem that the complainant is further entitled to a mandatory injunction against both the city and the water company, requiring them, and each of them, to specifically perform the contract, as essential to the protection of the security for the bondsl In Union Pacific R. Co. v. Chicago, R. I. & P. R. Co., 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265, the Supreme Court decreed specific performance of a continuing agreement for trackage rights as between railway companies, basing its opinion on this point on the former case of Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843. The court also cites, upon this point, Franklin Telegraph Company v. Harrison, 145 U. S. 459, 12 Sup. Ct. 900, 36 L. Ed. 776; Prospect Park & C. I. R. Co. v. Coney Island & B. R. Co., 144 N. X. 152, 39 N. E. 17, 26 L. R. A. 610; and Denver & R. G. R. Co. v. Ailing, 99 U. S. 463, 25 L. Ed. 438. In the Union Pacific Case the court said: “But it is objected that equity will not decree specific performance of a contract requiring continuous acts involving skill, judgment, and technical knowledge, nor enforce agreements to arbitrate, and that this case occupies that attitude. We do not think so. The decree is complete in itself, is self-operating and self-executing, and the provision for referees in certain contingencies is a mere matter of detail, and not of the essence of the contract. It must not be forgotten that, in the increasing complexities of modern business relations, equitable remedies have necessarily and steadily been expanded, and no inflexible rule has been permitted to circumscribe them. As has been well said, equity has contrived its remedies ‘so that they shall correspond both to the primary right of the injured party, and to the wrong by which that right has been violated,’ and ‘has always preserved the elements of flexibility and expansiveness, so that new ones may be invented, or old ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed.’ Pom. Eq. Jur. § 111.” The cause of action arising upon a failure to pay water rentals due under a contract after the service has been performed by the water company is a legal cause of action, and the legal remedy is ordinarily adequate. Raton Waterworks Co. v. Raton, 174 U. S. 360, 19 Sup. Gt. 719, 43 L. Ed. 1005.</p> <p>In the case under consideration, however, a court of equity has taken jurisdiction of the whole controversy at the suit of the trustee, who has an equitable right to enforce the contract for the benefit of the security of the bonds. If I am correct in my findings of fact and conclusions of law as contained in this report, it follows that the complainant is entitled to full and complete relief during the entire life of the contract. A breach of this contract on the part of either the water company or the city would materially affect the security. Should the city refuse to pay future water rentals after they had accrued, the remedy of the trustee would be either in an action at law in the state court, inasmuch as the annual rental does not exceed the sum or value of $2,000, or by supplemental and ancillary bill in this cause and in this court. This court, having assumed jurisdiction of the entire controversy, will not remit the complainant for further relief to the courts of another sovereignty. The remedy by supplemental bill in this court would be allowed only in the exercise of the equitable jurisdiction of the court. The complainant would thus appear to be without a plain, complete, and adequate remedy at law for future breaches of the contract as against the city. Should the water company fail or refuse to comply with its obligations under the contract, the complainant would have an action for damages for such breach; but it appears that the water company owns no property other than that covered by the mortgage to the trustee,. so that a suit for damages against it would not measure up to the standard of an adequate legal remedy. Hence I conclude that the complainant is entitled to a decree as against both the city and the water company, requiring them, and each of them, to specifically perform the contract between them.</p> <p>General Conclusions.</p> <p>Upon the whole case I find and conclude as follows:</p> <p>(1) That the objection to the jurisdiction is not well founded, inasmuch as the jurisdiction rests upon the federal question presented, without regard to the citizenship of the parties.</p> <p>(2) That the doctrine of res judicata is not applicable to the complainant in this case, for the reason that the complainant was not a party or privy to the state court suit.</p> <p>(3) That this court is under no obligation to follow the decisions of the highest court of the state, rendered after the contract in question had been entered into, and the rights of the complainant and those it represents had been acquired thereunder; that the decisions of the state courts prior to the execution of the contract were not so long and so firmly established as to constitute a rule of property; and that this court will decide independently whether there is a contract, and whether its obligation has been impaired.</p> <p>(4) That the contract between the city and the water company did not create a debt, within the meaning of the Constitution and the laws of the state of Georgia, but that such contract is valid and enforceable.</p> <p>(5) That the exclusive franchise granted by the city to the water company to use the streets and maintain its system of waterworks cannot be revoked by the city in its own interest, nor can its value be impaired by competition on the part of the city itself within the term of twenty years, during which the city obligated itself to take and pay for the water for fire protection.</p> <p>(6) That the city cannot, under the facts of this case, forfeit the rights and franchises of the water company for inefficient service, or for a failure to supply water of a higher quality of purity, nor can it plead such facts in bar of the equitable relief sought.</p> <p>(7) That the agreement to accept water for municipal use in commutation of city taxes is inoperative and void under the Constitution and laws of the state of Georgia.</p> <p>(8) That the complainant is not entitled to set up and enforce in this suit any rights, legal or equitable, that the American Pipe Company may have acquired by reason of furnishing the water company with funds to pay maturing interest coupons on its bonds.</p>

In Equity. On motion for preliminary injunction. On July 30, 1903, the Mercantile Trust & Deposit Company of Baltimore filed a bill in the Circuit Court against the. city of Columbus.

<p>1. Removal oe Causes — Motion to Remand — Presumption of Regularity of Procedure in State Court.</p> <p>Where, in a suit by stockholders of a corporation, brought in a state court, relief was granted to the plaintiffs, their right to which was affirmed on appeal by the highest court of the state, on a subsequent removal of 'the cause, after the filing of supplemental pleadings, it will be assumed by the federal court, prima facie, at least, and for the purposes of a motion to remand, that, under the laws of the state, plaintiffs had the right to maintain the suit in their own names to enforce the rights asserted in their pleadings, and that the pleadings they were permitted to file in the state court were appropriate under the state practice.</p> <p>2. Same — Citizenship of Parties.</p> <p>Where plaintiffs sued as individuals, and the courts of the state in which the suit was brought sustained their right to maintain their suit in such capacity, their individual citizenship must determine the right of a defendant to remove the cause, notwithstanding an averment in the petition for removal that they sued as stockholders of a corporation, and that the recovery they sought was in the sole right and for the benefit of such corporation.</p> <p>ji 2. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>3. Same — Coepobation of Several States.</p> <p>A petition for removal filed by a defendant railroad company stated that it was a corporation incorporated under the laws of a number of different states, among which were the states of Indiana and Illinois; that it was formed by the consolidation of corporations of said several states; that the cause of action sued on arose out of a contract for the use of a bridge across the Ohio river owned by a Kentucky corporation of which complainants were stockholders, which contract was made by an Indiana railroad company subsequently consolidating with others to form the defendant. It further averred, as a conclusion from such facts, that, in respect of the obligation sued on, defendant was a corporation of the state of Indiana, and no other state. It did not appear in what state defendant was first incorporated, where its general offices were, where the cause of action arose, nor whether its assumption of the contract and its use of the bridge for which complainants sought to recover were in its capacity of an Indiana corporation or generally. Held that, in the absence of any statement in complainant’s pleadings to show that defendant was sued as a citizen of Indiana alone, the facts alleged in the petition did not warrant such a finding, and, it being shown that one of the complainants was a citizen of Illinois, the cause was not removable on the ground of diversity of citizenship.</p> <p>á. Same.</p> <p>The general rule is that jurisdiction on removal must be clear, in order to justify the federal court in retaining the case.</p>

<p>1. Negligence — Dangerous Articles — Liability oe Manufacturer.</p> <p>A manufacturer who places on the market an article which is dangerous under the name of one which is not dangerous may be liable for an injury resulting to a purchaser from its use in the manner in which it is intended to be used, although such purchaser did not buy from the manufacturer, and there is no direct contractual relation between them.</p> <p>2. Same — Acts of Agents — Liability of Principal.</p> <p>One employed by a refining company to sell and distribute oil to customers, being paid by a commission on the amount of sales, is an agent or servant of the company, which is liable for acts of negligence in the conduct of the business on the part of the agent or others employed by him.</p> <p>3. Same — Action for Personal Injury — Question fob Jury.</p> <p>There can be no recovery against a manufacturer of kerosene oil purchased by plaintiff from a dealer for an injury resulting to plaintiff from its explosion, claimed to have been due to its being mixed with gasoline, which reduced it below the legal standard of safety, where there is no direct evidence of such mixture, or whether, if there was, it occurred before or after the delivery of the oil by defendant to the dealer, and where the circumstantial evidence afforded no ground for determining such questions except by conjecture; and such evidence does not warrant the submission of the case to the jury.</p> <p>4. Same — Contributory Negligence — When Question for Court.</p> <p>On an issue as to contributory negligence, if there is no dispute as to the facts and the circumstances surrounding the facts, it is the duty of the court to determine the issue as a matter of law, and to instruct the jury accordingly.</p> <p>5. Same — Pouring Kerosene Oil from Can on Live Coals.</p> <p>Plaintiff poured kerosene oil from a can on wood and kindling in a stove in which she knew there were live coals, and there was an explosion of the can, resulting in her being seriously burned. Held, that she was chargeable with negligence which precluded her recovery for the injury from the manufacturer of the oil on the ground that it was below the legal standard of safety.</p> <p>IT 1. Liabilities of manufacturers and venders of Injurious substances for injuries to persons other than immediate vendees, see note to Standard Oil Co. v. Murray, 57 C. C. A. 5.</p> <p>See Negligence, vol. 37, Cent. Dig. § 25.</p>

Action for Personal Injury. On motion by defendant for direction of a verdict. This is an action for damages for personal injuries. The plaintiff was a flagman stationed in the midst of the railroad tracks at the intersection of Fourteenth and Rowan streets, in this city. Three or more parallel tracks of the defendant’s road ran northwardly along Fourteenth street to the bridge across the Ohio river, a few hundred yards away.

<p>1. Insurance — Foreign Associations — State Laws — Application.</p> <p>Rev. St. Me. e. 49, § 79, provides that no foreign insurance company shall transact insurance business within the state without a license from the Insurance Commissioner; sections 80-84 provide for the issuance of such license; and section 92 declares that any person having a claim against any foreign insurance company may bring an appropriate suit thereon in the courts of the state, and that process may be served on the Insurance Commissioner or on any duly appointed, agent of the company within the state. Held, that section 92 applies only to foreign insurance companies which have complied, with the statutes and obtained a license to do business in the state.</p> <p>2. Federal Courts — Removal of Causes — Motion to Dismiss — Appearance.</p> <p>Where a foreign insurance association, after suit brought in the state court, took seasonable steps to have the same removed to the federal court, it was entitled after such removal to appear specially for the purpose of moving to dismiss on the ground that the court had not obtained jurisdiction of defendant’s person.</p> <p>If 2. See Appearance, vol. 3, Cent. Dig. 135; Removal ot Causes, vol. 42. Cent Dig. § 238.</p>

<p> In,Admiralty. </p>

<p>1. Shipping — Contract pob Charteb op Vessel — Parties Bound.</p> <p>The agent of a vessel, who had. previously made similar contracts with an individual acting both for a railroad company of which he was president and for a construction company, sent him a telegram, addressed to the railroad company, respecting the employment of the vessel; and an agreement was made for such employment by a telegram confirmed by. a letter bearing the letter head of the railroad company, and signed by such individual as president Held, that the contract bound the railroad company, whatever may have been the actual intention of the president; it being apparent that he must have known that such was the intention and understanding of the agent of the vessel.</p>

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

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

<p>1. Sinking op Carfloat at Float Bridge — Unseawortiiy Condition.</p> <p>Libelant left a carfloat, with nine loaded cars tbereon, at respondent railroad company’s float bridge at Communipaw, N. J. After respondent had removed the three cars on the starboard track, the float listed to port, and sank with the remaining ears. There was a depth of water of about two feet in the float, which was an unusual quantity; and, when the weight was removed from one side, the water flowed to the port side, and added to the weight there. Beld, that it was not respondent’s duty to inspect the float, and, as it was not notified of its condition, and removed the ears in the usual manner, it was not in fault, but the sinking must be attributed to the unseaworthy condition of the float.</p>

<p>1. Parties — Use Plaintiff — Bringing in by Amendment.</p> <p>Leave will not be granted to amend tbe writ, before the appearance ol the defendant or the service of the writ and the filing of pleadings in the cause, by inserting the name of a third person as plaintiff suing for the use of the persons originally named as plaintiffs, where such third person is not before the court nor within the jurisdiction, and cannot be served with notice of the application, even though it is proposed to reserve to him the right to object to the order, such an order being, in form at least, an adjudication of the right to so use his name.</p> <p>2. Amendments — Absent Parties — Protection by the Court.</p> <p>It is the duty of the court to exercise its discretion over amendments for the full protection of those who are absent from the record and beyond the jurisdiction of the court.</p>

<p>Action at Law to Recover Possession of a Mining Claim. Tried on the merits by the court without a jury. Findings and judgment for the defendants.</p>

<p>1. Equity — Pleading—Demurrer—Answer.</p> <p>It is within the sound discretion of a circuit court of the United States sitting in equity, when promotive of justice, to decline to decide a suit on demurrer to a bill and to overrule the demurrer and require an answer, reserving to the defendant the right to claim and take by answer whatever advantage might otherwise have been secured by the demurrer.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — Objections to Discharge — Amendment.</p> <p>A specification of objections to a bankrupt’s discharge is in the nature of a pleading setting up matters of fact, and is required to be verified, but, being a matter of form, a verification may be supplied by amendment.</p> <p>2. Same.</p> <p>An amendment of objections to the discharge of a bankrupt in matter of substance is only allowable (after the time within which objections are required to be filed) where the amendment is no more than an amplification, by the supplying of details, of charges which are substantially stated in the original.</p> <p>3. Same — Grounds—Fraudulent Transfer of Property.</p> <p>Specifications of objection to the discharge of a bankrupt, alleging that, within four months prior to the filing of his petition, in contemplation of bankruptcy, and with intent to defraud his' creditors, he purchased certain household goods specified, which he transferred to a woman to whom he expected to be, and was afterward, married, and which were not included in his schedules, are legally sufficient, under Bankr. Act, § 4b (Act Feb. 5, 1903, c. 487, 32 Stat. 797 [ü. S. Comp. St. Supp. 1903, p. 411]), as amended, which does not require an allegation in such case that the transfer was “knowingly and fraudulently” made, as is the case where the act charged is an offense punishable by imprisonment</p> <p>Tf 1. As to right to reverify, see In re Vastbinder, 126 Fed. 417.</p>

<p>1. Bankruptcy — act of Bankruptcy — Evidence.</p> <p>On an issue as to the commission of an act of bankruptcy by transferring notes with intent to give a preference, statements in the contract under which goods were furnished to the alleged bankrupt that he took the same for sale on commission, the notes to belong to the party to whom they were transferred, are not conclusive where the whole contract, taken together, shows that defendant became obligated to pay the invoice price' of the goods, and the notes were taken in his name and indorsed by him.</p> <p>2. Same — Involuntary Proceedings — Issues.</p> <p>Where the act of bankruptcy charged in an involuntary petition was the giving of á preference while insolvent, a denial in the answer that defendant committed such act of bankruptcy must be construed as a denial of insolvency, at least where it has been so accepted by the petitioners and evidence taken on the issue.</p> <p>3. Same — Proof of Insolvency.</p> <p>Evidence examined, and held insufficient to show insolvency at the time of the commission of the act of bankruptcy alleged.</p>

<p>In Bankruptcy. Heard on objections to claim of Mrs. Karen Fogh for balance of purchase price of a stock of merchandise sold in bulk.</p> <p>The bankrupts, at the time of purchasing the goods, executed a contract in the nature of a chattel mortgage to secure deferred payments, which contract did not conform to the chattel mortgage law of the state, and because of such informalities was held to be void. Chapter 109, p. 222, Laws Wash. 1901; Supp. Ballinger’s Ann. Codes & St. § 3102; Pierce’s Code, § 5346 — makes it the duty of the vendor at the time of disposing of a stock of merchandise in bulk to give to the vendee a sworn statement containing the names and addresses of all creditors to whom debts are due or to become due, with the amount of the vendor’s liability to each, and that statute was complied with. Part of the purchase money being still unpaid at the time of the adjudication, and the trustee having received part of said stock of merchandise, and having disposed of the same for cash, Mrs. Fogh, the vendor, filed a claim for said balance, and petitioned the court to allow the same as a preferred claim to the extent of the proceeds from the trustee’s sale of said stock. The trustee filed objections to the allowance of the preference claimed. Objections overruled, and claim allowed for the full amount as a general claim and as a preferred claim against the remainder of the proceeds of the particular goods which the bankrupts purchased from Mrs. Fogh, after paying therefrom a proportionate share of the costs of the bankruptcy proceedings.</p>

<p>1. Federal Courts — Judgments—Jurisdiction.</p> <p>Rev. St. § 905 [U. S. Comp. St. 1901, p'. 677], providing that the record of a judgment after due notice in one state shall be conclusive evidence in the courts of another state or of the United States of a matter adjudged, etc., prescribes a rule of evidence rather than one of jurisdiction; and hence, where an action is brought in the federal courts on a judgment of a state court, the federal court will look to the original cause of action to ascertain whether it is such a judgment as the federal court has jurisdiction to enforce.</p> <p>f 1. Conclusiveness and effect of judgments as 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 of Memphis v. City of Memphis, 49 C. C. A. 468.</p> <p>2. Same — Full Faith and Credit.</p> <p>Where plaintiff obtained a judgment for alimony in a state court, so much of the claim as had been reduced to final judgment was entitled to be given full faith and credit in an action to enforce the same in the federal courts.</p> <p>3. Same — Future Alimony.</p> <p>A claim for future alimony under a judgment of a state court is an action of a civil nature within the jurisdiction of the federal courts, other jurisdictional requisites being present</p>

<p>1. Customs Duties — Forfeiture—Importation Without Payment of Duty —Limitation to Prosecution.-</p> <p>In proceedings for the forfeiture of certain merchandise imported without the payment of duty it appeared by the averments in the pleadings that the claimant of the property had owned it for more than five years, without knowing or having reason to suspect that it had been imported, that he had never concealed it, and that neither he nor it had since been out of the United States, and that the importation of the merchandise was not known to the customs officers until about six years after the forfeiture accrued. Held, that the proceedings were barred, under Rev. St § 1047 [U. S. Comp. St 1901, p. 727], and Act June 22, 1874, c. 391, § 22, 18 Stat 190 [U. S. Comp. St 1901, p. 727], which prescribe, respectively: (1) That proceedings for forfeiture shall be brought within five years after the forfeiture accrued, provided the offender or the property shall, within the same period, be found within the United States; and (2) that proceedings for forfeiture accruing under the customs revenue laws shall be commenced within three years after the forfeiture accrued, provided the time of the absence from the United States of the person subject to such forfeiture, or of any absence or concealment of the property, shall not be reckoned within the period of limitation..</p> <p>2. Same — Innocent Buyee oe Smuggled Merchandise.</p> <p>The innocent buyer of smuggled merchandise is under no liability to enter it for the payment of duty. Such payment would not relieve a forfeiture already incurred, nor would failure to pay revive it when once barred.</p>

<p>1. Corporations-^Stockholdebs’ Action — Costs.</p> <p>Where an action was brought by stockholders for the benefit of the corporation and such other stockholders as might come in and make themselves parties, the plaintiffs were parties in their individual capacity, and were liable for costs and disbursements per capita, and not pro rata according to the number of shares each held in the corporation.</p>

<p>1. Equity — Taking Testimony before Examiner — Objections.</p> <p>In taking testimony before an examiner for use on a trial, where there is a doubt as to the relevancy or propriety of a question asked on cross-examination, the witness should be required to answer.</p>

<p>On Plea to the Jurisdiction.</p>

<p>In Equity. On demurrer to bill.</p> <p>The bill of complaint is as follows:</p> <p>To the Honorable the Judges of the Circuit Court of the United States in and for the Sixth Circuit and Western District of Kentucky:</p> <p>Robert Wiemer, of the city of New Albany, and a citizen of the state of Indiana, brings this, his bill, against the Louisville Water Company, a body corporate, organized and existing at and during all the times hereinafter mentioned under the laws of the state of Kentucky, having its chief office and place of business in the city of Louisville, and is a citizen of the state of Kentucky, and thereupon your orator complains and says he has for more than a year last past traded and done business under the name and style of the Louisville Sprinkling Company; that his said business is now, and has been for a year past continuously, that of sprinkling the streets and public ways of the city of Louisville in' front of the lots, residences, and houses of such persons as employ him to do so and pay him therefor the contract prieé for such service; that he has invested a large amount of money in the purchase, and that he now has on hand a large number of carts constructed and built at great expense for the purpose of sprinkling such streets, and which are valuable and useful only for such purpose, and cannot be made and are not valuable or useful for any other purpose; that at great expense he has equipped said carts with the harness and furniture necessary for their use in the business aforesaid, and that such harness, furniture, and equipments, as above mentioned, used in connection with said sprinkling carts, are valuable and useful in such service, but are practically of no value — of no service-in any other business; that in the acquisition and purchase of such sprinkling carts, furniture, harness, and equipments he has paid and laid out more than five thousand dollars, and that said sum so invested by him is valuable only in the event that he can make such property so acquired available to him in the further prosecution of said business, otherwise said investment will be an entire loss to him; that the defendant, the Louisville Water Company, is a body corporate, organized under and in pursuance of an act of the General Assembly of the commonwealth of Kentucky approved March 6, 1854, entitled “An act to incorporate the Louisville Water Company” (2 Acts 1853-54, p. 121, c. 507), and the various amendments thereto, and under and in pursuance of which act the defendant, the Louisville Water Company, long since acquired the necessary lands, and constructed thereon reservoirs, and furnished and equipped with all the requisite appliances and machinery a complete plant or waterworks, and connected the same with all parts of the city of Louisville by means of pipes, aqueducts, and mains laid and constructed under, in, and along the public ways of and in the city of Louisville, and through such pipes, mains, and aqueducts has continuously and does now supply and furnish water to the city of Louisville, to the inhabitants thereof, and to all persons doing business therein, in amounts sufficient to satisfy all needs and demands, public and private, therefor, and for which the said defendant is authorized to demand and charge a sum not exceeding the average price charged in the cities of Pittsburg, Cincinnati, and St. Louis for water furnished there by the water companies supplying such cities with water.</p> <p>Your orator says that the defendant, the Louisville Water Company, is invested with all of the powers and charged with all of the duties imposed upon it and required of it. by the charter act aforesaid, and that by the provisions of said charter act it is the duty of the defendant, the Louisville Water Company, to furnish and supply him with all the water necessary for the purpose of enabling him to carry on and conduct the business aforesaid; that it is the duty of the defendant, the Louisville Water Company, to furnish to all persons, natural and artificial, the water required by such persons sufficient to satisfy all lawful needs therefor; and that the defendant, the Louisville Water Company, has no rightful authority to prefer one consumer of water to another, but by said statute it is the duty of the defendant, the Louisville Water Company, to treat all consumers alike, and to furnish and supply water at uniform rates to all consumers. .</p> <p>Your orator says that he has been supplied by the defendant, the Louisville Water Company, with the necessary amount of water to enable him to carry on and conduct his business aforesaid in the city of Louisville, and throughout the year 1902 the defendant, the Louisville Water Company, did supply him with all the water required by him for the successful prosecution of his said business in the city of Louisville, and that he has always heretofore relied upon the defendant, the Louisville Water Company, for water to enable him to carry on and conduct his said business, and he say's that he will be unable, that he cannot carry on, conduct, and prosecute his said business, without a supply of water furnished to him by the defendant, the Louisville Water Company.</p> <p>Your orator says that the defendant hereto, the Louisville Water Company, with an intent of breaking up his said business, and with an intent of driving him out of the business of sprinkling streets and public ways of the city of Louisville, has wrongfully and without cause refused to furnish or supply him with water with which to carry on and conduct his said business of sprinkling streets in the city of Louisville.</p> <p>Your orator says that the defendant, the Louisville Water Company, now has on hand, and the capacity of keeping on hand, all the water, that will be needed or required by your orator to carry on and conduct the said business and to supply and furnish all and every demand by every other person on it for water; and your orator says that by reason of such action upon the part of the defendant, the Louisville Water Company, the said defendant, the Louisville Water Company, has determined and decided that your orator shall not hereafter carry on, conduct, or prosecute his business of sprinkling streets and public ways in the city of Louisville.</p> <p>Your orator says that he cannot obtain water for said purpose from any other source than the Louisville Water Company.</p> <p>Your orator says that he is now under contract with the. owners of lands, lots, and houses fronting on the following streets in the city of Louisville to sprinkle the streets and public ways in front thereof for the spring, summer, and fall of 1903 for the contract price agreed upon by and between your orator and such owners, to wit: Main street from Preston to Fourteenth streets, Market street from Jackson to Eighth streets, Jefferson street from First to Fifth streets, Fourth street from Main to first alley south of Broadway, Third street from river to Confederate Monument, Second street from river to Market, Second street from Oak to Burnett, First street from Main north to Water, First street from Oak to Burnett, Ormsby avenue from Floyd to Sixth street, Burnett avenue from First to Third, St. Catherine street from Second to Fifth, Washington street from Second to Preston, Preston street from Jefferson to Water, Seventh street from Main to Jefferson, Eighth street from first alley south of Main street, Broadway from Second to Eleventh, Eleventh stréet from Broadway two squares south, Ninth street one square north and south of Broadway, Tenth street one square north and south of Broadway. That he did on the 2d day of February, 1903, and at frequent intervals thereafter, petition and request the Louisville Water Company that it should furnish and supply him with water with which to sprinkle the streets aforesaid during the spring, summer, and fall of the year 1903, but that the said defendant, without any excuse or reason therefor, refused to furnish or supply your orator with water for the purposes aforesaid or for any purpose. Your orator says that he will sustain a loss and damage of two thousand five hundred dollars by the refusal and failure on the part of defendant to furnish and supply him with water with which to sprinkle the streets aforesaid in and during the spring, summer, and fall of the year 1903. Your orator says that unless he is at once, without delay and forthwith, furnished and supplied with water by the defendant, the Louisville Water Company, with which to carry out and comply with said contracts to sprinkle the streets aforesaid in the spring, summer, and fall of 1903, he will suffer and sustain a loss and damage which will be irreparable, and for which he can have no adequate relief or remedy at law.</p> <p>Your orator says that he is able and willing to, and has heretofore and does now offer to pay and to secure to the defendant, the Louisville Water Company, the full amount, price, and value for all water required or needed or demanded by your orator in the prosecution of said business in the spring, summer, and fall of 1903, and that he is able and willing to and will execute, and he now offers to execute, to the defendant, the Louisville Water Company, bond with good, sufficient, and ample surety, conditioned that your orator will not waste any of such waters, or suffer any waste thereof to be committed, and that he will faithfully, well, and truly perform every duty required of him by law or the rules of the defendant, the Louisville Water Company, in the use made by him of such water in and during the spring, summer, and fall of 1903; and your orator further says that he is able and willing to and will comply with and perform all of the duties and obligations incumbent upon him and growing out of his use of the water furnished to him by the Louisville Water Company for the purposes aforesaid, and that he will not use such water or any part thereof for any other purpose than sprinkling the before-named streets in the spring, summer, and fall of 1903.</p> <p>Your orator says that the defendant, the Louisville Water Company, is abundantly able to furnish and supply him with all the water required to sprinkle the streets aforesaid in and during the spring, summer, and fall of 1903, and that such supply by the defendant of water to him will not inconvenience it to any extent, or disable it from performing or discharging any duty or obligation it is under or will be under to any other person to furnish or supply water for any other purpose whatever.</p> <p>Your orator further states that the said defendant, for the purpose of ascertaining the quantity of water used by street sprinklers, and to prevent the waste of water, attached meters to the tanks on sprinkling carts, and during the spring, summer, and fall, the sprinkling season of 1902, the said defendant attached to your orator’s three tanks on his three sprinkling carts meters, which remained attached to the same until within the last ten days, when the said defendant removed said meters, and has not since restored them.</p> <p>Your orator has made arrangements to have and to put in use in the business aforesaid three or more sprinkling carts in addition to the three carts which he now has.</p> <p>Your orator has over six hundred citizens who have contracted to and with him to pay him for sprinkling the streets in front of their respective premises in and during the spring, summer, and fall, the sprinkling season of 1903, and he has no doubt but that he will be able to contract with many other citizens and residents to have the streets sprinkled in front of their respective premises.</p> <p>Your orator has established the business of sprinkling streets in the city of Louisville with the intention of following and continuing that business. He has established a valuable good will with those for whom he sprinkled the streets in the spring, summer, and fall, the sprinkling season of 1902, and that most of them have contracted and agreed with him to have him sprinkle the streets in front of their property in the spring, summer, and fall, the sprinkling season of the year 1903.</p> <p>Your orator says that the defendant has established post hydrants at convenient places for sprinkling streets, and to obtain water for other purposes, and that, notwithstanding the defendant well knew that your orator had established himself in the business of sprinkling streets, and had prosecuted such business in the spring, summer, and fall, the sprinkling season of the year 1902, and to the satisfaction of those employing him so to do, and of his customers in that business, and notwithstanding the defendant has an abundant supply of water for all useful and lawful purposes, including an ample supply for the purpose of watering and sprinkling the streets, and knew and now knows that your orator had and has contracts with the owners of premises fronting on the streets aforesaid to sprinkle the streets in front of their property, and that your orator had paid to the defendant in full all of its charges and demands for water furnished and supplied by it to this plaintiff for the purposes aforesaid in the spring, summer, and fall, the sprinkling season of 1902, yet the said defendant has refused and still refuses to furnish to your orator water for the purposes aforesaid; and your orator says that, unless the defendant be compelled to furnish him water at once for the purposes aforesaid, and in an amount sufficient to answer his demands therefor, that his good will will be destroyed, and his said business ruined.</p> <p>Your orator says' that by the terms of his contract with the owners of said lots, houses, and residences he came under obligation on the 1st of March, 1903, to commence the sprinkling of the streets aforesaid, and he says that the defendant hereto has, without any excuse therefor, and wrongfully, and for the sole purpose of compelling this plaintiff to give up and abandon his said business of sprinkling streets in the city of Louisville, refused to furnish or supply, and will continue to refuse to furnish and supply, your orator with water to sprinkle said streets, unless it be immediately enjoined and restrained from further refusal so to do.</p> <p>In consideration whereof, and inasmuch as your orator is without any remedy at and by the strict rule of the common law, and is only relievable in a court of equity, where matters of this kind are properly cognizable and reviewable, he brings this action in this court to the end, therefore, that your orator may have that relief which he can only obtain in a court of equity, and that the said defendant may answer the premises, but not upon oath and affirmation, the benefit of which is expressly waived by your orator. He now prays the court that the defendant be at once and forthwith enjoined and restrained from any further refusal to furnish and supply your orator with water with which to sprinkle the streets aforesaid, and each of them, in and during the spring, summer, and fall of the year 1903; that the defendant be compelled to restore said meters taken off of his tanks, and furnish such other meters as your orator’s business from time to time may require; and that said defendant afford him access to and the use of the post hydrants for the purpose of drawing water for the purposes aforesaid; and that the defendant be enjoined and restrained from removing said meters and put on your orator’s tanks, and forever enjoined and restrained from not affording your orator access to and the use of the post hydrants for the purpose of drawing and obtaining water for the purposes aforesaid; and that such orders of injunction and restraint be made on the final trial of this action final and perpetual; and that your orator have judgment against the defendant for all costs incurred herein; and that your orator may have such other and further relief in the premises as the nature of the circumstances of the case may require.</p> <p>May it further please your honor to grant your orator a writ of subpoena to be directed to the said Louisville Water Company, thereby commanding said defendant at a certain time and under a certain penalty therein to be limited personally to appear before this honorable court, and then and there full, true, direct, and perfect answer make to all and singular the premises, and to stand, perform, and abide by such order, direction, and decree as may be made against said defendant in the premises as shall seem meet and agreeable to equity; and as your orator will ever pray.</p>

<p>In Equity. On motion for preliminary injunction.</p>

<p>1. Water Companies — Powers—Regulations in Respect to Street Sprinkling.</p> <p>A water company chartered for the purpose of supplying a city and its inhabitants with water has power to make reasonable regulations in respect to furnishing water for sprinkling streets in the city; and regulations requiring persons engaged in the business to obtain a license from the company, and providing that more than one license would not be granted covering the same street or part of a street, which should be granted to the applicant having the largest list of petitioning owners of abutting property, are reasonable, and within the company’s powers.</p>

In the year 1858 the La Crosse & Milwaukee Railroad Company owned and operated a railway extending from Milwaukee, by way of Beaver Dam and Horicon, to Portage City, and thence to La Crosse, the railway from Milwaukee to Portage City being denominated the “Eastern Division,” and the road from Portage City to La Crosse being called the “Western Division.” The incumbrances upon the property on June 1, 1858, were as follows: Upon the Eastern Division: (1) A mortgage to Palmer,…

<p>1. Shipping — Maritime Lien.</p> <p>Where, at the time complainant delivered goods on the wharf of a transportation company under a bill of lading reciting that the goods were to be shipped on board defendant company’s vessel or vessels “now” lying at the port of S„ complainant had knowledge that defendant’s chartered vessel, the R. D., by which it was expected to ship the goods, was then either on the high seas or in a distant port, and the goods were never delivered to the master or officers of such vessel, the vessel was not subject to a maritime lien for defendant’s breach of the contract of affreightment.</p> <p>2. Same — Statutes—Construction.</p> <p>Ballinger’s Ann. Codes & St. § 5953, providing that all steamers, vessels, etc., are liable for the nonperformance or malperformance of any contract for the transportation of passengers or property between places within the state, or to or from places within the state, made by their respective owners, masters, agents, or consignees, does not create a lien on a vessel for breach of a contract of affreightment made by her charterer.</p> <p>3. Same — Appeal—Costs—Objection to Trial.</p> <p>In the absence of a showing in the record that an objection to the allowance of certain costs was brought to the attention of the trial court by appeal from the clerk’s taxation or otherwise, such objection will not be reviewed.</p> <p>2. Maritime liens created by state laws, see note to The Electron, 21 O. C. A. 21.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>In 1885 Conrad A. Leonhard secured from the -Provident Savings Life Assurance Society a policy of insurance upon his life for the benefit of his wife, Josephine Leonhard, in the sum of $5,000. In 1895, without her knowledge, he surrendered the policy, and secured from the society another one, for the same amount, but upon a different plan. In 1902 the second policy was exchanged for a third, with the full concurrence of the wife, who joined her husband in consummating the transaction. Shortly thereafter the insured died. The third policy was for the sum of $5,000, less $1,554.35, the amount of an exchange note given upon an adjustment of the premium rate,- and which, according to its terms, was to be deducted from any sum payable upon the policy. The second and third policies were also for the benefit of the wife. Sirs. Leonhard brought suit to recover the full amount of the first policy and certain alleged accretions, tendering the third for cancellation. The proofs showed that when Conrad A. Leonhard obtained the first policy, in 1885, his wife’s name was signed to the application by him as her representative. From the time the policy was issued to the time of its surrender to the society, the insured retained possession thereof, and paid all of the premiums. The application for the second policy recited that upon completion of the transaction the first policy should be deemed to be canceled and void, and it was signed in the same way as the application of 1885; the insured representing himself as the agent of his wife. Mrs. Leonhard was ignorant of this change of policies, and did not learn of it until after his death. The second policy remained in her husband’s possession and he paid the premiums until it was, in turn, canceled, in 1902, and the third one secured in its place. Mrs. Leon-hard took part in the transaction resulting in the issue of the third policy. She signed the application, which recited that it was in exchange for the prior policy, the number of which was given. She also signed a statement which contained a recital that the policy to be canceled and a receipt pertaining thereto were at that time lost or mislaid. She was fully and fairly advised of everything connected with the transaction, and participated in the discussion of the reasons for the exchange of policies, and the benefits to inure therefrom to her husband, as the insured, and to herself, as the beneficiary. In fact, she was advised of everything pertaining to the situation, excepting that it does not appear that she knew that the second policy was a substitute for the first She did know, however, that at no time did her husband have more than one policy of the Provident Society upon his life for her benefit. By its terms the first policy was subject to lapse and forfeiture upon default in the payment of any quarterly premium. The quarterly premiums were variable in amount, and the insured, who paid them, did not know of the exact amount thereof until he had received notice from the society, which it was its duty to give. By express provision the insured was designated as the proper person to receive notices of maturing premiums. The premiums were paid to the time of surrender in 1895, but none thereafter. The agents of the society acted in good faith, and were not aware of any lack of authority on the part of Leonhard to represent his wife in securing the first exchange and surrendering the original policy. The society denied liability upon the first policy, admitted liability upon the third, and paid into court the amount thereof, less the amount of the note. The Circuit Court upon final hearing dismissed the bill. Complainant appealed.</p>

<p>1 Equity — Relief against Fraud — Laches.</p> <p>A bill by one claiming under part of the locators of a mining claim, seeking relief against fraud by which the other locators obtained a patent to the entire claim, is demurrable on the ground of laches, having been filed 34 years after the beginning of the fraud, and 28 years after its consummation, where there was nothing to show that complainant’s grantors had actual possession of the ground after the making of the application for the patent, and it affirmatively appeared that from a short time thereafter the whole of the property was held adversely to them by defendants and those under whom they claim; that immediately after issuance of the patent the patentees and their successors in interest expressly repudiated and ignored any interest of complainant’s grantors, and claimed the whole property; that many of the parties whose acts are complained of have died; that for 30 years after application for the patent no work was done on the property, and that thereafter work was done for 3 years at a loss, but that at the commencement of the suit the property was worth 3500,000.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>The plaintiff in error, a corporation organized under the laws of Wyoming, brought an action for damages against the defendant in error, and in its complaint alleged that prior to November 8, 1894, the defendant in error was an incorporator of a corporation known as the San Fernando Mining Company; that on that date said corporation sold to the San Fernando Copper Mining & Smelting Company, a corporation of the state of Colorado, hereinafter designated as the “Smelting Company,” all of its interests in the San Fernando copper mines, situate in Lower California, republic of Mexico, and that on said date the defendant in error became also an incorporator of said last-named company; that the objects and purposes of said smelting company were to acquire by purchase all the property of the San Fernando mine, as well as to carry on a general mining business in Lower California, and to acquire mining properties therein, and that in pursuance thereof the defendant in error was employed to act as its manager in Lower California; that on June 18, 1895, the smelting company appointed the defendant in error its attorney in fact to procure patents for mines and mining claims in Lower California, either in his own name or the name of the company; that thereupon said defendant in error did, on May 27, 1895, acquire an undivided one-half interest in the “San Fernando,” consisting Of five claims theretofore owned by David Goldbaum, the other half thereof being owned by one Dr. O’Cleary; that such title was acquired by a deed to the defendant in error, and that the consideration therefor was $3,000, paid by the said corporation to the said Goldbaum through the defendant in error; that at the same time and subsequently the defendant in error acquired for the use and benefit of the said corporation divers other mining claims in Lower California, known as the “San Fernando No. 1,” the “San Fernando No. 2,” the “Calumet Rosario,” the “Heela Rosario,” and the “Iron Mine”; that on April 26, 1897, the defendant in error acquired by patent from the Mexican government the title to the Calumet Rosario and the Heela Rosario in his own name, and that in the year 1897 he acquired title to San Fernando No. 2 — all of which titles were acquired in the name of the defendant in error for the use and benefit, and as the general agent, manager, and trustee, of the corporation; that all the money required for the patenting, surveying, locating, and acquiring of said properties was advanced by the corporation, and that the corporation expended therein more than $15,000; that the defendant in error, in fraud of the rights of the corporation, on September 5, 1898, sold and transferred the Calumet Rosario and the Heela Rosario to Eulogio Romero, and caused the title of the iron mine of San Fernando to be conveyed to said Romero; that on January 24, 1899, the defendant in error conveyed the San Fernando No. 1, and thereafter conveyed the San Fernando No. 2, to E. Romero; that the said defendant in error, in furtherance of the said fraud, and in order to cheat and defraud the said corporation of the title to the said mining properties, induced the said E. Romero to convey the same to Thomas E. Brophy on or about April 28, 1899, and the said defendant, in consideration of $1, conveyed to Thomas E. Brophy the one-half of the San Fernando mine so obtained from David Goldbaum; that demand has been made upon the defendant in error to execute his said trust by the execution and delivery of a deed for said mines to the said corporation, but the said defendant in error has neglected and refused to execute the same; that all of said acts of the defendant in error were done without the knowledge or consent of the said corporation, and in fraud of its rights; that on March 15, 1901 (which was 10 days before the commencement of the action), for value received, the said smelting company sold and conveyed unto the plaintiff in error all its real and personal estate, with all its right and property of whatsoever nature or description, together with all of its right to recover money or personal property, and all of its right of action arising out of the violation of any right of property or of any obligation. The complaint proceeds to aver that the plaintiff in error is obliged to institute proceedings in Lower California, Mexico, for the clearing of the title to its property, and has been compelled to institute proceedings to recover the possession thereof, and has been compelled to expend a large sum of money for attorney’s fees and court expenses, to wit, the sum of $10,000, in pursuit and to recover possession and control of the said properties, and that by reason of the fraudulent acts and conduct of the said defendant in error as aforesaid the plaintiff in error has been damaged in the sum of $20,000. The defendant in error, answering, denied the allegations of the complaint, and set up a counterclaim thereto, and further pleaded in defense thereof that at all of the times mentioned in the complaint the laws of the republic of Mexico required that a corporation organized without that republic, as said smelting company was organized, before it could take or hold any interest in real or personal property, beneficial or otherwise, or any interest or any trust in real or personal property, or transact any other business in said republic of Mexico, must procure copies of its articles of incorporation, certificate of incorporation, and by-laws of said corporation, vised by the authorities of the said government where it was incorporated, and viséd by the Mexican consul or other accredited agent of said republic resident in the United States, and by the secretary of foreign relations of the republic of Mexico, and file and record the same in the territory of the republic of Mexico, and pay a tax to the republic for viséing said papers and recording the same and for permission to do business in said republic, and that until such requirements of the law shall have been complied with such corporations cannot take or hold any interest in any real or personal property, beneficial or otherwise, or any interest in any property, or prosecute any business in the republic of Mexico; that said smelting company never did comply with any of the said laws, never acquired any right to hold property in said territory, but intended at all times to evade said laws of said republic. The case was by written stipulation tried before the court without a jury. The court heard testimony concerning all the matters in issue, and made special findings of fact thereon. Among other findings, it was found specially that the plaintiff in error was never compelled to institute proceedings in Lower California for the clearing of the titles to said property, and has not, by reason of the fraud or fraudulent acts or conduct of the defendant in error, been compelled to institute proceedings for the recovery of the possession thereof; that the plaintiff in error has not been compelled to expend a large sum of money for attorney’s fees or court expenses, or any sum, in pursuit or to recover possession or control of the said property, and that the plaintiff in error has not, by reason of the fraudulent acts or conduct of the defendant in error, as alleged in the complaint, been damaged in the sum of $20,000, or any other sum. Judgment upon the findings of fact and conclusions of law was rendered for the defendant in error.</p>

The intestate of the plaintiff below was accidentally killed while engaged in the discharge of his duties as a servant of the American Bridge Company, and this suit is brought under the statute of Ohio to recover damages for a wrongful killing. The suit was instituted in a common pleas court of the state of Ohio.

<p>1. Sale — Recovery of Property prom Receiver — Conditional Delivery.</p> <p>Evidence considered, and held not to entitle the seller of a machine to a corporation, which later became bankrupt without having settled therefor, to recover the machine from the receiver in bankruptcy on the ground that the sale was conditional, and the machine was not accepted by the bankrupt, but to show that it was delivered under a verbal contract for its unconditional sale, and that objections thereto by the president of the bankrupt were made for the sole purpose of obtaining delay in settlement, the company being at the time in financial difficulty.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Writ of error to review a judgment, dismissing the complaint on the merits, entered pursuant to an order to that effect made at the trial. The United States, the plaintiff in error, was plaintiff below, and the New York Central Coal Company and the surety, the Union Surety & Guaranty Company, were defendants. The action was to recover damages for breach of contract.</p>

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

Tbe libel was filed by Eugene S. Belden, in bebalf of tbe owners, insurers, master and crew of tbe steam lighter Clifford. Tbe libelants appeal from a final decree of tbe District Court for tbe Southern District of New York, holding the propeller Newburgh liable for half tbe damages received by the Clifford by reason of a collision with tbe Newburgh in the Hudson River, off 104th street, at about half past 9 on tbe morning of December 29, 1901, during a dense fog.

<p>1. Appeal — Findings—Opinion of Trial Court — Assignments of Error.</p> <p>The opinion of the trial court, as distinguished, from its findings and decision, is not a proper subject for an assignment of errors.</p> <p>2. Same — Findings of Fact — Review.</p> <p>Where an action at law is tried by the court without a jury, the appellate court is precluded from weighing the evidence for the purpose of determining whether or not the court’s findings were justified thereby, unless there was no evidence whatever to support the findings.</p> <p>3. Same — Conversion.</p> <p>Where, in an action for conversion of certain stock, defendant’s answer expressly denied plaintiff’s title, and alleged defendant’s possession of the stock and dividends, and its refusal to surrender them to plaintiff, and the court found that the defendant had “converted” such stock and dividends to its own use, the finding was a sufficient finding that defendant was in possession of the stock and dividends, and that it denied and acted in defiance of plaintiff’s title.</p>

A petition of creditors, an order to show cause, a response by the bankrupt, and a hearing before the referee in bankruptcy upon the issue joined, resulted in a finding by the referee that Schweer, the bankrupt, had in his possession or under his control assets belonging to his estate in bankruptcy of the amount or value of $17,895.61, and an order that he surrender the same to the trustee.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The decision in question ([C. C.] 124 Fed. 1023) affirmed an unpublished decision of the Board of General Appraisers, which followed Nicholas v. U. S. (C. C.) 122 Fed. 892, and reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Julius Wile Bro. & Co.</p>

The decision of the Circuit Court (124 Fed. 977) affirmed an unpublished decision of the Board of General Appraisers, which followed Nicholas v. U. S. (C. C.) 122 Fed. 892, and reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Luyties Bros.

This cause comes here upon writ of error to review a judgment of the Circuit Court in favor of defendant in error, who was defendant below, sustaining a demurrer to the complaint. The action was to recover from the collector of the'port of New York certain duties collected upon sugars imported from the island of Porto Rico.

<p>1. Towage — Tug Moving Lighter in Absence of Master — Liability for Injury.</p> <p>A tug which, contrary to custom, took a loaded lighter from a safe anchorage in the absence of the master, and towed it to the wharf of the cargo owner, assumed the duty of seeing that it was left in the care of some competent person, and did not relieve herself from liability for its injury by delegating such duty to the wharf owner.</p> <p>2. Wharves — Unsafe Condition of Bottom — Liability of Owner.</p> <p>The owner of a wharf used for its own purposes, which negligently allowed the bottom around it to become filled with obstructions, so that a. vessel could not safely lié there unless special care was taken to prevent it from grounding at low tide, and which had a loaded lighter brought there and moored on Sunday, during the temporary absence of the master, assumed the duty of seeing that it was so placed as to be safe, and is liable for its injury resulting from the failure to breast it out into sufficiently deep water.</p> <p>3. Towage — Injury to Tow — Contributory Fault.</p> <p>The owner of a lighter which was moved by a tug on Sunday, contrary to the usual custom, at the instance of the owner of the cargo, was not chargeable with fault because the master, who did not know it was to be taken that day, was temporarily absent, so as to preclude him from collecting damages for its injury through the fault of the tug and the cargo owner.</p>

<p>1. Collision — Steamer and Tug with Tow Crossing — Failure to Stop.</p> <p>A tug proceeding up East river with a car float on each side held in fault for a collision with a crossing steamer approaching from her starboard side, for failing to see or signal the steamer until they were within 1,000 feet of each other, and for then continuing on her course until after her second signal of two whistles was not answered, although there was an ebb tide, and she could have stopped without danger to herself or tows.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>On writ of error to the United States Circuit Court for the Southern District of New York, to review a judgment in favor of the defendant in error, who was defendant below, entered upon the finding of the Circuit Judge, a jury trial having been waived.</p> <p>The action was brought to recover $21,492.75 and interest, collected by the defendant, as collector of internal revenue for the Second District of New York, as a tax upon telephone messages under the war revenue act of June 13, 1898, c. 448 (30 Stat. 448, 460). Section 25 of said act contains the following:</p> <p>“Telephone Messages: It shall be the duty of every person, firm or corporation owning or operating any telephone line or lines to make within the first fifteen days of each month a sworn statement to the collector of internal revenue in each of their respective districts, stating the number of messages or conversations transmitted over their respective lines during the preceding month for which a charge of 15 cents or more was imposed and for each of such messages or conversations the said person, firm or corporation shall pay a tax of one cent; provided, that only one payment of said tax shall be required, notwithstanding the line of one or more persons, firms or corporations shall be used for the transmission of each of such messages or conversations.”</p> <p>The plaintiff is a corporation, engaged in the telephone business in the city of New York and the amount stated above was collected by the defendant, under the said section, as a tax upon messages transmitted by the plaintiff between July 13, 1898, and May 1, 1899. During this period there were in existence in the city of New York contracts for limited telephone service made by the plaintiff with its subscribers by which it agreed to transmit a given number of messages for a stated sum which averaged 15 cents per message. For instance, when the number of messages was limited to 600 the price paid per annum was $90, and 10 cents for each message in excess of 600.</p> <p>These contracts were headed</p> <p>“Contract for Telephone Service.</p> <p>“(Direct Line — Message Rate).”</p> <p>- The first paragraph is as follows, the words “six hundred,” “ninety” and “ten” having been inserted in order that its purport may be better understood:</p> <p>“The subscriber requests the New York Telephone Company (herein styled the ‘Company’) to establish at- Borough of Manhattan, in the City of New York, a telephone station and furnish service for one year from the first day of the month following the connection of the station, and thereafter until this contract is terminated as herein provided; and agrees to pay for the right to send in said year six hundred local messages, ninety dollars, payable quarterly in advance; for additional local messages ten cents each, payable as herein provided; for the fraction (if any) of the month in which the station is connected proportionately at said annual rate; and for foreign messages such tolls as are now or may be established, payable monthly.”</p> <p>Under these contracts if 600 messages were sent it would be at the rate of 15 cents per message; if less than 600 were sent it would necessarily be at the rate of more than 15 cents per message. In no instance was the tax collected where the rate charged was less than 15 cents.</p>

' This is an appeal from a decree of the Circuit Court for the Northern District of New York holding letters patent No. 492,913, for an electric lamp lighter, invalid, and dismissing the bill, with costs. The opinion below is reported in 124 Fed. 553. The patent was considered by the Circuit Court of Appeals for the Seventh Circuit in Eldred v. Kessler, 106 Fed. 509, 45 C. C. A. 454, where the specification and claims are set out in hsee verba.

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>In suits for infringement the rule is that the patent must be supported' by public acquiescence or prior adjudication to entitle complainant to a preliminary injunction, unless there are some peculiar conditions which call for the exercise of the court’s discretion in granting the injunction. It is also incumbent on complainant to show that the threatened injury will be irreparable.</p> <p>2. Same.</p> <p>Where it is not shown that a complainant has suffered or is threatened' with any serious injury from the alleged infringement of his patent by defendant, and defendant denies infringement since the commencement of the suit, and states that he abandoned the manufacture and sale of the alleged infringing article, and does not intend to and will not further infringe, such irreparable injury does not appear as to require the granting of a preliminary injunction. The effect of such injunction in deterring others from infringement cannot be considered on such an application.</p> <p>S. Same — Pleading—Plea.</p> <p>In a suit for infringement, a plea setting out that defendant abandoned' the manufacture and sale of the infringing article before the commencement of the suit will be stricken out where such statement is contradicted by evidence already in the record.</p> <p>1T1. See Patents, vol. 38, Cent. Dig. §§ 476, 477, 480, 481.</p> <p>IF 3. Pleading in infringement suits, see note to Caldwell v. Powell, 19 C.. C. A. 595.</p>

<p>1. Criminal Daw — Sentence.</p> <p>This case involves the legality of a sentence by a police magistrate for a petty municipal offense to a term at hard labor on a local chain gang.</p> <p>2. Same — Infamous Crime.</p> <p>Whether or not a crime is infamous must depend upon the fact whether, by the statute defining it, an infamous punishment can be awarded. Mr. Justice Gray in Ex parte Wilson, 5 Sup. Ct 935, 114 U. S. 417-447, 29 L. Ed. 89.</p> <p>3. Same.</p> <p>An order of a police magistrate directing that a person shall serve a term in such a chain gang as that portrayed in the evidence is a sentence to infamous punishment.</p> <p>4. Same.</p> <p>A city charter which authorizes its police judge to impose fines for the violation of any law or ordinance passed in accordance with its charter to an amount not to exceed $500; to imprison offenders in the city barracks for a space not more than 60 days, or at labor on the public works in the county chain gang for not more than 6 months; where it appears also that the persons convicted of minor municipal offenses are made to wear the typical striped clothing of the penitentiary convict; where iron manacles, which can only be removed by the use of the cold chisel, are riveted upon their legs; where the irons on each leg are connected by chains; where they work and sleep in the same clothing; where they wake, toil, rest, eat, and sleep in manacles and chains; where their progress to and from their work is public, and where they work on the public roads and before the public eye; where at all times they are watched with convict guards armed with deadly weapons, who will kill them if they attempt to escape; where they are liable to public and severe whipping by a whipping boss with a heavy leathern strap about two and a half or three feet long, with solid hand-grasp, and with broad, heavy, and flexible lash; and where they are imprisoned, work, and eat with felons from the State Penitentiary, and are only separated from them at night by a wooden lattice work — creates infamous punishment.</p> <p>5. Constitutional Daw — Due Process oe Daw.</p> <p>Due process of law in a criminal case requires a law describing the offense, the offense must be described in the accusation, the accused must be given his day in court, his trial must proceed according to established procedure, consisting of rules of pleading and practice, and it is imperative that the court be of competent jurisdiction.</p> <p>6. Same — Jury Trial.</p> <p>While summary proceedings before municipal courts for the punishment of minor offenses against ordinances or by-laws can conclude with sentence of pecuniary fine, and, in default, with moderate imprisonment, or with both fine and imprisonment, under the American system the power to sentence for such offenses to hard labor on the public chain gang does not and cannot exist in the jurisdiction and procedure of police courts, where trial by jury is not a right of the accused.</p> <p>7. Habeas Corpus — Federal Jurisdiction.</p> <p>While the courts and judges of the United States having discretion to grant the writ of habeas corpus should exercise that discretion in the light of the relations existing under our system of government between the judicial tribunals of the Union and the state, where the necessity of the writ is urgent, and where the proceeding against the prisoner is repugnant to the Constitution, the writ should be granted.</p> <p>T 7. Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.</p> <p>8. Same — Void Sentence.</p> <p>Where a sentence is of that character that it is void for want of jurisdiction, habeas corpus will lie, and may be issued by any court or judge invested with jurisdiction to grant it.</p> <p>9. Same — Evidence.</p> <p>Where a citizen of the United States has been sentenced by a single judge of a police court for a minor municipal offense to seven months on the chain gang described by the evidence in this case, and where, by state law, should he sue out a writ of certiorari, he could not he discharged unless he was able to pay costs or give bond, and where he is not able to do either, and his full punishment must have been suffered before, in the ordinary course, his cause could, have been heard and determined by the state courts, and where it is alleged and proven that he is deprived of his liberty in violation of the Constitution of the United States, it malíes a case for the urgent and immediate relief of habeas corpus at the hands of a United States court.</p> <p>(Syllabus by the Court.)</p>

In Equity. On petition of John B. Sherwood for allowance of attorney’s fees. This case is now before the court upon the petition filed herein on the 19th day of November, 1901, by John B. Sherwood, one of the counsel for the complainants in the original cause, asking the court to settle the amount of his-compensation for professional services rendered in the cause.

In Bankruptcy. On objection of the trustee in bankruptcy to the allowance of any part of the claim of the John L. Roper Lumber Company as a secured claim.

<p>1, Bankruptcy — Involuntary Proceedings — Amendment of Petition.</p> <p>A petition in involuntary bankruptcy, which does not show on its face that the claims of the petitioners amount in the aggregate to $500 or over, does not give the court jurisdiction, and it has no power to allow an amendment joining other creditors having cláims sufficient to make up the requisite amount.</p> <p>1T1. See Bankruptcy, vol. 6, Cent. Dig. § 128.</p>

<p>1. Hospitals — Detention op Patients — Habeas Corpus — Return.</p> <p>Where, on the arrival of a British ship, petitioner, a seaman, was admitted to a hospital through the intervention of the British consul, to be treated for an injury received on the vessel, allegations in a return to a writ of habeas corpus that he was not fully cured at the time he applied for his discharge from the hospital; that, if discharged, he would be likely to become'a public charge, and that the master of the vessel had directed that he be detained until he might be returned to the port from which he came, were insufficient to justify the hospital authorities in restraining petitioner of his liberty.</p> <p>2. Same — Aliens. .</p> <p>Where the immigration authorities were not parties to a writ of habeas corpus by an alien seaman to procure his discharge from a hospital to which he had been admitted for treatment for an injury sustained on board his vessel, the fact that he had never been admitted to the United States by such immigration authorities, and that under the immigration laws of the United States it was the duty of the master of the vessel to return him to the port from which he came, was no ground for refusing to discharge petitioner from detention at such hospital.</p>

<p>1. Bankruptcy — Provable Debts — Time of Accrual of Claim.</p> <p>A claim against a bankrupt for work done under a contract after the filing of the petition cannot be proved as a debt against the estate, although the contract was entered into prior to the filing of the petition, but was at that time wholly executory.</p>

<p>1. Bankruptcy — Examination of Third Persons — Rights of Creditor.</p> <p>■ Bankr. Act July 1, 1898, c. 541, § 21a, 30 Stat 552 [U. S. Coinp. St. 1901, p. 3430], while it authorizes the court on a creditor’s application to summon a third person for examination regarding the affairs or estate of a bankrupt, does not give a creditor an unqualified right to demand the issuance of such a summons, the awarding of which is in all cases discretionary.</p>

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

<p>1. Bankruptcy — Order to Turn Over Property — Credibility oe Testimony.</p> <p>An order of a referee requiring a bankrupt to turn over to his trustee a part óf a sum of money which he was shown to have had prior to his bankruptcy will not be disturbed, where the bankrupt’s testimony in explanation of his disposition of the money was wholly uncorroborated, although, if true, it apparently could have been, without difficulty.</p>

<p>1. Master and Servant — Injuries to Servant — Negligence.</p> <p>Plaintiff, who was employed to operate a winding machine in a woolen factory, had been instructed in the operation of the machine for 3% days, after which she did the work satisfactorily for about 3 weeks before the accident happened. In the course of the winding the strands would sometimes be broken, when it was necessary either to stop the machine and join the ends, or to throw the broken strand over the others, which would accomplish the same result. Plaintiff had been instructed how to throw the strands over, but at the time she was injured she attempted to push the broken strand into place, and, in doing so, placed her hand too near the roller, when it was caught and injured. Held, that the accident was the result of plaintiff’s contributory negligence, precluding a recovery.</p>

<p>Application for the Production of Books and Papers under Section 724, Rev. St. [U. S. Comp. St 1901, p. 583].</p>

<p>1. Copyright — Infringement—Preliminary Injunction.</p> <p>Motion for a preliminary injunction to restrain the performance of a play as an infringement of copyright denied on the ground of insufficiency of evidence to show infringement.</p>

<p>1. Copyright — Suit foe Infringement — Pleading.</p> <p>There is such an analogy between actions under the patent laws and a<? tions under copyright laws that like rules of practice should be applied in both classes of cases.</p> <p>2. Same — Defenses.</p> <p>That a complainant is a member of an illegal combination, in violation of the anti-trust laws, state or federal, is no defense to a suit for infringement of a copyright</p>

<p>1. Pbelihinaby Injunction — Time of Application fob.</p> <p>Unless under special circumstances, a motion for preliminary Injunction will not be entertained when complainant has completed testimony for final hearing, leaving defendant to oppose by affidavits only.</p>

<p>1. National Banks — Actions by Receiver — Jurisdiction.</p> <p>Act Cong. March 3, 1875, c. 137, 18 Stat. 470, provides that the United States Circuit Courts shall have jurisdiction of suits in equity, where the matter in dispute exceeds $500, arising under the Constitution or laws of the United States. By Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 514], the limit of jurisdiction was raised to $2,000; but the act provided that such section should not be held to affect the jurisdiction of the courts of the United States in cases commenced by direction of any officer thereof, or cases for winding up the affairs of any national bank. Held, that the word “section,” as used in the act of 1887, should be construed to refer to the entire act, and therefore such act did not deprive United States Circuit Courts of jurisdiction of a suit in equity brought by a receiver of a national bank, where the amount involved exceeded $500, of which the court had jurisdiction under the former act</p> <p>1. Actions by and against receivers and agents of national banks, see note to McCartney v. Earle, 53 C. C. A. 398.</p>

Application to Review a Decision of the Board of General Appraisers. The decision in question was that in the case of In re Baer, G. A. 4,941, T. D. 23,112, which affirmed the_assessment of duty by the collector of customs at the port of New York on merchandise imported by Baer Bros. Note Meier v. United States (C. C.) 128 Fed. 472. The opinion of the Board of General Appraisers reads as follows: FISCHER, General Appraiser.

<p>1. Customs Duties — Classification—Printed Paper Bags — Manufactures of Paper — Printed Matter.</p> <p>Paper bags with incidental printing thereon are not “printed matter,” within the meaning of paragraph 403, Tariff Act July 24, 1897, c. 11, § 1, Schedule M, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], but are dutiable as “manufactures of paper,” under paragraph 407 of said act, § 1, Schedule M, 30 Stat 189 [U. S. Comp. St. 1901, p. 1673].</p>

<p>1. Customs Duties — Classification—Books in Foreign Languages — Unbound Portfolios.</p> <p>Held, that the provision in paragraph 502, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat 196 [U. S. Comp. St 1901, p. 1681], for “books and pamphlets printed exclusively in languages other than English,” includes certain portfolios of two kinds, made up of loose sheets not intended to be bound together in book form, and containing, respectively, 19 and 24 sheets of pictures and prints, and accompanied, respectively, with 4 and 12 loose pages printed in foreign languages; each portfolio having a loose outside covering, bearing the title of the work.</p>

<p>1. Foreign Corporations — Service oe Summons.</p> <p>A court does not acquire jurisdiction of a foreign corporation by service of summons on its officers or directors in a state where it is not doing business and has no office.</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>See Corporations, vol. 12, Cent. Dig. § 2613.</p>

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

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

<p>1. Collision — Steamboat and Feeeyboat — Steamboat too Close Inshobe.</p> <p>A steamboat proceeding through Hell Gate from Hart’s Island to New York held in fault for a collision with a ferryboat which had just left her slip at Astoria on her trip to Ninety-Second street, New York, on the ground that she was proceeding too close to the shore, and for want of a lookout; also for not keeping her course as required under the starboard-hand rule.</p> <p>2. Same — Right of Feeeyboat to Space fob Maneuveb in Leaving Slip.</p> <p>A ferryboat is entitled to the space requisite for her proper maneuver in leaving as well as entering her slip.</p>

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

<p>1. Towage — Liability of Tug fob Sinking of Tow — Negligent Making up of Tow.</p> <p>A tug crossing from Jersey City to East river, during a strong breeze from tbe southeast, with a tow consisting of six scows and canal boats on hawsers, arranged in two tiers, held liable for the loss of a canal boat laden with coal, which was in the center of the front tier, on the ground of negligence, in view of the condition of the sea, in so making up the tow as to subject the canal boat to being filled by water thrown on her open decks by a light scow on her starboard and rear, which also struck and injured her; and also for not landing the canal boat,, on request of her master, when the danger became apparent.</p>

<p>1. Application of Payments — Rights of Surety — Indemnity Insurance eob Speoieic Term.</p> <p>Defendant, a surety company, executed a bond to plaintiff bank by which it undertook, for the term of one year, to indemnify plaintiff against loss sustained by the dishonesty of employés. Action was brought thereon to recover for loss alleged to have occurred during the term through the action of a bookkeeper in falsifying the account of a depositor so as to increase his apparent credit balance, by which he was enabled to and did overdraw his account to a large amount. Such false entries and overdrafts continued through four years, but defendant’s bond covered only about three months of the last part of the bookkeeper’s employment, there having been bonds with different sureties covering a portion at least of the previous time. The depositor’s account was the ordinary running account, subject to check, and continuous during all the time, and no application of deposits to any particular item of debit was made by either party, nor by implication, there having at no time been an overdraft as shown by the books. The false entries and overdrafts continued for a part of the time after defendant’s bond went into effect, but subsequent deposits made prior to the time the bookkeeper’s employment terminated exceeded the checks paid during the same time in an amount greater than such overdrafts. Held, that the ordinary rule in such cases between debtor and creditor, that payments should be appropriated to the oldest item of indebtedness, could not be applied as against a surety whose obligation covered a distinct portion of the time during which the account was running, but that as between plaintiff and defendant all deposits made during the currency of the bond would be applied by the court to the debit items made during the same time, and, it appearing that they exceeded the sums drawn out, there was no loss to the bank during the term for which defendant was liable.</p> <p>2. Same — Distinct Bonds eob Dieeebent Teems.</p> <p>When there are different bonds given by a bank official, covering different periods of time, with different sureties, an unappropriated payment made by the common principal is not to be always applied by the court to the oldest obligation. Regard must be had to the responsibility of the different sureties, as limited by the period for which they respectively contract, as well as to the injustice that would ensue if collections received under one obligation are applied to the discharge of a liability under a preceding or succeeding term, with distinct sureties.</p>

<p>1. Municipal Corporations — Issue of Invalid Bonds — Liability fob Consideration Received.</p> <p>A city which issued and sold bonds for a lawful purpose,.and which were within its charter power, but were held invalid because such power was irregularly exercised, is bound, in equity, to return the consideration received.</p> <p>2. Same — Right of Recovery — Transfer of bonds by Purchaser.</p> <p>Where a city issued bonds which were subsequently adjudged invalid for irregularity in the manner of issuance, and sold the same to a firm which paid a part of the purchase price and resold them to others, the right to recover from the city the consideration received by it passed with the bonds to the holders, to the exclusion of a general receiver appointed for the original purchaser.</p> <p>3. Equity Jurisdiction — Grounds.</p> <p>A city issued and sold bonds which proved invalid, receiving part payment of the purchase price. The purchaser resold some of the bonds, and pledged others, after which a receiver was appointed for its property. In a suit by the city against the purchasing firm to recover the bonds, in which it tendered the amount received therefor, the receiver recovered a judgment for such amount, and instituted a new action in the federal court of the district in which the city was situated to enforce such judgment. Held, that a court of equity had jurisdiction of a suit by holders of the bonds against the city and receiver to enforce, in behalf of themselves and other holders, their equitable right to the amount due from the city, on either of the following grounds: First, that it sought to charge the receiver as a trustee holding the judgment for the benefit of the bondholders; second, that it sought to follow a fund which had been tendered by the city, and in which complainants claimed an equitable interest; third, because it appeared from the pleadings that there might be conflicting interests between the holders and pledgees of the bonds, which could only be adequately adjusted by a court of equity.</p> <p>IT 1. See Municipal Corporations, vol. 30, Cent. Dig. § 1992.</p>

<p>1. Marine Insurance — Misrepresentations—Materiality.</p> <p>Where a misrepresentation as to the time of sailing of a vessel on which insurance was requested was made in reply to a specific question asked by the insurer in the application, it will be conclusively presumed to have been material to the risk.</p> <p>2. Same — Date op Representation — Execution op Contract — Relation.</p> <p>Insured requested a broker to inquire the rate of insurance on a barque, loaded with logwood, at and from Black River, Jamaica, to New York, in pursuance of which, on November 4, 1901, the broker made answer to a written question, asked by insurer, that the vessel had not sailed. Insurer’s agent named the rate of premium, and indorsed it on the application, which was placed on file, and on December 12th insured, after being advised that the barque had cleared on December 3d, immediately instructed the broker to procure insurance, but did not inform him that the vessel had already sailed, whereupon the broker requested the underwriter to bind the insurance, which he did by erasing the original date from the application, and dating it December 12, 1901, the effect of which was to create a present contract of insurance subject to a printed policy. The vessel sailed on December 4th, and on the 7th was wrecked. Held, that the representation that the vessel had not sailed should be regarded as continuing and effective on the date the insurance was effected, insurer not having been advised to the contrary, and, being false as of that date, avoided the policy.</p> <p>V1. See Insurance, vol. 28, Cent. Dig. §§ 575%, 1651.</p>

<p>1. Evidence — Res Gesms — Statement oe Person Injured.</p> <p>A declaration by a man who bad fallen into an excavation for a sewer in the night, and received a fatal injury, that there was no light there, made some 10 minutes after the fall, during a conversation with a person above, and in answer to a direct question, goes beyond a statement respecting the immediate cause of the injury, which was the fall, and is inadmissible as a part of the res gestee.</p> <p>Y1. See Evidence, vol. 20, Cent. Dig. §§ 373, 375.</p>

The original bill was by Shinkle, a citizen of Kentucky, against Vickery, a citizen of Missouri, setting forth that on the 16th day of July, 1894, Vickery was the owner of four hundred and seventy shares of capital stock of the Hemingray Glass Company, a Kentucky corporation; that on the day mentioned, for a valuable consideration, Vickery sold such shares to Gibson, but without delivering a certificate thereof — Vickery continuing thereafter to hold the legal title for the…

<p>In Error to the District Court of the United States for the Southern District of Ohio.</p> <p>The plaintiff in error and one Harry J. Hoover were indicted, under section 5440 of the Revised Statutes of the ’United States [U. S.- Comp. St. 1901, p. 3676], for conspiring to commit an offense against the United States; the offense being the making of certain false entries in a book of the People’s National Bank of Newark, Ohio, in violation of section 5209 [U. S. Comp. St. 1901, p. 3497], The plaintiff in error was convicted on a plea of nolo contendere, reserving his objections to the sufficiency of the indictment by a demurrer and a motion in arrest of judgment, both of which were overruled.</p> <p>Section 5440 reads as follows:</p> <p>“If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.”</p> <p>Section 5209 provides:</p> <p>“Every president, director, cashier, teller, clerk, or agent of any association, * * * who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor and shall be imprisoned not less than five years nor more than ten.”</p> <p>The indictment contains three counts, which differ only in the. averments 'of intent. The first count charges that the entries were made with intent to injure and defraud the banking association; the second, that they were made with intent to deceive certain officers of the association, to wit, the president and directors thereof; and the third, that they were made with intent to deceive any agent appointed in accordance with law to examine the affairs of the association.</p> <p>The first count reads as follows :</p> <p>“1st Count. Sec. 5440, R. S. U. S. (1st Supp. p. 264). Sec. 5209, R. S. U. S. The grand jurors of the United States of America, duly impaneled, sworn, and charged to inquire, within and for the Eastern Division of said district, upon their oaths and affirmations present that Harry J. Hoover and Harry P. Scott on, to wit, the first day of July, in the year of our Lord, one thousand nine hundred and two, in the county of Licking, in the state of Ohio, in the circuit and Eastern Division of the district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and willfully conspire together and with each other to commit an offense against the United States, that is to say, to violate section 5209 of the Revised Statutes of the United States, by making certain false entries upon the Certificates of Deposit Register of the People’s National Bank of Newark, Ohio, which said bank was then and there duly organized and established, and then and there existing and doing business under the laws of the United States, in the city of Newark, county of Licking, division and district aforesaid; and said Harry P. Scott was then and there an officer of said banking association, to wit, teller.</p> <p>“Said conspiracy was, in substance and effect, as follows, to wit;</p> <p>“Prior to June 1, 1902, the said Harry J. Hoover was assistant cashier of said People’s National Bank, and as such officer had theretofore unlawfully taken from the funds of said banking association, without the knowledge of the other officers or directors thereof, a sum of money in excess of $30,000. That upon June 1, 1902, he ceased to be an officer and employs of said banking association. That after he had ceased to be an officer of said banking association as aforesaid, and on the dates hereinafter mentioned, he purchased, or caused to be purchased, from the People’s National Bank, of Newark, Ohio, a large number of certificates of deposit, some of which said certificates of deposit were made out in the name of fictitious persons. The date of the purchase of said certificates of deposit, the amount thereof, and the person to whom made payable, are as follows:</p> <p>No. Date of Issue. To Whom Payable. Amount.</p> <p>56.555. June 12, 1902. H. J. Hoover, cashier...............$10,000 00</p> <p>56,577. June 12, 1902. H. J. Hoover, cashier............... 6,000 00</p> <p>56,786. June 27, 1902. H. J. Hoover, cashier............... 5,000 00</p> <p>56,665. June 18, 1902. John R. Morrison................... 1,446 50</p> <p>56,788. June 28, 1902. Samuel W. Floyd................... 725 00</p> <p>56.790. June 28, 1902. J. R. Dunlop........................ 525 00</p> <p>56.791. June 28, 1902. H. L. Boring........................ 375 00</p> <p>56.793. June 28, 1902. Martin L. Sanford.................. 325 00</p> <p>56.794. June 28, 1902. Martin L. Sanford................... 50 00</p> <p>56.813. June 30, 1902. J. G. Smith......................... 900 00</p> <p>56.814. June 30, 1902. Silas Monroe ....................... . 900 00</p> <p>56.815. .June 30, 1902. James R. Campbell.................. 830 00</p> <p>“And the grand jurors aforesaid, upon their oaths and affirmations, present that for the purpose of concealing the fact that he had unlawfully taken a large sum of money from the said People’s National Bank as aforesaid, and with the intent to make certain false and fraudulent entries upon the books of said banking association, the said Harry J. Hoover and Harry P. Scott conspired together and with each other and agreed that the said Harry P. Scott, then and there an officer , of said banking association as aforesaid, was to permit and assist the said Harry J. Hoover in entering said bank after business hours, and after the other officers had left its place of business, for the purpose and with the intention of making certain false entries in the Certificate of Deposit Register of said banking association, a book purporting to show ’the actual receipts and payments upon interest-bearing accounts and deposits received by the said banking association, which accounts are not subject to check, and for which certificates of deposit are issued, and also purporting to show a memorandum, giving the name of depositor, date of receipt, and payment, with number of certificate and the amount thereof. It was a part of said conspiracy, and agreed to by and between the said Harry J. Hoover and Harry P. Scott, that the said Harry J. Hoover would stamp or mark in the column in said Certificate of Deposit Register, under the word ‘Paid,’ certain dates, which said dates, placed in said column as aforesaid, would then and there and thereafter show, indicate, and declare that the said certificates so marked with the date in the column under the word ‘Paid,’ as aforesaid, were upon said dates paid.</p> <p>“That thereafter, on the first day of July, 1902, said Harry J. Hoover and Harry P. Scott did a certain overt act to effect the object of said conspiracy, to wit, said Harry P. Scott permitted and assisted the said Harry J. Hoover to enter said bank after business hours, and while the officers of said banking association were away, with full knowledge of his intention and purpose, and while he was present in said bank the said Harry J. Hoover marked in the Certificate of Deposit Register, in the column under the word ‘Paid,’ certain dates, to wit:</p> <p>“On certificate No. 56,555, issued June 12, 1902, to H. J. Hoover, cashier, in the sum of $10,000.00, the date ‘June 30, 1902,’ was entered.</p> <p>“On certificate No. 56,577, issued June 12, 1902, to H. J. Hoover, cashier, in the sum of $6,000.00, the date ‘June 30, 1902,’ was entered.</p> <p>“On certificate No. 56,786, issued June 27, 1902, to H. J. Hoover, cashier, in the sum of $5,000.00, the date ‘July 1, 1902,’ was entered.</p> <p>“On certificate No. 56,655, issued June IS, 1902, to John R. Morrison, in the sum of $1,446.50, the date ‘June 21, 1902,’ was entered.</p> <p>“On certificate No. 56,788, issued June 28, 1902, to Samuel W. Floyd, in the sum of $725.00, the date ‘July 1, 1902,’ was entered.</p> <p>“On certificate No. 56,790, issued June 28, 1902, to J. R. Dunlop, in the sum of $525.00, the date ‘July 1, 1902,’ was entered.</p> <p>“On certificate No. 56,791, issued June -28, 1902, to H. L. Boring, in the sum of $375.00, the date ‘June 30, 1902,’ was entered.</p> <p>“On certificate No. 56,793, issued June 28, 1902, to Martin L. Sanford in the sum of $325.00, the date ‘June 30, 1902,’ was entered.</p> <p>“On certificate No. 56,794, issued June 28, 1902, to Martin L. Sanford, in the sum of $50.00, the date ‘June 30, 1902,’ was entered.</p> <p>“On certificate No. 56,813, issued June 30, 1902, to J. G. Smith, in the sum of $900.00, the date ‘July 1, 1902’ was entered.</p> <p>“On certificate No. 56,814, issued June 30, 1902, to Silas Monroe, in the sum of $900.00, the date ‘July 1, 1902,’ was entered.</p> <p>“On certificate No. 56,815, issued June 30, 1902, to James R. Campbell, in the sum of $830.00, the date ‘July 1, 1902,’ was entered.</p> <p>“Which said entries placed in said Certificate of Deposit Register as aforesaid were false and fraudulent entries, and caused the Certificate of Deposit Register in said bank to appear as if all of the aforesaid certificates of deposit had been paid upon the respective dates aforesaid, while in truth and in fact the said entries were false and fraudulent, in this, to wit, that neither of said certificates of deposit aforesaid were paid at the date of said fraudulent entry as aforesaid, but are still outstanding obligations against said banking association, as they, the said Harry J. Hoover and Harry P. Scott, well knew.</p> <p>“And the grand jurors aforesaid, upon their oaths and affirmations, do further present that said false entries were then and there made as aforesaid in the book of said banking association as aforesaid, and said conspiracy entered into by said Harry J. Hoover and Harry P. Scott as aforesaid, with the intent on the part of them, the said Harry J. Hoover and Harry P. Scott, to injure and defraud said banking association, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.”</p> <p>It is contended the indictment is bad: (1) Because a violation of section 5209 is not “an offense against the United States,” not being aimed directly at the government itself. (2) Because it does not charge that the defendants below conspired to commit or did commit acts constituting a violation of section 5209. The alleged object of the conspiracy was the making of certain false entries, not by the plaintiff in error, who was an officer of the bank, but by Hoover, who was not an officer of the bank.</p>

<p>1. Ebrob — Presentation of Question to Lower Court — Exception to Charge.</p> <p>An exception to “so much of the charge of the court as states to the jury that the only question for the jury to consider is [a question stated]” will not support an assignment of error based on the failure of the court to submit to the jury a certain other question, as to which no instruction was requested, and which was not called to the court’s attention.</p>

This cause comes here upon writ of error to review a direction of a verdict in favor of the defendant by the United States Circuit Court for the Southern District of New York.

<p>1. Aliens — Chinese—Review—Eeeob.</p> <p>Where, on appeal from a United States Commissioner in Chinese de-' portation proceedings, the district judge erroneously treated the case as before him as judge, and not as before the District Court over which he presided, by reason of which no final judgment was entered in the District Court, and no bill of exceptions was filed there, or transcript of the proceedings certified by the clerk of the District Court, the Circuit Court of Appeals acquired no jurisdiction to review the order under Act March 3, 1891, c. 517, § 6, 26 Stat 828 [U. S. Comp. St. 1901, p. 549], providing that the jurisdiction of that court extends to the review of final decisions of the District Courts and the existing Circuit Courts, though the writ of error, which ran to the judge’s order only, might be regarded as running to the District Court.</p> <p>f 1. Citizenship of the Chinese, see notes to Gee Eook Sing v. United States, 1 C. C. A. 212; Lee Sing Ear v. United States, 35 C. C. A. 332. /</p>

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

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

<p>1. Contracts — Construction—Payment.</p> <p>A contract for the purchase of certain vessels provided that in consideration thereof B. agreed to pay to the seller the sum of $65,750, as follows : $20,000 by drafts payable on certain dates, “and the note or notes of the A. Transportation Co. for the balance.” Held, that such agreement was unambiguous, and did not require payment of the whole consideration in money, so as to entitle the seller, on the nonpayment of one of the notes of the transportation company, to recover the amount thereof from B.’s estate.</p>

Petition for Revision of Order of the District Court of the United States for the Eastern District of New York. This cause comes here upon a petition to review an order denying a motion to vacate proceedings in' bankruptcy against the corporation.

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

<p>1. Patents — License—Evidence Held not to Establish Renewal.</p> <p>An exclusive license to manufacture a patented article, granted by the owner of the patent for the term of one year, with privilege of renewal on certain conditions, held, under the evidence, not to have been renewed within the time agreed upon, wherefore the rights of the licensee terminated- at the expiration of the year, and a second licensee, who obtained an exclusive license to run from that time, paying the agreed consideration therefor, was vested during its term with the sole and exclusive right to make and sell the patented article.</p>

<p>1. Patents — Infbingement—Bosn Plates fob Blast Ftjbnaces.</p> <p>The Scott patent, No. 452,168, for bosh plates for furnaces, held valid and infringed.</p>

This is a bill to restrain infringement of claims 1 and 4 of patent No. 477,616, for an “improvement in electric annunciator drops, issued to James C. Warner, assignor to the Western Electric Company.” Upon the pleadings and evidence, Wing, District Judge, dismissed the bill; holding the first claim void for want of novelty, and the fourth, if valid, not infringed.

<p>In Equity. On motion for preliminary injunction</p>

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

In Bankruptcy. On petitions for review of decision of referee allowing the claim of Henry Goodhile against the bankrupt’s estate, and rejecting that of Wyman, Partridge & Co.

<p>1. Bankruptcy — Involuntary Proceedings — Partnership.</p> <p>To sustain proceedings in involuntary bankruptcy against a person as a partner in a firm, a partnership in fact must be shown, and not a mere holding out by which he may have become liable to creditors.</p> <p>2. Partnership — Evidence to Establish.</p> <p>The existence of a partnership may be deduced from facts and circumstances, and where two or more persons are engaged in a joint business enterprise, to which they contribute either capital, skill, or labor upon an understanding, tacit or otherwise, that they will share in common the-profits accruing therefrom, they are partners in fact and in law, both between themselves and as to creditors, although there is nó express agreement to that effect. '</p> <p>3. Same.</p> <p>Evidence considered, and held to show such relation on the part of a defendant in proceedings in involuntary bankruptcy to the business conducted in the name of his codefendant during a series of years as to-establish a partnership between them in such business.</p>

<p>1. Salvage — Suit Against United States — Jurisdiction.</p> <p>A claiua for salvage is founded on an implied contract, and, where it does not exceed $1,000, a suit thereon may be maintained against the United States in a District Court, under the Tucker act of March 3, 1887, c. 359, §§ 1-7, 24 Stat. 505, 506 [U. S. Comp. St. 1901, pp. 752-755], which provides for suits in either the Court of Claims or a Circuit or District Court on “all claims founded upon * * * any contract, express or implied, with the government of the United States, * * * in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity or admiralty if the United States were suable.”</p> <p>2. Same — Salvage on Duties Collected.</p> <p>A lighter loaded with imported sugar, on which the duties had been paid, but which was still in the custody of the customs officers, was saved from fire in the port of New York by libelant’s tug. Held, that the government had an interest in the sugar to the extent of the duty paid thereon, and that libelant was entitled to recover from the United States salvage on such amount at the same rate allowed against the sugar itself.</p> <p>3. Same — Findings oe Law.</p> <p>In an action against the United States to recover salvage on duties collected by reason of the salving of merchandise while in the custody of the customs officers, the court will not make findings of law defining the powers of the Secretary of' the Treasury in respect to refunding the duties under Rev. St. § 2984 [U. S. Comp. St. 1901, p. 1958], had the merchandise been destroyed.</p>

<p>1. Benefit Dife Insurance — Renunciation of Contracts — Right of Member to Rescind.</p> <p>A life insurance association renounced its contracts with its members, by adopting a by-law, without legal right, by which it attempted to arbitrarily reduce the amount payable on their certificates below the amount therein agreed to be paid, and by levying assessments thereunder on the reduced amount. A member, on receiving notice of the reduction, refused to assent thereto, and declared his intention of enforcing the contract as made. He tendered the assessments at the former rate, but, on their being refused, paid at the reduced rate for more than two years, but always under protest, and he then notified the association of his intention to rescind the contract, and demanded the return of the assessments he had paid before the reduction. Held, that while the payments made after the adoption of the by-law were voluntary, and could not be recovered back, they did not bind him as an acquiescence in the action taken, nor did his declaration of his intention to insist on performance constitute an irrevocable election which precluded him from afterwards rescinding the contract and recovering the payments previously made, where the association was not misled or prejudiced by the delay.</p>

This is a hearing upon writs of habeas corpus and certiorari. Defendant was arrested upon a warrant issued by a United States commissioner, and, after a hearing before that officer, was committed to await the action of the District Judge upon an application to be made by the United States attorney for a warrant of removal to the District of Columbia for trial upon an indictment found by a grand jury of the Supreme Court of the District of Columbia.

<p>1. Towage in Hudson River — Floating Ice — -Negligence of Tug.</p> <p>A tug started from Jersey City up the Hudson to Yonkers, in the night, with libelant’s canal boat and another tow belonging to the owner of the tug. Encountering floating ice, the master of the canal boat requested to be left, but the tug proceeded with her to Yonkers, where she was cast loose, and permitted to drift up the river with the flood tide for half a mile, while the other tow was being taken care of. She was then brought back against the tide, and through the ice. They stopped at a wharf on the way, and the master again requested to be left there, but the tug proceeded to the wharf where she was to be delivered, where it was found that her planks were cut through by the ice, so that she soon filled. Held, that the tug failed to exercise the degree of reasonable diligence and care imposed on her by the circumstances, and especially after having continued the voyage against the master’s protest, and was liable for the injury.</p>

<p>1. Nature of Action — Legal or Equitable — Avoiding Settlement fob Eeaud.</p> <p>Where the beneficiary in- a life insurance certificate after the death of the insured was induced by false statements made by representatives of the association to settle her claim and receipt the certificate, her remedy, in a federal court, at least, is in equity, and not at law, where evidence to avoid the settlement and receipt for fraud is not admissible.</p>

<p>In Equity. On rule to show cause why defendants should not be punished for contempt.</p>

<p>1. Removal of Causes — Removal by One of Several Defendants.</p> <p>An action brought in a state court against a number of defendants, all of whom are citizens of other states, is removable by any one of the defendants, although it involves but a single controversy.</p> <p>If 1. Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 244; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>See Removal of Causéis, vol. 42, Cent. Dig. § 90.</p>

<p>1. Adverse Possession — Federal Courts — Following State Decisions.</p> <p>The Kentucky statute of limitations relating to actions for the recovery of land has been liberally construed and applied by the Court of Appeals of the state in respect to the adverse possession of settlers which will ripen into a title thereunder, on account of the confusion created by the loose practice of the state in issuing patents for conflicting grants, and its decisions, having become a rule of property in the state, will be followed by the federal courts.</p> <p>2. Same — What Constitutes — Kentucky Statutes.</p> <p>Under the statute of limitations of Kentucky (Ky. St. 1903, § 2505), which requires an action for the recovery of land to be brought within 15 years after the right to institute it accrues, and the champerty statute (Id. § 210), which provides that “all sales or conveyances * * * of any lands * * * of which any other person at the time of such sale, contract or conveyance has adverse possession shall be null and void,” the elements constituting adverse possession are the same.</p> <p>3. Same — Extent op Possession.</p> <p>An entry into possession of any part of a tract of land, under a deed containing specific metes and bounds and purporting to convey the same, gives constructive possession of the whole tract, if not in any adverse possession; and a continuation of such possession, although actually of only a part, but under claim of title to the whole, for the statutory period, will give the occupant title to the whole by adverse possession, at least against one out of possession who claims title to the entire tract through a single conveyance and source of title.</p> <p>4. Same — Separate Tracts Conveyed by Single Deed.</p> <p>A title founded on adverse possession under a deed which purports to convey the title is wholly independent of prior conveyances or of the grantor’s actual title, and it is therefore immaterial whether his title to the whole was obtained from a single source or through separate con veyances of different parts of the tract.</p> <p>5. Same — Notice op Extent — Record op Deed.</p> <p>The record of a deed under which the grantee has entered into possession is notice to the world of the extent of his possession.</p> <p>6. Same — Kentucky Champerty Statute.</p> <p>One holding two adjoining tracts of land under separate patents took possession of one and made improvements thereon, and thereafter sold and conveyed all the land as a single tract to defendants, who leased the entire tract, and the tenant went into possession of the improved portion. Held, that defendants’ possession through their tenant extended to all the land covered by their deed and lease, and that a subsequent conveyance to plaintiff by an adverse claimant was void as to the entire tract, under the Kentucky champerty statute (Ky. St. 1903, § 210), which provides that all conveyances of lands of which any other person at the time has adverse possession shall be void.</p> <p>If 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>

On final hearing, appellant’s bill to enjoin appellees from purloining its continuous quotations was dismissed for want of equity. Appellees discuss the questions whether the quotations are property, and whether, if so, appellant lost its proprietary right by its method of giving them out; but that part of the case is ruled in this court by the decisions in Illinois Commission Co. v. Cleveland Telegr. Go., 119 Fed. 301, 56 C. C. A. 205, and Sullivan v. Postal Telegr.

One Dr. James Baker, in the year 1780, established at Dorchester, Mass., a manufactory for chocolate and other products of cocoa. He was succeeded in business by his son, and later by his grandson, Walter Baker.

<p>1. Shipping — Damage to Caego — Evidence as to Cause.</p> <p>A ship may sustain the burden of proof resting on her to show that cargo damage was due to a cause for which she is not liable by circumstantial evidence as to the manner in which the water causing the damage entered the hold, and in the absence of direct evidence the court is justified in adopting her theory in that respect, where the facts and circumstances shown are consistent with such theory and not consistent with any other.</p> <p>2. Same — Exemption under Harter Act — Presumption of Seaworthiness.</p> <p>The casting of the burden of proof on one party or the other in a given case does not destroy the presumptions in favor of a party which exist under the general law of evidence. So a shipowner, claiming exemption from liability for cargo damage under' section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), has the burden of proving the seaworthiness of the vessel; but, in the absence of evidence to the contrary, such burden is met prima facie by the presumption that he performed his duty in making her seaworthy at the commencement of the voyage.</p> <p>8. Same — Fault in Management of Vessel.</p> <p>Where a ship was at the commencement of a voyage in all respects seaworthy, and properly manned, equipped, and supplied, damage to a sugar cargo from fresh' water which escaped into the hold where the sugar was stowed while the cargo was being discharged, by reason of a valve having been improperly left open while water from the river was being pumped into the engine tank, was due to a fault in the management of the vessel, for which she is exempted from liability by section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat 445 [U. S. Comp. St. 1901, p. 2946]).</p> <p>IT 2. Statutory exemption of shipowners from liability, see note to Nord-Deutscher Lloyd v. Insurance Co. of North America, 49 C. C. A. 11.</p>

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

<p>Appeal'from the District Court of the United States for the Northern District of New York.</p> <p>This is an appeal from an order of the District Court for the Northern District of New York, overruling specifications of objecting creditors and confirming the report of the referee recommending that a discharge be granted to the bankrupt. The objecting creditors appeal. The cause below is reported in 122 Fed. 688, 10 Am. Bankr. Rep. 527, where the facts are fully stated.</p>

<p>1. Circuit Courts of Appeals — Jurisdiction—Question of Jurisdiction of Lower Court.</p> <p>Under Act March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 547], creating the Circuit Courts of Appeals, section 6 (26 Stat. 828 [U. S. Comp. St. 1901, p. 549]), an appeal to such court does not bring before it for review the question of the jurisdiction of the Circuit or District Court from which the appeal is taken, which is reviewable only by the Supreme Court, under section 5.</p> <p>2. Contracts — Legality—Agreements in Restraint of Trade.</p> <p>A contract by which sellers of property agreed, as a condition of the sale, that they would not become engaged or interested in the business of catching or manufacturing the products from certain classes of fish along the Atlantic seaboard, in competition with the business of the purchaser, for the term of 20 years, is not void as in restraint of trade and contrary to public policy.</p> <p>If 1. Review by Circuit Court of Appeals of jurisdiction of Circuit Courts, see note to Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 48 C. C. A. 351.</p> <p>3. Same — Agreement Construed.</p> <p>A covenant by sellers of fisheries plants, together with their good will, not to enter into business competing with the purchaser along the Atlantic seaboard for a term of 20 years, held to be personal in its nature, and to preclude them from establishing a competing business on Chesapeake Bay.</p>

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

<p>1. Patents — Invention—Trolley Crossings and Switches.</p> <p>The Van Depoele patents, No. 393,278 and No. 396,313, both relating to crossings or switches for overhead electric conductors, were not anticipated or rendered void for lack of invention by the fact that railroad switches and crossings previously in use were somewhat similar in construction and principles of operation, the adaptation of such principles to an underrunning trolley system, and the construction of mechanism therefor, requiring more than mere mechanical skill; nor is there anything anticipatory in prior patents for store-service systems. Claims 4, 5, and 6 of the former patent, and 1, 2, and 3 of the latter, also held infringed.</p> <p>2. Same — Prior Art — Publicity.</p> <p>An application for a patent filed prior to a patent in suit can have weight as an anticipation only if there has been some actual use of the invention, so that there are elements of publicity; the application itself not being sufficient to make the invention a part of the prior art.</p> <p>3. Same — Separate Patents for Variations of Same Structure.</p> <p>A modification of the device of a patent to adapt it to different situations and wider use may be made the subject of a second patent, where it involves invention, although both inventions may have been made at the same time.</p>

<p>1. Patents — Validity—Determining- Question on Demubeeb.</p> <p>A patent will not be adjudged void on demurrer, where the precise points raised have been previously decided in other suits in the district in favor of the complainant.</p>

<p>1. Patents — Electrical Converters — Infringement.</p> <p>Claim 4 of letters patent of the United States No. 366,362, dated July 12, 1887, issued to George Westinghouse, Jr., for “improvements in electrical converters”, sustained, and held not infringed.</p> <p>2. Same.</p> <p>The two rectangular coil openings shown in the drawings and description of the converter are not “open spaces in its core” within the meaning of claim 4.</p> <p>«.Syllabus by the Court)</p>

<p>1. Patents — Suit fob Infringement — Jurisdiction of Equity.</p> <p>A court of equity has jurisdiction of a suit for infringement of a patent which had not expired when the bill was filed, inasmuch as an injunction might have issued before its expiration, although no preliminary injunction was applied for and the patent expires before a hearing.</p> <p>2. Same — Conjoint Use.</p> <p>A bill for the infringement of an expired and an unexpired patent states ground for relief in equity, where it alleges that the infringement consists in the use by defendant of a machine which embodies the devices of both patents, so conjoined as to render it practically impossible to apportion the damages and profits resulting from the use of each element of the machine.</p> <p>3. Same — Multifabiousness of Bill.</p> <p>Such a bill is not multifarious, as joining a legal with an equitable demand, since under its allegations the recovery sought is not separable with respect to the two patents, and a court of equity, having acquired jurisdiction, will grant all appropriate relief in connection with the use of the alleged infringing machine.</p> <p>4. Same — Laches.</p> <p>A demurrer to a bill for infringement on the ground of laches cannot be. sustained, where the only facts to support it appearing from the bill are that the suit was not commenced until a short time before the patent expired and that it had previously been sustained.</p> <p>If 1. See Patents, vol. 38, Cent. Dig. § 465.</p> <p>f 3. Pleading in patent infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p> <p>If 4. Laches as a defense in patent infringement suit, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 D. C. A. 613.</p>

<p>1. Patents — Suit foe Infringement — Equity Jurisdiction.</p> <p>A court of equity is without jurisdiction of a suit for infringement of a patent where process was not issued until six days before the expiration of the patent, and was returnable thereafter, and no application was made for a preliminary injunction, nor special ground therefor alleged in the bill.</p>

<p>1. Forfeiture — Entry of Land for Taxation — Construction of State Constitution.</p> <p>Section 6, art. 13, of the Constitution of West Virginia provides: “It shall be the duty of every owner of land to have it entered on the land books of the county in which it, or a part of it, is situated, and to cause himself to be charged’With the taxes thereon, and pay the same. When for any five successive years after the year 1869, the owner of any tract of land containing one thousand acres or more, shall not have been charged on such books with state tax on said land, then by operation hereof, the land shall be forfeited and the title thereto vest in the state. But if, for any one or more of such five years, the owner shall have been charged with state tax on any part of the land, such part thereof shall not be forfeited for such cause. * * *” Held: That'this provision does not apply to land that was on such landbooks and charged with taxes in the name of the owner at the time said Constitution was adopted. Such land, or any land that was entered and charged with taxes upon such landbooks in the name of the owner within the five years next after the year 1869, does not become forfeited by consequence of any subsequent omission of the land or noncharging of state taxes.</p> <p>2. Same — Duty of Owner, when Fulfilled — Owner Has no Control of Land Once Entered on Landbooks — No Forfeiture for Failure of Public Officers to Enter and Charge Land.</p> <p>When land has once been entered upon the landbooks in the name of the owner, his duty with regard to entering it has been fulfilled. He has no control over the entering and charging of such land with taxes thereafter, or over the taxing officers. The land can only be omitted by such officers, and no forfeiture thereof can result from their failure to enter it and charge it with taxes. But if said section 6, art. 13, Const. W. Va., be construed to make it the duty of the landowner to have his land entered upon the landbooks whenever for any cause it may be omitted therefrom, and land has been sold to the state at a delinquent tax sale, and is afterwards redeemed by the owner in a proceeding instituted on behalf of the state in the circuit court of the state to dispose of the land, and the decree of redemption entered upon his petition to redeem directs the clerk of the court to certify copies thereof to the auditor and taxing officers, such owner has done all that is reasonably in his power to have the land re-entered and charged with taxes, in the absence of authority to make the entry and charge in person, and of any statutory direction as to how to “have” it done; and no forfeiture of said land can accrue because the land is not re-entered upon the landbooks and charged with taxes.</p> <p>8. Same — Constitutional Law — Vesting of Title of One Private Person in Another — Due Process of Law — Fourteenth Amendment.</p> <p>Section 3 of article 13 of said state Constitution provides that: “All title to lands in this state * * * hereafter forfeited, not redeemed, released or otherwise disposed of, vested, and remaining In this state, shall be, and is hereby transferred to, and vested in” certain classes of persons, if any such there be, for so much of said land as is claimed by them adversely to the person in whose name the same was forfeited, under certain specified conditions. A statute of the state provides for the redemption of land forfeited to the state in a suit to be brought by the state against the former owner for the purpose of selling such land for the benefit of the school fund, but requires such suit to be dismissed as to- any land held under said section 3, if, during the pendency of such suit, it shall appear that it is so held; and provides that any redemption that may be had in such suit shall not affect the title of any person holding under said section. Held, that as to land purporting to be forfeited under section 6 of said article 13 by reason of the noncharging of state taxes thereon, and falling under the provisions of section 3, construed to operate in futuro, the attempted forfeiture is not through the instrumentality or aid of a judicial proceeding, but without it, and by the operation of the Constitution alone, and is an attempted transfer by the state of the property of one private person, without his consent, to another private person, for his private benefit, by mere legislative action, and not by “due process of law,” and is repugnant to the fourteenth amendment, and Is invalid and inoperative.</p> <p>4. Same.</p> <p>The Constitution of West Virginia and the statutes of that state, so far as they purport or undertake to forfeit and divest the title of any person to his land and vest the same in another private person, or vest the same in the state without provision for redemption by or on behalf of the owner of the whole or such part of said land as he may desire to redeem, or without provision for a sale thereof and the return of the proceeds to such owner after deduction of all taxes and all proper charges therefrom, attempt to deprive persons of their property without due process of law, and are in contravention of the fourteenth amendment to the Constitution of the United States. There can be no valid forfeiture where such right of redemption or receipt of proceeds is prohibited or not provided for.</p> <p>5. Same — Class Legislation.</p> <p>Said provision of the state Constitution in attempting to forfeit tracts containing 1,000 acres or more, and not tracts containing less than 1,000 acres, makes an unreasonable classification and discrimination, and is repugnant to the equality clause of the fourteenth amendment to the Constitution of the United States, and is invalid.</p> <p>6. Sale oe Land not Subject to Sale bt State.</p> <p>Ah ex parte proceeding in the circuit court of the state by a commissioner of school lands for the sale of land as waste and unappropriated which is not waste and unappropriated, nor forfeited, nor otherwise subject to sale by the state, is coram non judice, and a sale and deed made thereunder are void.</p> <p>(Syllabus by the Court.)</p>

<p>•1. Removal of Causes — Jurisdiction of Federal Court — District of Suit.</p> <p>Under the judiciary act of March 3,1887, c. 373, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, § 2, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509], a cause is removable by a defendant who is a nonresident of the state, on the ground of diversity of citizenship, although neither party is an inhabitant of the district.</p> <p>T1. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p>

<p>1. Jurisdiction of Federal Court — Suit foe Dissolution of Corporation-Enforcement of Statutory Remedy.</p> <p>A proceeding by a stockholder or creditor of a corporation for an Injunction and tbe appointment of a receiver for the corporation as an insolvent, under the New Jersey corporation act (P. L. 1896, p. 298, § 65), which authorizes such proceeding in the Court of Chancery whenever a corporation shall become insolvent or suspend its ordinary business for want of funds, is one involving a money controversy, so as to that extent to be within the jurisdiction of a federal court, where diversity of citizenship exists and the requisite amount is in dispute.</p> <p>2. Equity Jurisdiction — Federal Courts — Suit Based on Legal Demand.</p> <p>A simple contract creditor of a corporation cannot maintain a suit in a federal court of equity to establish his claim and for the seizure and application thereon of the property of the corporation, although the state statute may authorize such a proceeding in a state court.</p> <p>8. Same — Suit for Dissolution of Corporation — Statutory Remedy.</p> <p>A suit by a stockholder of an insolvent corporation for the dissolution of the corporation and the winding up of its affairs is within the jurisdiction of a federal court of equity, where such remedy is expressly given the stockholder by a state statute.</p> <p>1f 1. Dissolution of foreign corporations, see note to Republican Mountain Silver Mines v. Brown, 7 C. C. A. 421.</p>

<p>At Law. Action to recover damages for infringement of copyright. On demurrer to declaration.</p>

<p>1. Bankruptcy — Pees op Referee — Extra Allowances.</p> <p>Under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], as amended by Act Peb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 409], the only allowance which can be made to a referee in addition to the fees and commission expressly prescribed therein is for expenses necessarily incurred, a detailed account of which must be kept and returned to the court, verified by the oath of the referee, and accompanied by vouchers when they can be procured.</p>

<p>L Unfair Competition — Adoption of Similar Name — Grounds for Injuno-, tion.</p> <p>Complainants'have for many years manufactured in Holland, and for a number of years have widely advertised and sold in the United States, a preparation known as “Van Houten’s Cocoa,” which has attained a high reputation and large sale. Defendant, the Hooton Cocoa & Chocolate Company, was organized in 1897, and commenced the manufacture and sale of cocoa under the name of “Hooton’s” — a man by that name having been a stockholder and the first president, but afterwards severing his connection with the company. There was no imitation of complainants’ packages, nor was there any evidence that the name “Hooton’s” was adopted for any fraudulent or dishonest purpose; but it was shown that it had a tendency to confuse purchasers, and that, in a number of cases, dealers had been deceived into believing defendant’s product to be that of complainants. Held, that such liability to confusion and deception was ground for the granting of an injunction restraining defendants from using the name unless accompanied by a clear statement that its cocoa was not that of complainants.</p> <p>T1. Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

At Law. On plea in abatement and to the jurisdiction. A plea in abatement and to the jurisdiction having been filed, the issue came on to be heard upon the following stipulated facts: (1) The plaintiff is a Connecticut corporation located in New Haven, and engaged in the business of manufacturing cardboard and card middles.

At Law. Trial to the court. Findings of law and fact by the court. Findings of Law. (1) The findings of law are sufficiently stated in the opinion filed this day in this case, which the court adopts as a part hereof. Findings of Fact. (1) The court adopts as a part of these findings the “agreed facts” filed February 25,' 1904.

<p>1. Cashier of Mint — Liability for Theft by Chief Clerk — Officers.</p> <p>The cashier of a mint, appointed under Rev. St. § 3504 [U. S. Comp. St. 1901, p. 2340], providing that the superintendent of the mint shall appoint assistants and clerks, is not an officer of the mint, within section 3506 [page 2341], providing that the superintendent of each mint shall be the keeper of all bullion or coin in the mint, except while the same is legally in the hands of other “officers”; Const, art. 2, § 2, providing that the president shall nominate, and, by and with the advice and consent of the Senate, shall appoint, all officers of the United States “whose appointments are not herein otherwise provided for,” but Congress may vest the appolntment of Inferior officers In the President alone, in courts, or In the heads of departments; so that, where the combination of the lock of the vault of the mint was in the possession of the superintendent, the chief clerk, and the cashier of the mint, the cashier was not liable for the theft of money therefrom by the chief clerk.</p>

<p>1. Cashier or Mint — Bond.</p> <p>• Though, under Rev. St. § 3496 [U. S. Comp. St. 1901, p. 2338], the cashier-of the mint is not an officer thereof, and by section 3506 [U. S. Comp. St. 1901, p. 2341] the superintendent of the mint is declared to be the keeper of all bullion or coin therein, except while it is legally in the hands of other officers, yet, under section 3501 [U. S. Comp. St. 1901, p. 2339], providing that each officer of the mint shall give bond for faithful and diligent performance of the duties of his office, and that similar bonds may be required of the assistants and clerks, which shall not relieve the officers-from liability for acts and omissions of their subordinates or employés, the cashier of the mint may be required to give a bond for the faithful-performance of any duty intrusted to him; and a bond taken of him, describing him as cashier of the mint, conditioned that he will perform, execute, and discharge all the duties of his position according to the laws and the regulations of the department, will be assumed to have been-taken under section 3501, though the bond recites, and the complaint thereon alleges, that the cashier was an officer of the mint; such allegation and recital being treated as surplusage, as may be done.</p>

Applications to Review Decisions of the Board of General Appraisers. The decisions under review affirmed the assessment of duty by the collector of customs at the port of New York on merchandize imported by Dodge & Olcott and George Lueders. Note In re Dodge, G. A. 102 (T. D. 10,411). Compare Smith v. United States, 93 Fed. 194, 35 C. C. A. 265.

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

<p>1. Bankruptcy — Opposition to Discharge — Entry of Appearance.</p> <p>Under general order in bankruptcy No. 32 (89 Fed. xiii), requiring creditors opposing a discharge to enter an appearance on the return day fixed by the order to show cause and to file a specification of their objections within 10 days thereafter, a creditor has no right to enter an appearance after return day, and should not be allowed to do so except for good cause shown in excuse of the delay.</p> <p>2. Delay — Specification of Objections — Sufficiency.</p> <p>A specification of objections to the discharge of a bankrupt on the ground that he, with fraudulent intent to conceal his true financial condition, failed to keep books of account, is sufficient if made in the language of the act, but specifications on the ground of his transfer or concealment of property or the making of a false oath must set out the facts relied on.</p> <p>11. See Bankruptcy, vol. 6, Cent. Dig. § 712.</p>

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

In Bankruptcy. On petition for review of orders of referee sustaining objections of trustee to claim of First National Bank of Melvin, and rejecting such claim.

<p>At Law. On demurrer to plea in abatement, setting up lis pendens in state court, and on motion to vacate attachments.</p>

<p>In Admiralty. On appeal from clerk’s taxation of costs.</p>

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

<p>1. Preliminary Injunction — Ex Parte Application — Grounds—Discretion op Court.</p> <p>The granting of a preliminary injunction rests in the sound discretion of the court to be exercised in view of the circumstances of the particular case, including elements of hardship or other special features, and, while ordinarily such an injunction will not be granted on ex parte affidavits unless in a clear case, it is otherwise where the object for which it is sought is merely the maintenance of the status quo or the preservation of a fund in controversy pendente lite, and the merits of the case are left in doubt by the ex parte affidavits.</p> <p>(Syllabus by the Court)</p>

<p>1. Copyright — Infringement—Use of Citations from Lawbook.</p> <p>A copyright of a law encyclopaedia is not infringed by a subsequent work of like character because the author of the second work, in its preparation, used lists of cases bearing on different subjects copied from the copyrighted work, and, after examining the authorities cited, used such citations as he considered applicable in support of his own original text.</p>

This cause is brought here by writ of error from a judgment of the United States Circuit Court for the Southern District of New York, entered upon a verdict by the jury in favor of plaintiff for $50,000 damages for breach of contract. The plaintiff in the court below has died since the commencement of the action, and his estate is represented on this appeal by his executors.

<p>1. Indians — Action by United States to Protect Rights — Cattle Issued por Stockraising Purposes.</p> <p>Under the act of Congress ratifying agreements made with Indian tribes in Montana, including the Blackfeet, which provide, inter alia, for the issuance of cattle to such Indians for stockraising purposes, and that all such cattle and their increase shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered, except by consent of the agent in charge, an Indian to whom such cattle are issued acquires only a conditional ownership for the purposes stated in the act. and it is the right and duty of the United States to protect such ownership, for which purpose it may maintain an action in a federal court in behalf of an Indian from whom cattle so issued have been unlawfully taken; and such right is not affected by the fact that an Indian in whose behalf such an action is brought is a woman who is married to a white man, and has thereby become a citizen of the United States, but who remains on the reservation with her tribe — it being expressly provided by Act Aug. 9, 1888, c. 818, 25 Stat. 392, 1 Supp. Rev. St. p. 608, that such marriage and citizenship shall not “impair or in any way affect the right or title of such married woman to any tribal property or interest therein.”</p> <p>2.. United States — Action by — Effect of State Statutes.</p> <p>The right of the United States to maintain an action in respect to a governmental matter cannot be affected by a state enactment requiring a notice to be given or demand made as a condition precedent to suit.</p> <p>3. Sheriffs — Levy of Attachment — Seizing Property of Third Person.</p> <p>A sheriff is not protected in levying an attachment against a man on cattle owned by his Indian wife residing on a reservation, which cattle she could not lawfully dispose of, except with the consent of the Indian agent, and which, as required by law, bore the brand of the Indian Department, as well as her own brand, which was different from that of her husband; and it is immaterial that they were in the possession of the husband, or with cattle owned by him — the brands being sufficient to put him on inquiry as to the ownership.</p> <p>4. Confusion of Goods — Application of Doctrine — Cattle.</p> <p>The doctrine of confusion of goods has no application to cattle or horses, or other property of similar nature, that can be readily identified.</p> <p>5. Conversion — Evidence of Ownership — Declarations of Person in Possession.</p> <p>In an action against a sheriff and an attaching creditor for conversion of property of the debtor’s wife by its seizure and sale under the attachment, declarations of the husband to the creditor that the property was in his possession and that he was the owner are not admissible to prove his ownership as against plaintiff, especially where such declarations were made prior to the suit, and- were therefore not a part of the res gestas.</p> <p>6. Same — Action by United States.</p> <p>In an action by the United States, as guardian of an Indian woman, for the conversion by defendant of cattle issued to her by the government for stockraising purposes, and which she had no power to dispose of, declarations by her as to the ownership of the cattle are inadmissible against the plaintiff.</p> <p>7. Same — Declarations of Officer in Making Levy.</p> <p>Declarations of an officer, in making a levy, going to show his knowledge that the property levied on was owned by a third person, or that he was put on inquiry as to such ownership, are admissible in an action in behalf of such third person for the conversion.</p> <p>8. Trial — Separation of Jury — Admonition.</p> <p>The failure of the court, on the separation of the jury for a noon recess during a-trial, to admonish them against conversing about the case or forming an opinion thereon, as required by a statutory provision, is not a material error, where the admonition had been given on their previous separations during the same trial.</p> <p>9. Same — Remarks of Court to Jury — Harmless Error.</p> <p>Remarks of the court in its charge to the jury with respect to the conduct of the case by counsel held, while improper, not to have constituted prejudicial error.</p>

This is an appeal from an order made by the District Court in a proceeding in a bankruptcy case wherein Flora B. Hawley had been adjudicated a… Held: an unlawful preference. An order to this effect having been entered, the petitioner has appealed. He has also, out of caution, brought the ease up by petition for revision. As there is no controversy in respect to any question of fact upon the case as presented to us, it matters little which method of procedure is recognized.

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

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

<p>1. Bankruptcy — Jurisdiction op Court to Make Adjudication — Possession op Property by Receivers.</p> <p>The fact that the property of a corporation is in the possession of receivers appointed by a state court does not affect the jurisdiction of a court of bankruptcy to adjudicate such corporation a bankrupt.</p> <p>2. Same — Manufacturing Corporation — Effect op Receivership bepore Piling op Petition.</p> <p>The appointment of receivers for a manufacturing company, and its ceasing to do business in consequence, before the filing of a petition in bankruptcy against it, do not deprive the court of jurisdiction to make the adjudication against it as a corporation engaged principally in manufacturing pursuits.</p> <p>3. Same — Defense of Solvency.</p> <p>In involuntary proceedings in bankruptcy against a manufacturing corporation under Bankr. Act 1898, § 3a, cl. 5, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], based on its admission in writing of its inability to pay its debts, and its willingness to be adjudged a bankrupt on that ground, a creditor cannot prove its solvency as a defense.</p> <p>4 Same — Act of Bankruptcy — Power op Directors to Commit.</p> <p>Where, under the laws of the state, a corporation has power to make a general assignment of its property for the benefit of creditors, in the absence of a statute or by-law regulating the subject such assignment may be made by the board of directors, and, having such power, they may also make the admission in writing of the inability of the corporation to pay its debts, and of its willingness to be adjudged a bankrupt on that ground, which constitutes an act of bankruptcy under Bankr. Act 1898, § 3a, cl. 3, 30 Stat. 546 [U. S. Comp. St. 1901, § 3422], and such admission may be made the basis of a petition against it by its bona fide creditors.</p> <p>5. Same.</p> <p>The appointment of temporary receivers for a corporation does not deprive the directors of the power to make a written admission of its inability to pay its debts and its willingness to be adjudged a bankrupt on that ground, which may be made the basis of a petition against it by creditors.</p>

<p>1. Master and Servant — Railroads—Injuries to Servant — Negligence or Foreman.</p> <p>Burns’ Ann. St. Ind. 1901, § 7083, provides that every railroad corporation shall be liable in damages for personal injury suffered by any employé while in its service, the employé being in the exercise of due care and diligence, where the injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform and did conform. Held, that where the foreman of an inexperienced trackman, with knowledge that a buckled rail, when released by the removal of the bolts, was liable to spring with great force, directed such trackman to remove the last bolt holding such rail by tapping it with a wrench while standing between the rails of the track, and, on the bolt being driven out, the rail sprung inward, striking the trackman and inflicting serious injuries, the railway company was liable therefor under such section.</p> <p>2. Same — Pleading—Instruction.</p> <p>Where a complaint in an action for injuries to an inexperienced railroad trackman, caused by his being struck by the springing of a buckled rail as he released the bolts binding the same, under the direction of his foreman, alleged that plaintiff was ignorant of the danger, but that the foreman “knew” that the removal of a rail under such circumstances might be attended with such springing of the rail, the complaint should be construed as alleging merely that the foreman should have known of such danger, and not necessarily that he had actual knowledge thereof.</p> <p>3. Appeal — Exceptions—Review.</p> <p>Where the record on appeal fails to show that an exception was reserved to an instruction given, an objection thereto cannot be reviewed.</p>

<p>1. Bankruptcy — Acts op Bankruptcy — Giving Chattel Mortgage.</p> <p>The giving of a chattel mortgage is a “transfer” of property, as defined in the bankruptcy act, and, when given by - an insolvent with intent to , prefer the creditor to whom it is given, constitutes an act of bankruptcy, under section 3a, Act July 1, 1898, c. 541, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422],</p> <p>2. Same — Review op Order on Petition.</p> <p>Whether or not an order permitting the amendment nunc pro tunc of a petition in involuntary bankruptcy after the sustaining of a demurrer to the original petition was erroneous is immaterial, and the order will not be reviewed where the original petition sufficiently charged an act of bankruptcy, and the demurrer was erroneously sustained.</p> <p>H 2. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.</p>

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

<p>1. Contracts — Breach—Duty to Prevent Doss.</p> <p>A bidder for furnishing supplies to the Post-Office Department, who, on the acceptance of his bid, failed to execute the contract in accordance with his guaranty, cannot be held liable for the difference between the contract price of certain articles and the price paid by the department to the public printer for such articles three months after the default, where it is shown that at the time of such default and for several weeks thereafter the articles could have been purchased in the market for less than the contract price, and especially where it does not appear that the price subsequently paid was the market price, which alone could fix the measure of damages.</p> <p>2. Error — Grounds eor Reversal — Right to Nominal Damages.</p> <p>A judgment for defendant entered on a verdict directed by the court will not be reversed because plaintiff may have been entitled to nominal damages, where no permanent right is affected.</p>

<p>I. Banks — Drafts Issued by Cashier to Individual Creditor — Implied Authority.</p> <p>A bank cannot recover tbe amount collected on a cashier’s draft issued by its cashier and made payable to his individual creditor, where it is shown that the cashier had on numerous previous occasions drawn similar drafts in payment of his own debts, and such acts had continued for a period sufficiently long to establish a settled course of business in the conduct of the bank which had been sanctioned by its officers, and was known, or should have been known, to its directors.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. •</p> <p>In Bankruptcy. This cause comes here upon appeal from an order of the District Court, Southern District of New York, adjudging the appellants bankrupts.</p>

<p>1. Patents — Invention—Safety-Brake foe Elevatoes.</p> <p>The Eaton, Prince, and Livesey patent, No. 347,778, for a safety-brake for elevators, claim 6, is void for lack of invention.</p>

<p>1. Trade-Marks — Infringement and Unfair Competition Distinguished.</p> <p>Unfair competition is distinguishable from infringement of a trade-mark, in that it does not necessarily involve the question of the exclusive right of another to the use of the name, symbol, or device copied or imitated. A word may be purely generic or descriptive, and so not capable of becoming an arbitrary trade-mark, and yet there may be an unfair use of it which will constitute unfair competition.</p> <p>2. Same — Infringement.</p> <p>A trade-mark for an oil compounded from a secret formula, and used for a lubricant, rust preventer, and a polish, consisting of the words “Three in One” printed in black letters, and the picture of the figure “1” in red on a white background, upon which are superimposed in white the figure “3” and the word “in,” is not infringed by a trade-mark used for a similar oil consisting of the words “Big Four” in red, and the picture of a large figure “4” in blue, superimposed upon a rectangular background in red, containing other descriptive words in blue and white letters.</p> <p>3. Same — Unfair Competition.</p> <p>The fact that a defendant which had been engaged in the manufacture and sale of oil in bottles for 20 years adopted for a new product a label wholly distinctive from those previously used is no evidence of a fraudulent intention to compete unfairly with complainant, which had placed on the market a similar article, where its prior labels were also distinctive from each other, and the new product was different in quality from any it had previously made.</p> <p>4. Same.</p> <p>The law of unfair competition seeks only to restrain fraudulent practices inducing confusion of goods and deception of the public, and it cannot be used to prevent a defendant from adopting a trade-mark or label intended to attract attention and popularize its product, although it results, and is intended to result, in better enabling it to compete with complainant, where no deception or confusion of goods is caused or intended thereby.</p> <p>5. Same.</p> <p>The fact that a defendant has been, and still is, a large purchaser of an article made by complainant as a jobber, does not create any trust relation between them which precludes it from placing on the market a competing article of its own manufacture.</p> <p>-6. Same.</p> <p>That defendant issued a circular advertising an article of its manufacture to some extent similar to one issued by complainant, and inclosed in the cartons containing its goods, does not constitute unfair competition, where defendant’s circulars are not so inclosed, and are sent only to jobbers, and do not come into the hands of retail purchasers.</p> <p>7. Same.</p> <p>Labels and cartons used by complainant and those subsequently adopted by defendant compared, and held not to show such similarity as to charge defendant with unfair competition.</p> <p>3. Same.</p> <p>Unless a defendant adopts means calculated to injure complainant through unfair competition, the intention is immaterial; there being no ground for relief where there has been no injury.</p> <p>If 1. Unfair competition, see notes to Seheuer v. Muller, 20 G. C. A. 165; Lire -v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1. Patents — Infringement—Claims for Combination.</p> <p>In a claim of a patent for a combination, all the elements which the patentee has specified must be regarded as material, and infringement cannot be found in a device in which one of such elements is omitted, unless an equivalent part is employed.</p> <p>2. Same — Omission of Parts — Quill-Grinding Machine.</p> <p>The Levy patent, No. 664,564, for a machine for grinding quills of feathers, claim 1, includes as an element of the combination a spring, the ends of which bear on the suspended journal bearings of the presser-roll, and also “means for adjusting the tension of the said spring.” Held, that such claim is not infringed by a machine which employs an equivalent spring, although of different form, but has no means for adjusting the tension of such spring.</p>

<p>1. Equity Jurisdiction — Suit eor Accounting — Adequate Remedy at Law.</p> <p>Complainant insured defendants, who were building contractors, against liability for injuries to their employés, or to others through the negligence of their employés, the stipulated premiums being based upon a percentage of the amount paid by defendants in wages during the term of the policies. An estimate of such amount was made at the beginning, and premiums paid thereon, the contract providing that defendants should make a statement at the end of the policy period of the actual amount in accordance with which the premium should be readjusted by a rebate or additional payment. Held, that a bill alleging that defendants refused to make such statement, fraudulently claiming that their pay rolls were no larger than estimated, did not state a cause of action for relief in a federal court of equity for a discovery and accounting, the remedy at law being adequate, in view of Rev. St. § 724 [U. S. Comp. St. 1901, p. 583], giving the right to compulsory orders for the production of books and papers.</p>

<p>1. Bankruptcy — Landlord’s Lien — Necessity of Proving Claim.</p> <p>A landlord, having a lien or charge for the rent due him on the property of his tenant at the time of the latter’s bankruptcy, but the amount of which was unadjudicated, in order to preserve his right to priority, must establish his claim by proof under the bankruptcy act, the same as other creditors.</p>

Actions in Ejectment. On motions by defendants for judgment on the pleadings. These are suits in ejectment for different parcels of land, growing out of the same title.

<p>In Equity. Suit to foreclose mortgage. On petition of Ida E. Wood to intervene as party defendant.</p>

<p>In Equity. On exceptions to answer.</p>

<p>At Law. Action at law on township bonds. On demurrer to complaint.</p>

<p>Motion to Punish for Contempt for Violation of Injunction Pendente Lite.</p>

This is an action upon a policy of fidelity insurance issued by the American Bonding & Trust Company of Baltimore City to the defendant in error, the Spokane Building & Loan Society, a corporation of Spokane, Wash. The bond was in the sum of $3,000, dated January 17, 1902, and insured the defendant in error against loss through the embezzlement of its secretary, R. L. Bogardus, for a term of one year.

<p>1. Insurance — Stipulations—Warranty.</p> <p>A stipulation in a fire policy that the Insurance company should not be liable for loss caused, directly or indirectly, by order of any civil authority, is not a warranty within Cal. Civ. Code, §§ 2607, 2608, providing that a statement in a policy of a matter relating to the thing insured or to the risk as a fact, and a statement which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty.</p> <p>2. Same — Open Policy — Provisions—Enforcement.</p> <p>Where complainants accepted an insurance certificate Insuring their crop against fires subject to all the terms and conditions of a certain open policy in defendant’s possession made a part of the certificate, plaintiffs were bound by the provisions of such open policy though they had no knowledge thereof.</p> <p>3. Same — Fires—Police Regulations — De Facto Authority.</p> <p>Where the supervisors of a county ordered fires to be started on certain pasture land for the purpose of destroying insects which were injurious to fruit crops, etc., under Gal. St. 1897, pp. 465, 466, e. 277, authorizing such supervisors to provide for the destruction of insects and to make sanitary regulations not in conflict with general laws, such supervisors had de facto authority to start the fire, which was sufficient to relieve an insurer of grain destroyed thereby, under a provision in the policy that insurer should not be liable for any loss occasioned by order of any civil authority, though the fire was started on other property, and the burning of plaintiff’s grain was occasioned by the fire getting beyond control.</p>

This is an appeal by the Lackawanna Transportation Company et al. from a decree of the District Court for the Western District of New York, entered May 2, 1903, adjudging that the World Marine Insurance Company, and other insurance companies, interveners, be paid the entire remnants and remainder of the moneys In the registry of the court, after paying certain court charges, and that the said amount be divided among the said interveners, pro rata, according to the amounts of…

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

The court below gave to the jury the following charge: “Gentlemen of the Jury: The first question submitted to you is this: When this action was brought, did the property sought to be recovered exceed in value the sum of two thousand dollars?

<p>1. Federal Courts — Statutory Liability — Rules or Decision.</p> <p>Where a cause of action is created by a state statute, the question when the right of action accrues, and what conditions authorize its enforcement, is one of judicial construction, as to which the decisions of the highest court of the state are controlling on the federal courts.</p> <p>2. Corporations — Insolvency — Stockholders’ Liability — Statutes — Construction — Limitations.</p> <p>Kan. Gen. St. 1889, e. 23, § 32, provides that, after an execution has been issued against a corporation and returned nulla bona, an execution may be issued on an order of court against stockholders to an extent equal in amount to the amount of his stock, or plaintiff in the execution may proceed by action to charge the stockholder with the amount of his judgment. Section 44 provides that if such corporation be dissolved, leaving debts unpaid, suits may be brought against stockholders at the time of the dissolution, and by another section the corporation is declared dissolved for such purposes when it has suspended business for more than a year. Under the decisions of the state courts, a creditor of a moneyed corporation may proceed by action to enforce the stockholder’s liability under section 44 immediately after the expiration of a year from the date of suspension of business without recovering judgment against the corporation, the right being complete on the corporation’s dissolution. Beld, that a creditor was not entitled to delay suit against a stockholder under section 44 while he was maintaining a suit against the corporation under section 32, and obtaining the return of executions unsatisfied, and hence the maintenance of such proceedings did not suspend the statute of limitations against an action against stockholders under section 44.</p> <p>j[ 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>Appeal from the District Court of the United States for the Southern District of New York.</p>

<p>1. Appeal — Interlocutory Judgment — Temporary Injunction — Dissolution.</p> <p>Act March 3, 1891, § 7, as amended by Act June 6, 1900, c. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 551], provides that where, on a hearing in equity in a district or circuit court, an injunction shall be granted or continued by an interlocutory order or decree in a case in which an appeal from a final decree may be taken to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals. Helé, that, where a temporary injunction was dissolved on a demurrer to the bill being sustained, plaintiff was not entitled to an appeal from so much of the order only as dissolved the injunction.</p>

<p>1. Life Insurance — Policies — Application — Attachment—Photographic Copy.</p> <p>A correct photographic copy of an application for life insurance, reduced in size, but legible, attached to the policy, constituted a compliance with the Pennsylvania laws (Act May 11, 1881, P. L. 20) requiring insurance companies to attach a copy of the application to policies where such application is referred to and made a part of the policy.</p>

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

This was an action in ejectment to recover possession of real property in Platte county, Mo. In the jurisdictional averments of the petition it is recited that one of the plaintiffs is a resident of the state of Colorado, that the other is a resident of the state of Idaho, and that all of the defendants are residents and citizens of the state of Missouri.

This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York affirming the validity of complainant’s patent, No. 591,869, granted October 19, 1897, to W. S. Moody, for an electric transformer, and ordering an injunction and accounting.

This cause comes here on appeal from a decree dismissing a bill for infringement of complainant’s patent, No. 34,357, granted April 9, 1901, to Isaac Lowenthal, for a design for a belt.

<p>1. Banks — Deposits—Nature op Contract — What Law Governs.</p> <p>Where plaintiff, a citizen and resident of New York, deposited her money, subject to check, in the private bank of defendant’s firm in that state, defendant being then a resident of New York, and interest was agreed to be paid on the deposits in New York, the nature and character of the transaction should be determined by the laws of New York.</p> <p>2. Same — Limitations.</p> <p>Limitations do not begin to run against the recovery of a bank deposit' until demand is made for repayment.</p> <p>3. Same — Suspension op Banks.</p> <p>Suspension of payment and discontinuance of banking operations by a bank constitutes a waiver of a demand by a depositor for a repayment of the deposit, so that limitations against the recovery thereof begin to</p> <p>■ run from the date of the suspension.</p> <p>4. Same — Monet Lent.</p> <p>Money deposited in a bank in New York at interest and subject to check constitutes “money lent” to the banker within Civ. Code La. art. 3538 (3503), requiring actions for the payment of money lent to be brought within three years.</p>

<p>1. Bankruptcy — Hearing on Application por Discharge — Evidence.</p> <p>On the hearing on a petition for discharge and the specifications of objection thereto, the testimony of the bankrupt given at the first meeting of creditors is admissible, but the testimony of other witnesses taken at such time is not.</p> <p>2. Same — Irregularity in Hearing.</p> <p>It is an irregularity for a referee to take testimony on an application for discharge against which objection is filed before returning the same to the court; but where both parties appear, so that no prejudice can result, testimony so taken will not be stricken out.</p> <p>3. Same — Discharge—Obtaining Property by False Statement.</p> <p>A bankrupt who, while in the mercantile business, made a written statement to a wholesale house as a basis for credit, and on which she obtained goods on credit which were unpaid for at the time of the bankruptcy, in which statement she listed as an asset, at a net valuation of $1,400, land which she did not own and had never owned, obtained property on credit upon & materially false statement, and under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903,- c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], is not entitled to a discharge.</p>

<p>1. New Trial — Grounds—Instructions.</p> <p>The failure of the court to expressly state to the jury in its charge in an action for a personal injury that the damages recoverable for future pain and suffering must be limited to such as plaintiff is reasonably certain to endure, is not material error, such as to require the granting of a new trial, where the whole tenor of the instructions calls for such measure of damages, and where the verdict rendered is within the amount clearly recoverable, if there can be any recovery, without considering such element.</p> <p>2. Same — Newly Discovered Evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence, after the ease has been tried four times, to enable a party to produce a witness who, although he was accessible and his testimony known to be material, was not produced at either trial, merely because it was not known until after the last trial that his testimony would be favorable to the moving party.</p>

<p>At Daw. On exceptions to report of referee.</p>

<p>In Bankruptcy. On appeal from order of referee made on summary petition requiring Otto J. Nass to surrender certain property.</p>

<p>1. Federal Courts — Removal oe Cause — Citizenship—Eminent Domain.</p> <p>Where suit was brought for the condemnation of land for a railroad right of way by a Kentucky railroad corporation against a citizen of another state, the railroad company was the sole actor in the proceeding, though attempting to use the state’s power of eminent domain, and, the suit being one of a civil nature involving more than $2,000, exclusive of interest and costs, it was removable to the federal courts.</p> <p>2. Same — Statutes—Construction.</p> <p>Section 1, Acts March 3, 1887, c. 373, 24 Stat. 552, and August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509], providing that any suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, “being non-residents of that state,” held, that the phrase “being non-residents of that state” should be construed as equivalent to the words “not being citizens of that state.”</p> <p>3. Same.</p> <p>The jurisdiction of the Circuit Court of suits removed from the state court, as authorized by section 1, Acts March 3, 1887, c. 373. 24 Stat. 552, and August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], depends alone on the diverse citizenship of the parties and the amount in controversy, those parts of the statute relating to “inhabitancy” and “residents” being matters which affect the personal privilege of venue only.</p> <p>If 1. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>4. Same — Effect of Removal.</p> <p>Where preliminary proceedings were taken for the condemnation of land for a railroad right of way without notice to the nonresident owner thereof, and no notice was given to such owner until after the report of commissioners had been filed in the state court, whereupon such owner removed the proceedings to the federal courts, the suit not having been begun until process was first issued against such owner, it was entitled in the federal court to contest the complainant’s right to take the land, as well as the amount of compensation to be paid therefor.</p>

<p>1. State Courts — Removal of Cause — Further Proceedings — Injunction.</p> <p>Where a proceeding to acquire land for a railroad right of way was properly removed to the federal court after the report of commissioners had been filed in the state court, the state court having been deprived of jurisdiction by the removal proceedings, the federal court had jurisdiction to enjoin the plaintiff from proceeding further with the action in the state court, though section 720, Rev. St. [U. S. Comp. St. 1901, p. 581], provides that an injunction shall not be granted by any court of the United States to stay proceedings in a state court except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.</p> <p>j[ 1. Enjoining proceedings in state courts, see notes to Garner v. Second Nat Bank, 16 O. O. A. 90; Central Trust Co. v. Grantham, 27 O. C. A. 575.</p>

<p>In Bankruptcy. On exceptions to report of referee.</p>

<p>At Haw. Sur motion for new trial.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>Prior to June 1, 1899, the North Chicago Street Railroad Company and the West Chicago Street Railroad Company (herein called, respectively, the North Chicago Company and the West Chicago Company) operated independent systems of surface street railroads on the North and West Sides, respectively, of the city of Chicago. On June 1,1899, each of those companies executed a lease to the Chicago Union Traction Company (herein called the Union Traction Company) demising its property and franchises to that company for the full period of the charter of the respective lessors, and all extensions or renewals thereof. By the terms of these leases the Union Traction Company agreed to pay or renew all notes, bonds, and mortgages of the lessor companies, and to pay as rental to the lessors, respectively, amounts equivalent to annual dividends of 12 per cent, on the stock of the North Chicago Company, and of 6 per cent, on the stock of the West Chicago Company; such payments to be made quarterly. The lease further provided that, for the purpose of securing the performance of the obligations of the lease, the Traction Company should deposit with the Illinois Trust & Savings Bank of Chicago, as trustee, such amount of cash or security as should be agreed upon by the parties, which fund should be held subject to the conditions of a tripartite agreement of even date between the three parties, by which agreement the sum of $10,000,000 in cash, or in securities of a kind and amount to be approved by the two railroad co.mpanies, was provided to be deposited; the income of the fund to be paid to the Traction Company until default in some one obligation of the lease, dnd upon default the income from the deposit, and so much of the principal as may be necessary, to be appropriated and applied in equal and ratable payment and discharge of the debts and obligations assumed by the Traction Company. In the event that stocks of corporations should constitute part of the deposit, the trustee should vote the same in accordance with the directions of the Traction Company, and, upon request, execute a proxy to vote such stock to such person as should be designated from time to time by the Traction Company. Under that agreement there were deposited 20,000 shares of the capital stock of the North Chicago Company and 32,000 shares of the capital stock of the West Chicago Company, which shares are now held by the trustee for the purposes. of the agreement. The Union Traction Company entered into possession under the leases, and, until the receiverships hereafter mentioned, operated the roads of the two lessor companies.</p> <p>On April 22, 1903, the Guaranty Trust Company of New York brought three suits in the court below — one against the North Chicago Company upon three demand notes, dated, respectively, March 20, April 17, and April 20, 1903, for the amount in the aggregate of $563,000; one against the West Chicago Company upon three demand notes, one dated March 20, and two dated April 14, 1903, for the amount, in the aggregate, of $270,000; and the third against the Union Traction Company upon a demand note dated March 20, 1903, for $317,000. The notes upon which the North and West Chicago Companies were sued evidenced indebtedness which by the leases the Union Traction Company had assumed to pay or renew. Judgments by confession were entered in those suits on that day. Thereafter, on the same day, the Guaranty Trust Company filed its three separate judgment creditors’ bills in the court below against the three judgment debtors, respectively, containing the usual allegations of a creditors’ bill, reciting the public nature of the business carried on by the company defendant therein, describing the various actual or potential controversies alleged to exist with respect to the various franchises of the several companies, and praying for the appointment of a receiver, and, in the case of the Union Traction Company, praying for administrative relief by way of operation of the railways. In each case the judgment debtor was sole defendant. Upon the same day the three companies filed their answers to the respective bills, confessing the bills, and on the same day the court below appointed receivers in each of the suits, with authority to operate the property under the order of the court. The receivers forthwith qualified and assumed possession of the property so leased to, and in the custody of, the Union Traction Company. Hollowing the appointment of the receivers, various petitions were filed by them, setting forth in detail the various interests and rental charges to which the various defendants were subject, and reciting various controversial questions relating to the public service, public rights, and public liabilities with various corporations. No diverse parties were brought into court by these petitions, and no relief sought therein, other than the instructions of the court with respect to the administration of the property. During the receiverships the court authorized the payment of rental accruing under the various leases, and its distribution among the stockholders, respectively, of the North and West Chicago Companies, as dividends. In this way $265,722 on July 15 and October 15, 1903, were paid to the stockholders of the North Chicago Company, and $374,587.50 on May 15 and October 15, 1903, were paid to the stockholders of the West Chicago Company; these payments being made with the consent of the judgment creditor, the complainant in those bills, a part of which payment was .made by the receivers of the Union Traction Company by means of a loan made by them under the authority of the court.</p> <p>On August 15, 1903, David A. Kohn and certain others of the appellants here, as stockholders of the North Chicago Company, filed in the state circuit court of Cook county, 111., their bill in their own behalf, and in behalf of all other stockholders of that company, against the Union Traction Company, the North Chicago Company, the Illinois Trust & Savings Bank, and certain other individual defendants, setting forth the incorporation, charter, and capitalization of the several companies named, the holdings by complainants of stock in the North Chicago Company, the ownership of the road, and the leases hereinbefore stated; that the indebtedness of the North Chicago Company at the date of the lease was $2,319,000, evidenced by notes then outstanding which the Traction Company, by the lease, assumed and agreed to pay or renew ; the indebtedness of the West Chicago Company, at the date of the leases, of $1,090,000, evidenced by the notes which the Traction Company had agreed to pay or renew; alleged the deposit of securities under the tripartite agreement, the execution of the notes to the Guaranty Trust Company, as stated, and the three judgments entered thereupon — and charges that each of the three suits was begun and the judgments entered pursuant to an agreement theretofore entered into between the Guaranty Trust Company and the Union Traction Company that the proceedings should be had; that the notes upon which the judgments were entered were renewal notes executed at the request of the Union Traction Company,’ being indebtedness outstanding at the time the respective leases' were executed, and the failure of the Traction Company to hold the railroad companies harmless therefrom; alleges the insolvency of the Union Traction Company, that it was subject to be dissolved under the laws of the state of Illinois, and that judicial proceedings had already been commenced for that purpose. The bill further alleges that since the execution of the leases the officers and directors of the North and West Chicago Companies have been designated and selected by the Union Traction Company, and that until July 23, 1903, all the directors and officers of both railroad companies were officers or persons in the service of the Union Traction Company; that at a meeting of the directors of the North Chicago and West Chicago Companies on July 23, 1903, each of the directors — one at a time, resigned — the meeting being controlled by the officers of the Union Traction Company, and a new board of the companies was elected by the remaining directors, who proceeded to elect a president; that the proceedings were secret, without prior notice of the holding of the meeting to any stockholder of either - company, and that no stockholder voted, except as some of the directors may have been stockholders, and to an amount not cpnstituting a substantial minority of the shares of stock in either company; that a majority of the officers and directors so elected were not and are not stockholders in either company, but are stockholders or in the service of the Union Traction Company, and were selected by that company, prior to their election, to serve the interests of the Traction Compány. The bill then charges that, at the request and direction of the officers and attorneys of the Union Traction Company, the directors of the North Chicago and West Chicago Companies adopted a resolution authorizing the execution to the Union Traction Company of a new lease and tripartite agreement, subject to the approval of the holders of a majority of the stock of the North Chicago and West Chicago Railroad Companies, at a stockholders’ meeting to be called for that purpose, and that such amendatory agreement be executed and deposited in escrow, to be delivered to the Traction Company when approved by a majority of the stockholders of each of said companies, which special meeting was called for August 18, 1903. By this amended agreement the stocks on deposit with the Illinois Trust & Savings Bank of Chicago, as trustee under the tripartite agreement of June 1, 1899, continued to be held upon certain trusts declared in the new proposed agreement; and it is charged,with respect to the 20,000 shares of North Chicago Company stock so held, and worth $2,000,000, and the 32,000 shares of West Chicago Company stock so held, and now worth $1,600,000, which under the former leases the lessors had the right to apply toward the payment of their claim against the Union Traction Company, that by the new agreement these rights are waived; that by the proposed amendatory lease the demised property was granted during the full term of 984 years, the rental was reduced in the case of the North Chicago Company from 12 per cent, upon the capital stock to 6 per cent., and in the case of the West Chicago Company from 6 per cent, to 4 per cent., and other changes were made, stated in the bill. The bill prayed that the shares of stock so deposited with the Illinois Trust & Savings Bank might he subjected to the payment of the amount due to the North Chicago Company by the Traction Company, and that the latter company might be enjoined from voting such stock, or directing how it should be voted, upon the question of adopting the propc «-id amendatory agreements, and that the trustee and the North and West Chicago Companies, respectively, might be enjoined, from voting or permitting tne shares of stock to be voted; that a receiver be appointed of such stock, “subject, however, to said rights, if any, which it may appear that any persons or receivers may rightfully have therein”; that the custodian be restrained from delivering the amendatory agreement; that the parties be restrained from modifying or changing the lease, upon the ground that the proposed leases were ultra vires the North and West Chicago Companies, respectively. On the same day the North Chicago Company filed its petition in this suit, praying the court for an injunction restraining the parties complainant and their solicitors, the appellants here, from any interference, both with the meeting so proposed to be held, and from obtaining any writ of injunction from any other court to that end, in which petition the receivers joined. And upon that day the court below entered a restraining order and order to show cause why a temporary injunction should not issue as prayed for. The matter was continued from time to time until October 9, 1903, when the court below entered an order directing that the restraining order of August 15, 1903, be continued, and “made a permanent order of injunction, to prohibit and prohibiting each and every of the respondents, according to its terms, until the final decree of the court upon a full hearing of said petition.” The order so continued in force is as follows:</p> <p>“It is ordered that the said respondents mentioned in said petitions, D. A. Kohn, James J. Townsend, Thomas A. Moran, Levy Mayer, Isaac H. Mayer, Carl Meyer, W. J. Buckley, and Simon Straus, and all other stockholders of the said defendant company, their attorneys, solicitors, agents, representatives, and servants, be, and they hereby are, restrained, until the hearing of .the motion for the temporary injunction upon notice as hereinafter mentioned, and 1 until the further order of this court, from in any way interfering with or preventing any other stockholder or stockholders of defendant company, or their proxy or proxies, from voting at the special meeting of the stockholders of defendant company referred to in said petitions, called by said defendant company to be held on the 18th day of August, 1903, at 2 o’clock p. m., or on such other day, if any, as may be appointed for an adjourned meeting by the stockholders attending, pursuant to such call, on the question of the approval or disapproval of each of said amendatory agreements in said petitions referred to, or from preventing or interfering with such defendant company in holding such meeting, or in permitting at such meeting each stockholder of record of said defendant company, present in person or by proxy, to vote upon the question of the approval or disapproval of each of said amendatory agreements, or in certifying the result of such vote to this court under its corporate seal, as contemplated and provided in and by the order of this court entered herein on July 28,1903, and particularly from instituting or commencing, prosecuting, or carrying on any suits or proceedings in any other court, or from suing out or enforcing any writs of injunction from any other court, to prevent or interfere with any stockholder or stockholders of this defendant company, or his or their proxy or proxies, from or in voting at said meeting so to be held on the 18th day of August, 1903, or on such other day, if any, as may be appointed for an adjourned meeting by the stockholders attending, pursuant to the call of such meeting, upon the question of the approval or disapproval of said amendatory agreements, or either of them, or to enjoin or restrain this defendant from holding said meeting, or from permitting each stockholder of record of said defendant company, present in person or by proxy, to vote at such meeting upon the question of the approval or disapproval of each of said amendatory agreements, and certifying the result of such vote to this court under its corporate seal; and that they also be in like manner restrained from in any way interfering with the proper conduct of such meeting, or the vote of any stockholder or stockholders, or their authorized proxy or proxies, at such meeting, or with the conduct of such meeting as prescribed and directed by the said order of this court above mentioned, or with the carrying out or into effect of any vote or action taken by said stockholders at said meeting, including the delivery of said amendatory agreements, if so approved, and that the hearing of the said motion for a temporary injunction be, and the same is hereby, set down for Monday, August 17. 1903, at 10:30 o’clock a. m.”</p> <p>On July 28, 1903, petitions were filed in the three creditors’ suits by the respective corporations defendants, setting forth the proposed modifications of the leases as herein stated, and praying that the receivers might be instructed to join in such modification and to execute the new agreements; and on the same day the receivers filed their petitions, stating the filing of the petitions by the respective defendants, and asking for instructions. No persons were made parties to those petitions, nor was any process issued thereon; but on August 14, 1903, upon the petition of the receivers of the Union Traction Company, the court authorized the receivers to direct the issuance of proxies to vote the stock held by the trustee to the persons who had been selected by the Union Traction Company.</p> <p>Under these circumstances the stockholders’ meeting was held on August 18, 1903, and the action of the boards of directors of the several companies ratified and confirmed; and the court below on the same day directed the receivers to approve of and join in the execution of the new leases and new tripartite agreement.</p> <p>From the order of October 9, 1903, this appeal is taken.</p>

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>This is an action for damages for personal injuries sustained by the defendant in error while working in one of the mines of the plaintiff in error. It is alleged in the complaint that the plaintiff (defendant in error) was at the time of his injury, on February 13, 1902, and for some time prior thereto had been, in the employ of the defendant company in the capacity of miner and machineman; that at the time of the injury he was working as machineman in the west end of the Bodero stope of the defendant’s mine, and on the floor thereof next to the top floor; that the ore and rock in the mine are loose and liable to cave,- and more particularly in the roof of the stopes; that it was therefore necessary for the defendant, in working the mine, to cause timbers and lagging to be placed therein, and in the roof of the stopes, from time to time, as the work progressed, to make the same safe, and to inspect or cause to be inspected the roof of the stopes and places in and about the mine, and that it “was the duty of the said defendant miring company to cause the said place where this plaintiff was engaged, ordered, and directed to be and work to be safe, and to have the roof of said stope timbered so as to make the same safe; that, at the point where this plaintiff was engaged as aforesaid, the said defendant had theretofore excavated a large chamber, more than 40 feet in length by 10 feet in width, the roof thereof being then and there 10 feet and more from the floor of said stope, which said roof, owing to the character and condition of the rock therein, became dangerous and unsafe, and it became and was the duty of the said defendant to cause the same to be timbered and braced so that the said roof could not fall, and to inspect said roof in order to ascertain and prevent rocks and ore from falling from the roof thereof.” It is further alleged that the defendant company put the plaintiff to work at the place indicated without adequately securing the roof of the stope, and without providing any protection for the plaintiff, when, without any fault or negligence on his part, and solely on account of the negligence and carelessness of the defendant, a large mass of earth, ore, and rock fell from the roof of said stope, over, against, and upon the plaintiff, and inflicted upon him serious injury, as a result of which he is, and will continue to be, lame and crippled, and unable to perform any work calling for the exercise of physical exertion.</p> <p>The defendant, in its amended answer, denied that the ore and rock in the mine were loose or liable to cave; denied that the roof of the stope was or had become dangerous or unsafe, or that it had been permitted to become dangerous or unsafe through any neglect on the part of the defendant; denied that a large mass of earth, ore, or rock fell from the roof of the stope and injured the plaintiff. And for a further defense to the action the defendant alleged, among other things, that at the time and place therein stated the plaintiff was in the employ of the defendant as a miner, and was then operating a drill, and that one J. M. Davy was the shift boss of the men engaged in the work, and was a fellow servant of the plaintiff; that the face of the stope runs about two feet in advance of the timbers which were placed in the excavation to support the roof and walls, and that the machine that the plaintiff was using was placed under the timbers, which the defendant had caused to be placed there as fast as could be done in advancing the work; that the said place was perfectly safe and secure, and that no loose rock existed in the roof or walls; that the plaintiff had been directed to put his drill against the upper face of the stope, in solid rock, so as to make a hole that would be of service in extending the stope; that lower down in the face there was some rock that had been loosened by previous work, which was intended to be barred down, and was not to be drilled; that the plaintiff, instead of doing as directed, and as a miner should have done, set his drill rod against said loosened rock, though admonished by his associate miners not to do so, and proceeded to drill into the same; that such drillwork had the effect of further loosening the rock, and finally to dislodge it, and that it fell towards the plaintiff, but without injury; that no rock whatever fell from the roof of the stope, and that the rock and debris that caused the alleged injury to the plaintiff was the result of his disobedience of the orders of the foreman, and in no respect was it the result of want of care on the part of the defendant, or of the foreman in charge; that the timbering in the stope at the time was sound, safe, and perfect; and that, if the plaintiff had exercised reasonable care, no accident could have occurred. It was further alleged that the plaintiff knew at the time of the alleged injury of the condition of said stope, and the danger, if any, and assumed the risk thereof. It was also alleged that the injury to plaintiff was not incurred by reason of the matters stated in the complaint, but in consequence of a fall which occurred to the plaintiff on his way home from the mine.</p> <p>The plaintiff testified that' at the time he was injured he was working in a chamber next to the top in the stope; that he was set to work in that chamber on the morning of the accident by John M. Davy, the shift boss or foreman. The plaintiff had worked the day previous two floors below in the stope, but on the morning of the accident the shift boss had set him to work in this particular chamber, and showed him where to drill. He testified that the rock in front of him was solid; that he knew the face where he was drilling was solid and good. To the left there were two sets of timbers out, and his testimony was to the effect that the rock that came down, and injured him came from this untimbered section.</p> <p>W. E. Wear, a mucker, who was working about 15 feet from the plaintiff at the time of the accident, testified that he saw the shift boss when he came in that morning and told the plaintiff where to put in the holes. The shift boss pointed out the places where the plaintiff was to put in the holes. He testified further that the ground seemed to be in fair condition, as far as he noticed; that the plaintiff set up his machine, and went on drilling in' the face of the stope; that at about 10 or half past 10 in the morning he heard some falling ground. He saw the ground coming down. He saw the plaintiff fall, and his light was knocked out, but his machine still kept running. After the accident the witness went up on the next floor, and found that ore had been worked back too far before timbers had been put in; that it was peculiarly dangerous, from the fact that there were no stulls or sprags running from the timbers up to hold the ground in case it should slough or become air-slaked; that there should have been a sprag or a short stull put up from the timbers to the ground, to steady and support it. It was the duty of the shift boss to see that it was done. It was no part of the duty of the machinemen to see whether it was done or not. The machinemen were not supposed to be, working under that ground. The witness was questioned in his direct examination in respect to the work that was being done in this part of the mine at the time of the accident. The questions and answers were as follows: “Q. In order to do that work In a proper way, should this ground up here have been inspected before a man was put in there? A. It should have been; yes. sir. Q. Whose duty was it to do that? A. It was the shift boss’ duty. Q. If he had put these timbers in here, or this square set in here, that accident would not have happened to him? A. Oh, no; it could not have happened, because the rock could not have fallen. Q. In the absence of that, if they had put these sprags in, and held that up, that injury could not have happened? A. I don’t think it could. Q. If this ore had not been worked out up here too close to there, would that probably have happened? A. No; because it would have rested over on these timbers. There would have been nothing to come down.” This evidence tended to show that the accident was caused by rock falling from above and to the left of where the plaintiff was working, and from ground unsupported by timbers.</p> <p>The testimony on the part of the defendant tended to show that the stope where the plaintiff was set to work was completely timbered; that there was no ground near to the plaintiff that was not timbered at the time he was hurt; that there was a crack in the breast of the stope upon which he was set to work; that above this crack the stope was solid, but, below it, it was shattered and had settled down; that the plaintiff started to drill below the crack in the loose, shattered ground; that a fellow workman told plaintiff he had better bar that ground down; that he did not follow this advice, and the loose ground came down and rolled over, falling from the face of the stope in front of the plaintiff. The defendant also introduced testimony tending to show that plaintiff was not seriously hurt, but continued his work during the day; that on the next day he admitted that in returning home he fell while coming down a hill, and hurt his leg over again.</p> <p>The jury rendered a verdict in favor of the plaintiff, and assessed his damages at ?9,000. A judgment having been entered upon the verdict, the case is brought here by the defendant upon a writ of error.</p>

■ Appeal from the Circuit Court of the United States for the Western District of Kentucky. The Evening Post Company, one of the appellees above named, was organized as a corporation under the laws of Kentucky with a capital stoc-k of $60,000, divided into 600 shares, and began its corporate life on May 1, 1878. By the terms of its charter the duration of its existence was limited to the period of 25 years, and terminated May 1, 1903.

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

<p>a. Trial — Evidence—Withdrawal—Curing Error.</p> <p>In an action for breach of contract the erroneous admission of irrelevant evidence respecting certain profits sued for was cured by a positive instruction directing the jury not to consider it.</p> <p>2. Sales — Manufactured Articles — Breach of Contract — Profits—Dam-</p> <p>ages.</p> <p>Where,' in an action for breach of a contract tp manufacture and sell certain machinery, plaintiff showed that the average profits made during the 16 months in which the contract was performed was $911 per month, a verdict allowing plaintiff profits at that rate during the 8 remaining months of the contract period after breach was not objectionable on the ground that such profits were remote and speculative.</p> <p>3. Same — New Trial — Instructions—Noncompliance.</p> <p>t. Where a verdict on the whole was just, and certain instructions as to the measure of damages given by the court, and apparently disregarded by the jury, were erroneous, the court was not bound to grant a new trial on the ground that the jury disregarded such instructions.</p> <p>4. Same — Review.</p> <p>. Neither the verdict of a jury nor the exercise of the trial court’s discretion in refusing a new trial may be reviewed on appeal to the Circuit Court of Appeals unless the court’s discretion in denying a new trial was abused.</p> <p>II2. Contracts for sale of articles to be produced or manufactured, see note to Star Brewery Co. v. Horst, 58 C. C. A. 363.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the District of Washington.</p> <p>Appellants take this appeal from an order made by the District Court discharging appellee from custody upon habeas corpus. Her petition for the writ of habeas corpus is very lengthy, but the essential points therein may be briefly stated. In said petition it is alleged that Alexander Fachant was born in the republic of France, “but is now, and during all the times herein mentioned was, a naturalized citizen of the United States of America, and has been domiciled in the United States of America for about eighteen years last past, and is now, and during all the times herein mentioned was, a bona fide citizen and resident of the district of Washington”; that in April, 1903, at Paris, this petitioner,' at the request of Alexander Fachant, entered into a contract of marriage with him, and that she agreed with him to come to the United States for the purpose of the consummation of such marriage relation; that upon her arrival in the city of Walla Walla, Wash., the said Alexander Fachant refused to make her his lawful wife; that she thereafter brought suit against said Fachant to recover $15,000 damages for the breach o'f said marriage contract; that said Alexander Fachant made default, but that for reasons stated she had been unable to have a jury trial in order to assess the damages to which she was entitled. It then sets forth the facts in regard to her arrest for the purpose of being deported under the immigration laws of the United States, and alleges that her deportation would be “in violation of the existing treaties between the United States of America and the republic of France,” etc.; and she prays upon the hearing of her petition to be released from custody and restored to her liberty. The order of discharge, as made by the court, after a preliminary statement of the appearance of the respective parties, states that appellants herein “having made return ore tenus on behalf of the said respondents, and each of them, to the effect that the said Blanche Masclez had been held and retained in custody by the said Charles B. Hopkins, United States Marshal for the District of Washington, as a detained witness in the case of the United States vs. Alexander Fachant, pending in the District Court of the United States for the District of Washington, Northern Division, in pursuance of a commitment duly issued by United States Commissioner H. B. Strong, and that the said Blanche Masclez had been held and was being held by the respondents, Thomas M. Fisher and J. H. Sargent, immigration officers of the United States, and the Mother Superior of the House of Good Shepherd, as an alien immigrant unlawfully within the United States, and as such subject to deportation to the republic of France, the country whence she came, and under and by virtue of a certain warrant of deportation duly issued by the Secretary of the Treasury of the United States, on the 28th day of May, 1903, directed to the said Thomas M. Fisher, Chinese and immigrant inspector, wherein it is found by the said Secretary of the Treasury that the said Blanche Masclez is an alien immigrant, who landed in the United States at the port of New York, N. Y., on the 2d day of May, 1903, and came into the United States from the republic of France, contrary to the immigration laws of the United States, and commanding him, the said Thomas M. Fisher, as such immigrant; inspector, to take into his custody the said Blanche Masclez as such alien immigrant, and return her to the country whence she came, which said warrant of deportation is still in force; and said respondents, in making return to the said writ of habeas corpus, having denied the allegations set forth in said petition herein as to the rights of the said Blanche Masclez to be and remain in the United States. And the court having taken into consideration the evidence admitted upon the trial of the case of the United States vs. Alexander Fachant, together with the fact of the marriage of the said Blanche Masclez to the said Alexander Fachant subsequent to the issuance of the writ herein, and being fully advised in the premises, and having found from a consideration of all the foregoing facts that the said Blanche Masclez is entitled to be and remain in the United States, and therefore not subject to deportation under the writ of deportation heretofore issued by the Secretary of the Treasury of the United States, but entitled to her full liberty: Now, therefore, it is hereby ordered that the said Blanche Masclez, petitioner above named, be, and she hereby is, discharged from the custody of the respondents herein, and restored to her full liberty.”</p>

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

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, against plaintiff in error, who was defendant below. The judgment was entered upon a verdict directed by the court. The action was upon a bill of lading, to recover for injury to certain straw braid damaged by the carelessness of defendant during transportation from China to New York.

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

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

<p>Appeal from the District Court of the United States for the District of Oregon.</p> <p>Appellant is engaged in the manufacture and sale of flour, having its principal office at Portland, Or., and a branch office at Hong Kong, China. It appears that the flour shipped to Hong Kong by appellant is handled by a Chinese syndicate; that the sales made are confined to the company’s agent at Hong Kong, through whom the orders are made; that the members of the syndicate receive the flour in certain definite proportions, designated by shares —one firm having three shares, another two, and the third one; that on August 29,1901, appellant received from its Hong Kong agent a cable confirmation of a contract for an amount of flour to be intended for the members of the syndicate, with a request that the order be confirmed, which was done, according to the shares of each. In December, 1901, appellant shipped with the Portland & Asiatic Steamship Company, for carriage on the Knight Companion, a British vessel operated by said company, a large quantity of flour. One lot, intended for Cornes & Co., was billed to Kobe, Japan, and the others, intended for different purchasers, were billed to Hong Kong, China. The goods in each case were shipped under a bill of lading issued by the carrier, wherein it was stipulated that the flour shipped was to be delivered “at the vessel’s tackle unto the Portland Flouring Mills Company, or to his or their assigns. Freight on same as per margin to be collected in TJ. S. gold coin or its equivalent. The several freight and primages to be considered as earned, steamer or goods lost or not lost at any stage of the entire transit.” On the margin of the bills of lading were the letters “N’fy” or “Notify,” followed by the name of the firm on whose account the shipment is alleged to have been made. These bills of lading were in each case accepted by appellant, who was therein named both as consignor and consignee. Policies of insurance in the name of appellant were taken out at the invoice price and 40 per cent., which included freight, and drafts drawn at 60 days’ sight on the members of the syndicate in the proportion of their shares for the selling price of the flour plus cost of insurance. These policies, one for each member of the syndicate, although in the name of appellant, and the several bills of lading, were indorsed in blank, so that they were available to the holder. The drafts, with the policies and bills of lading, so indorsed, were delivered to Ladd & Tilton, bankers of appellant, and the amount placed to the latter’s credit.</p> <p>The steamship Knight Companion left Portland, Or., on the 31st day of December, 1901, and reached the coast of Japan, and was there stranded on the 2d day of February, 1902, and abandoned as a total loss by the steamship company and the several insurance companies interested. One of these insurance companies was the appellee, which had insured the steamship company for the freight to be earned by the voyage. Appellee settled with the steamship company, paying its claim in full," and the other insurance companies settled with the holders of their policies, and the insurance companies thereupon divided among themselves certain moneys secured from the salvage of the cargo; the insurers of appellant’s shipment receiving 45,205 yen, approximately $22,500. Appellant’s insurers paid the face of their policies, which exceeded the selling price of appellant’s goods. On the payment of the steamship company’s claims in full for freight, appellee became subrogated to the steamship company’s rights, and in addition thereto took from the steamship company an assignment of its claim for the freight, and brought this libel in personam for the recovery of the same. The court rendered a decree in favor of appellee (124 Fed. 855), and from that decree the appeal herein is taken.</p>

<p>1. Insurance — State Laws — Extbaterbitobial Operation — Liability of Agents.</p> <p>Pa. Act May 1, 1876 (P. L. 66), § 48, declaring that the agent of any insurance company of any other state or government which does not comply with the laws of Pennsylvania shall be personally liable on all contracts of insurance made by or through him, directly or indirectly, for or on behalf of the company, applies only to contracts of insurance on property in Pennsylvania.</p> <p>2. Same — Policy Limitations.</p> <p>A provision of a marine policy that all claims thereunder should be void unless prosecuted within 12 months from the date of the disaster was applicable to a suit against insurance brokers issuing certain policies on behalf of foreign companies which had not complied with the laws of Pennsylvania, under Pa. Act May 1, 1876 (P. L. 66), § 48, declaring that any agent of a foreign insurance company which has not complied with Pennsylvania laws shall be personally liable “on all contracts of insurance” made by or through him on behalf of any such company.</p> <p>IT 2. Conditions in insurance policy as to time for bringing suit, see notes to Steel v. Phcenix Ins. Co., 2 C. C. A. 473; Rogers v. Home Ins. Co., 35 C. C. A. 404.</p>

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

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

This is a suit originally brought in the court of common pleas for Wyandotte county, Ohio, by Meek against the other appellees and the appellants, for the specific performance of a contract in writing for the sale to him by the said John A. Mathews and Rumina E., Anna, and David Ayres of a parcel of land in Upper- Sandusky, in said county.

<p>1. Bankbuptcy — Action op Tboveb against Receiver- Jurisdiction op State Coubt.</p> <p>A state court has jurisdiction of an action of trover brought against a trustee or receiver in bankruptcy to recover the value of property alleged to have been converted by him as a part of the assets of the estate.</p> <p>T1. See Bankruptcy, vol. 6, Cent. Dig. § 414.</p>

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

<p>1. Malicious Prosecution — Evidence—Malice—Probable Cause.</p> <p>Defendant’s superintendent, on being led to apprehend that plaintiff had tampered with certain accounts in her charge, sought the assistance of another of defendant’s superintendents; and they, on examining the books, found what they supposed to be a considerable deficit. Defendant company was then notified, and sent a supervising inspector, who, after making an examination, confirmed the result previously arrived at, when, by defendant’s direction, the superintendents submitted the books and papers to its counsel, and he, after examining them, advised plaintiff’s prosecution. Held, that plaintiff’s acquittal and proof of such facts were insufficient to establish a cause of action for malicious prosecution; such evidence being insufficient to establish either malice or want of probable cause.</p>

<p>In Error to 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 Northern Division of the District of Washington.</p>

<p>L Patents — Infringement—Garment Fastener.</p> <p>The Steel patent, No. 652,407, for a garment fastener, designed to hold down the skirt band and belt so as to give the waist a downward curve in front, and which, as described, consists of a combination of hooks to hold the band and belt, with' a shank fitted to be attached to the fastening devices of a corset, was not anticipated, and discloses invention, but is not infringed by a device otherwise similar, but which is fastened to the fabric of the corset by means of a safety pin; such device being substantially shown in the prior art</p>

<p>1. Patents — Invention—Elevator Guards.</p> <p>The Spencer patent, No. 648,309, for an elevator guard, consisting of a board or riser extending downward from the doorsill of an elevator from 12 to 18 inches, to prevent the feet of persons entering from being caught between the bottom of the elevator and the floor, is void for lack of patentable invention.</p>

<p>1. Patents — Validity and Infringement — Abdominal Pad and Stocking Supporter.</p> <p>The Young patent, No. 638,540, for a combined abdominal pad and stocking supporter, was not anticipated, discloses patentable invention, and is not invalid for prior use; also held infringed.</p>

On rule to show cause why defendants should not be adjudged in contempt for violation of injunction against infringement of a patent.

<p>1. Patents — Patentable Novelty — Stone Sawing Machine.</p> <p>An improvement in mechanism for sawing stone by which the saw is. moved against the stone, which remains at rest during the operation, instead of being fed to the saw as in machines of the prior art, discloses patentable novelty and utility.</p> <p>2. Same — Construction—Infringement.</p> <p>The Williams patent; No. 429,874, for a stone sawing machine, was not anticipated, and discloses patentable invention. Claims 2 and 3, construed in the light of the specification and drawings and the requirement of means “for feeding the saw blade up to its work,” held to require as an element a proportionate feed, with respect to the speed of the saw during the stroke. Claims 1, 2, and 3 also held infringed.</p>

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

<p>On Motion for Preliminary Injunction to Restrain Infringement of Thompson Patent No. 363,186, of May 17, 1887.</p>

<p>1. Supersedeas — Discretion.</p> <p>The power to grant a supersedeas is discretionary, to be exercised only where it is manifest that extraordinary reasons justify it.</p> <p>2. Patents — Infringement—Appeal—Supersedeas.</p> <p>Where, in a suit for infringement of a patent, complainants, having succeeded on all the proofs in establishing the merits of their bill, were entitled to an interlocutory judgment, and it also appeared that before a hearing .could be had on an appeal the patent would have expired, a supersedeas would not be granted.</p>

<p>Action by H. S. Wright against Joseph C. Stewart and others. Judgment for plaintiff.</p>

<p>1. Bankruptcy — Partnership—Firm or Individual Debts.</p> <p>Where, a short time before a partnership and its members were adjudged bankrupts, a dissolution was agreed to by which one partner took the property of the firm and assumed its debts, consisting chiefly of notes given to a bank, firm creditors who refused to accept the novation cannot set up the claim that the bank consented to it and became the individual creditor of the purchasing partner, and at the same time repudiate the transaction so far as relates to a transfer of the firm property to such partner which was the consideration for his agreement to assume the debts.</p> <p>2. Same — Provable Debts — Right op Ceeditors to Plead Usury.</p> <p>Under the Iowa statute (Code 1897, § 3041) which makes a usurious contract voidable only to the extent of the usurious interest, as construed by the Supreme Court of the state, the defense of usury can be pleaded only by the borrower, and under such rule, which is controlling upon the federal courts as to Iowa contracts, creditors of a bankrupt cannot set up the defense of usury against the claim of another creditor.</p> <p>3. Same — Costs of Contesting Claim.</p> <p>Where the costs on the contest of a claim grew out of a controversy between creditors, entirely carried on for the purpose of controlling the election of trustee, they will not be allowed from the estate.</p>

<p>L Railroads — Forfeiture of Lease — Effect of Appointment of Receivers for Lessee.</p> <p>Receivers appointed for a lessee of railroad property have a reasonable time after their appointment in which to determine whether or not they will assume the lease, and where, in such case, formal action was not taken by the lessor company until after their appointment to declare a forfeiture because of a default in the payment of rent which matured prior to the receivership,- and within a few days after the expiration of the time for making such payment as fixed in the lessor’s notice it was made by the receivers, and received and retained by tbe lessor, the court of which the receivers are officers will not enforce the forfeiture on petition of the lessor.</p> <p>2. Landlord and Tenant — Forfeiture of Lease — Equity Jurisdiction.</p> <p>Where a tenant is in possession, equity has no jurisdiction to enforce a forfeiture of a lease, the lessor having an adequate remedy by ejectment. •</p> <p>8. Same — Right to Enforce Forfeiture.</p> <p>Forfeitures not being favored by courts, either of law or equity, the requirements of a lease must be strictly followed by the lessor before a forfeiture will be enforced against the lessee.</p> <p>4. Same — Railroad Lease.</p> <p>A lease of railroad property provided that in part payment of the rental the lessee should pay semiannual dividends directly to the stockholders of the lessor company, which was required to declare such dividends in advance of each payment, and to furnish the lessee with a list of the stockholders. This requirement had not been observed, the payments having been made to the lessor company which distributed the same. Default was made in one of such payments and correspondence ensued in which the lessee endeavored to obtain further time, and certain stockholders stated their desire not to be insistent, and at this time receivers were appointed for the lessee. A resolution was then passed by the lessor’s stockholders declaring a forfeiture of the lease, and notice was given the lessee and receivers as provided by the lease requiring the payment to be made within 30 days, otherwise the lease to stand annulled. Eleven days after the expiration of such time the payment was made by the receivers, and distributed among the lessor’s stockholders, who retained the same. The receivers had also made other payments of interest which applied on the rental. Helé, that the court would not enforce a forfeiture, and require its receivers to surrender the property, for the reason, among others, that no dividend had been declared and list furnished, which was a substantial condition precedent to forfeiture imposed by the lease that had not been waived by the lessee.</p> <p>IF 3. See LaudJo'-d and Tenant, vol. 32, Cent. Dig. § 337,</p>

<p>On Rule for New Trial.</p>

<p>1. Federal Courts — Appeal—Reversal—Question oe Fact — Statutes—Application.</p> <p>Rev. St. § 1011 [U. S. Comp. St. 1901, p. 715], providing that there shall be no reversal in the Supreme Court or any Circuit Court on a writ of error for any error of fact, is applicable to the Circuit Court of Appeals.</p> <p>2. Same — Trial to Court — General Finding — Dismissal oe Complaint — Review.</p> <p>Under Rev. St § 649 [U. S. Comp. St. 1901, p. 525], providing that the finding of the court on the facts, which may be either general or special, shall have the same effect as the verdict of a jury, and section 700 [U. S. Comp. St. 1901, p. 570], declaring that the rulings of the court in the progress of the trial of a cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the Supreme Court on a writ of error or on appeal, and when the finding is special the review may extend to the sufficiency of the facts found to support the judgment, where a motion to dismiss the complaint was denied at the close of the evidence in an action tried before the court without a jury, the correctness of such ruling was reviewable on exceptions, without a special finding of facts.</p> <p>3. Same — General Yerdict — Review.</p> <p>Where a general verdict is rendered, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions or as may arise on the pleadings.</p> <p>4. Same — Bill oe Exceptions.</p> <p>Where a case is tried to the court without a jury, a bill of exceptions cannot be used to bring up the entire testimony for review.</p> <p>5. Same — Questions oe Law.</p> <p>Where parties to a suit tried to the court without a jury desired a review of the law involved in the case, a special verdict raising the legal propositions must be procured, or propositions of law must be presented and ruled on by the trial judge.</p> <p>6. Same — Objections to Evidence — Propositions oe Law — Rulings.</p> <p>Objections to the admission or exclusion of evidence, or to the court’s rulings on propositions of law, in a case tried to the court without a jury, must appear by bill of exceptions in order to .be reviewed.</p> <p>7. Same — Findings—Conclusiveness.</p> <p>Under Rev. St. § 1011 [U. S. Comp. St. 1901, p. 715], providing that there shall be no reversal for any error of fact, the sufficiency of the evidence to support the findings of the court in an action tried without a jury cannot be considered by the appellate court, whether such findings are general or special.</p> <p>8. Same — Verdict—Conclusiveness.</p> <p>A general verdict which may include mixed questions of law and fact is conclusive as to both, except so far as they may be saved by some exceptions which the party has taken to the ruling of the court on questions of law.</p> <p>9. Same — Special Verdict.</p> <p>Where a special verdict is rendered, the defeated party is entitled to review the question whether the facts thus found required the judgment entered.</p> <p>10. Same.</p> <p>Errors alleged in the findings of the court on a trial without a jury are not subject to revision by the Circuit Court of Appeals, that court being limited in that connection to the question whether there is any evidence on which such findings could be made.</p>

<p>L Indemnity Insurance — Defenses—Waiver.</p> <p>Plaintiff, after having been sued for injuries to its servant, notified defendant indemnity company, by which plaintiff was insured, thereof, and the latter, after having examined the claim, advised settlement, but denied liability on the ground that the injury was caused by plaintiff’s breach of a statutory obligation within an exemption from liability contained in the policy. Defendant, however, agreed that its attorney should defend the suit, but plaintiff employed other attorneys, and, without relying on the opinion of defendant’s counsel, settled the claim. Held, that defendant was not liable to reimburse plaintiff for the amount of the settlement, on the ground of an express or implied promise.</p> <p>2. Mines and Mining — Injuries to Miners — Statutes—Contributory Negligence.</p> <p>Where a miner was injured by reason of the mine owner’s willful failure to maintain an open passageway around the landing place at the bottom of the shaft, as required by 4 Starr & C. Ann. St. 1902, pp. 845, 864, c. 93, §§ 2, 33, declaring that, for any injury occasioned by any willful violation of the act or willful failure to comply with its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby, the contributory negligence of such miner was no defense.</p> <p>3. Same — New Mines.</p> <p>Where, long prior to an injury to a miner who was struck by a descending cage in a shaft, the owner of the mine had complied with 4 Starr & C. Ann. St. 1902, p. 845, c. 93, § 2b, requiring a passageway to be constructed 14 feet wide around the bottom of the shaft, but, by reason of a cave-in, the passage had become blocked and obstructed so that a man could get through the passageway only by crawling over the rock and débris, and then by squeezing through a narrow passage, which condition existed for about six weeks before the injury, whereas the passage might have been cleared in two or three days’ time, it was no defense to an action for injuries under the statute that the mine was in the early stages of development, as to which the statute ought not to apply.</p> <p>1T 2. See Master and Servant, vol. 34, Cent. Dig. §§ 670, 671.</p> <p>4. Same — Policy—Construction.</p> <p>An indemnity policy providing that insurer should not be liable for any loss or liability for injuries occasioned by the failure of insured to observe any statute affecting the safety of persons was not repugnant to a preceding general statement of the policy that insurer agreed to indemnify insured against loss from common-law or statutory liability to servants, etc.</p> <p>5. Same — Waiver.</p> <p>Evidence that the general agent of an indemnity company insuring plaintiff against loss by injuries to employes was informed that plaintiff was engaged in developing a new mine, and that it was not in full operation, but was not advised that the mine was being operated in Violation of a statute of the state requiring a safe and commodious passageway around the bottom of the shaft, or that the passage constructed was then obstructed by a cave-in, was insufficient to establish a waiver of a provision in the policy exempting the insurer from liability for injuries caused by a failure of plaintiff to observe the statutory requirements.</p>

<p>1. Bill of Discovert — Jurisdiction—Adequate Remedy at Law.</p> <p>A federal court of equity will not entertain a bill of discovery, the sole purpose of which is to ascertain the names of alleged owners of stock of a corporation against whom complainant desires to bring actions for the collection of an assessment, where the bill shows that defendants, one of «whom is responsible, are also liable for such assessment, since complainant not only has an adequate remedy at law for the collection of the assessment, but, under Rev. St. §§ 858, 724 [U. S. Comp. St. 1901, pp. 659, 583], may call defendants as witnesses in such action and require them to produce books and papers.</p>

<p>In Equity. On plea in bar to the jurisdiction of the court.</p> <p>On the 8th day of January, 1902, complainant and James L. Blair entered into a contract of insurance upon the life of said James L. Blair. This contract, among others, contains the following stipulations and agreements of parties:</p> <p>“The Mutual Life Insurance Company of New York in consideration of the application for this policy, which is hereby made a part of this contract, insures the life of James L. Blair of Kirkwood, in the County of St. Louis, state of Missouri, hereinafter known as the insured, in the sum of two hundred thousand dollars, for the benefit of his wife, Apolline M. Blair, the beneficiary. Upon acceptance at the head office of the company in the city of New York of satisfactory proofs of the death of said insured during the continuance of this policy, and on the surrender of this policy at said office, the said insurance will be adjusted in instalments, without interest, by the issuance of an annuity contract in lieu hereof as hereinafter provided.”</p> <p>Under the “provisions, requirements and benefits,” set forth in the contract, there is found the following stipulation as to the annuity contract:</p> <p>“Annuity Contract Upon the surrender of this policy after acceptance by the company of satisfactory proofs of the death of the insured the company will issue a nonpartieipating annuity contract, the single premium for which shall be entered in the company’s books as a death claim under this policy. The said annuity contract shall provide as follows:</p> <p>“(a) If the beneficiary be living at the date of said annuity contract, the company will pay to the beneficiary on such date a first instalment equal to five per cent, of the face amount of this policy, and thereafter on each anniversary of said date an instalment of like amount without interest, until twenty such instalments shall have been paid, and furthermore, the company will continue the payment of such annuity in like instalments throughout the remaining lifetime of said beneficiary.</p> <p>“Should the beneficiary die during the continuance of said annuity contract and before the completed payment of said twenty annual instalments, the company will pay the remainder thereof, as they become due, to the executors or administrators of the insured.</p> <p>“(b) If the beneficiary be not living at the date of said annuity contract, the company will pay twenty instalments only, as above described, to the executors or administrators of the insured.”</p> <p>Thereafter, by agreement of the parties, the following modification of the terms of the contract was indorsed upon the policy:</p> <p>“By mutual consent and upon the request of all the parties to this contract it is understood and agreed that in the event of the death of the beneficiary subsequent to the death of the insured, and prior to the completion of the payment of the twenty annual instalments, the remainder of said instalments shall be paid when due to the insured’s children, Percy A. and Francis P. Blair, share and share alike, or the survivor of them. If neither survive, then to insured’s executors, administrators or assigns. A. Klamroth, Assistant Secretary.”</p> <p>Thereafter, and on the 5th day of November, 1903, complainant filed its bill of complaint in this court against the assured, his wife, Apolline M. Blair, and his two sons, Percy A. Blair and Francis P. Blair, beneficiaries under the terms and modifications of the contract, for the purpose of obtaining a decree rescinding the contract, and directing its cancellation and return to complainant upon the grounds of fraudulent representations by assured in the procurement of the contract, and concealment of crimes theretofore by him committed, averred to be material to the risk incurred by complainant in the issuance of the contract.</p> <p>The voluntary appearance of James L. Blair and Apolline M. Blair, his wife, was entered at the December, 1903, rules, and on January 4, 1904, a guardian ad litem was appointed for Percy A. and Francis P. Blair, they being minors. On the 16th day of January, 1904, defendant James L. Blair died testate, and on February 3d thereafter, in pursuance of the stipulation of the parties, an order of revivor was entered, and the executor of the estate of assured, theretofore duly appointed and qualified, entered his appearance. On the 4th- day of April, by leave of court, complainant filed its substituted bill of complaint, and defendant Apolline M. Blair withdrew her demurrer filed to the original bill, and all defendants were given until May rules to plead to the substituted bill of complaint At the May rules, defendant Apolline M. Blair, widow, and John F. Lee, executor of the estate of James L. Blair, filed their plea in due form, setting forth the death of the assured, and the bringing in the state court by the widow an action at law to recover the sum of $10,000 — the first installment alleged to be due and payable under the terms of the contract — and further alleging therein a compliance with all the terms and conditions of the policy requisite to be performed by the beneficiaries therein, the removal of that action by complainant herein (defendant therein) into this court, and praying an order dismissing the substituted bill of complaint, for that, by reason of the subsequent death of assured and the institution of the action at law, there has accrued and is now available to complainant a plain, adequate, and complete remedy at law by way of defense in such action. This plea was by complainant set down for hearing on the 3d day of this month, and has been fully presented to the court in oral argument and upon briefs filed, and taken and held under advisement until this day.</p>

In Bankruptcy. On questions certified by referee. On the 2d day of May, 1904, Parlin & Orendorff Company brought an action of replevin in the circuit court of Greene county, Mo., against the bankrupt, Hymes Buggy & Implement Company, to recover possession of certain personal property, consisting of rakes, grinders, wagons, buggies, etc., alleged to be of the value of $8,000, covering about 200 items.

<p>On Demurrer to Petition in Involuntary Bankruptcy.</p>

<p>1. Accident Insurance — Cause of Death.</p> <p>A death resulting from a self-inflicted knife cut made by an insured while trimming a corn, which was followed by blood poisoning, is one from an “accidental, external, and violent” injury, within the meaning of an accident policy.</p> <p>2. Same — Notice by Beneficiary.</p> <p>Where an accident policy provides for a weekly indemnity for injury to be paid to the insured, and also for a sum to be paid in case of death to a named beneficiary, no duty to give notice to the insurer rests upon the latter until vested with a right or interest in the policy by the death of the insured.</p> <p>3. Same — Action for Death of Insured — Questions for Jury.</p> <p>Plaintiff, who was an aged woman, was beneficiary in an accident policy held by her husband, but had no knowledge of its existence. She assisted in nursing her husband after his injury, and on his death was at once taken to the home of her daughter at a distance, where she remained two months. On her return the policy was found among the papers of the deceased, and notice of the death at once given to the insurer, which made no objection on account of her delay, but required and accepted further proofs as to the cause of death. Eeld, that whether the circumstances excused the delay in giving the notice, or whether such delay was waived by the insurer, were questions for the jury.</p>

In Bankruptcy. Petition in involuntary bankruptcy by William J. Brake, administrator of the estate of Gerard H. Brake, deceased. On demurrer to petition.

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

<p>1. Evidence — Relevancy to Issues.</p> <p>In an action against a carrier to recover for goods lost by fire while stored in a warehouse, through the alleged negligence of defendant in storing them in an unsafe place, evidence is admissible showing the condition of surrounding buildings, or that smoking in the locality had been prohibited by a city ordinance, as bearing on the issue as to such negligence.</p> <p>2. Same — Admissions.</p> <p>An insurer which by payment of a loss has become subrogated to a right of action of the insured against a third party must recover thereon, if at all, in the right of the insured alone, and its own declarations or admissions are not admissible against such right.</p>

<p>1. Federal Courts — Process—Service—Rules—State Laws.</p> <p>Rev. St. § 918 [U. S. Comp. St. 1901, p. 685], provides that federal courts may make rules directing the return of writs, for the advancement of justice and the prevention of delays, under which a federal court sitting in Vermont adopted a rule providing that all processes shall be returnable to the next term, if there be time for seasonable service thereof, according to the laws of the state. Held, that notwithstanding Rev. St. § 914 [TT. S. Comp. St. 1901, p. 684], requiring the practice, pleadings, forms, and modes of proceedings in civil causes, other than equity and admiralty causes, to conform to the practice in state courts of record, a writ of attachment issued by such federal court, dated 22 days before, and made returnable at the succeeding term under such rule, was valid, though it did not comply with the state statute requiring state writs to contain a direction for service and return within 21 days after date of the process.</p> <p>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. O. A. 553.</p>

<p>1. Attachment — 'Writs—Service—Corporations.</p> <p>V. S. 21, providing that the word “person” shall include bodies politic and corporate, and section 1109, declaring that, when the goods or chattels of a person are attached in the suit of another, a copy of the attachment and a list of the articles attached, attested by the officer serving the same, shall be delivered to the party whose goods are attached, or to his agent or attorney in possession thereof, authorize the issuance of writs of attachment against the property of corporations.</p> <p>2. Same — Railroads—Lessees—Persons to Receive Service — Statutes—Construction.</p> <p>V. S. 3948, providing for the appointment by the lessee of a railroad within the state of a person resident therein on whom process may be served, and section 3949, declaring that, on failure to appoint such a person, process may be served by leaving a copy with the station agent or depot master in the employment of the lessee, furnishes an additional mode of service to that provided by section 1109, authorizing attachment by leaving a copy with the party whose goods are attached, and providing, if he is not an inhabitant of the state, such copy shall be left with his known agent or attorney, or, for want thereof, at the place where such goods or chattels are attached, and does not require service of an attachment by leaving a copy with the persons provided by section 3949.</p> <p>1[ 1. See Corporations, vol. 12, Cent. Dig. § 2007.</p> <p>T 2. Service of process on foreign corporations, see note to Eldred v. Palace Car Co., 45 C. C. A. 3.</p>

<p>1. Collision — Steam Vessels Cbossing in East Riveb — Negligent Navigation in Night.</p> <p>The tug Transit backed out of a slip in East river in the night as the tug Montauk was coming down with two car floats on her port side. The Transit gave her a signal of one whistle, which was assented to, and started to cross ahead, while the Montauk ported and slowed. When the Transit had partly crossed, she saw for the first time a ferryboat east and nearly abreast of the Montauk, and, being unable to cross ahead of such boat, attempted to pass between the two, coming into collision with the Montauk’s tow. The tide was flood. The channel was about 1,500 feet wide, and the Montauk and her tows were in about the center of the west side. Held, that the Transit was in fault for attempting to cross the Montauk’s bows, without knowing that there was no vessel on the other side, when she might have waited; that the Montauk, while properly handled, was chargeable with contributory fault for not being in the center of the channel, as required by the local statute, in which case the Transit, which was intending to go up the river, would have passed on the west side of her.</p>

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

<p>In Admiralty. On exceptions to report of assessor.</p>

<p>In Bankruptcy. On petition for order against trustee.</p>

<p>In Bankruptcy. On petition against the Henry McShane Manufacturing Company as an involuntary bankrupt.</p>

<p>1. Notes — Obligation of Surety — Release.</p> <p>Plaintiff, who was surety for her father on certain notes payable to defendant bank, agreed to become surety on four new notes, and to pay $200 in money in consideration of her discharge from further liability. A note on which plaintiff, was liable, not then due, was not noticed when this arrangement was made, and on its maturity the bank commenced suit thereon against plaintiff; but plaintiff claimed that the bringing of suit on such note was a fraud, and released her from liability on the other notes. The bank thereupon surrendered the note and gave up all claim to recover thereon. Held, that the surrender of such notes cured the act of the bank in attempting to collect it in so far as it tended to show a violation of the previous agreement.</p> <p>2. Same — Collections—Fees.</p> <p>A bank holding a judgment agreed to pay plaintiff one-half of anything she could collect thereon, and after suit brought and attachments levied the bank caused the same to be dismissed, and settled with the judgment debtor for an amount much less than the face of the judgment. In a suit to recover plaintiff’s proportion of the amount due on such judgment there was no testimony tending to show that the debtor owned any particular property or credits which would be covered by the attachment liens except the mere opinion of plaintiff’s father that the debtor had inherited from his father’s estate more than sufficient to pay the judgment. Held, that plaintiff was only entitled to recover one-half of the amount for which the claim was settled by the bank.</p>

<p>In Equity. Exceptions to answer dismissed.</p>

<p>1. Insurance — Mutual Benefit Societies — Beneficiaries—Powers.</p> <p>Where the laws of the state in which a mutual benefit society was Incorporated, and the constitution and laws of such society, gave it express power not only to provide for the widows, orphans, and other relatives of deceased members, but authorized it to make provision for “any persons dependent upon deceased members,” the association had power to issue a benefit certificate, payable to a certain person named, who was married to assured, and who in good faith lived with him as his wife and was dependent upon him for support, though she was not the legal wife of assured by reason of his having a former wife from whom he had not been divorced.</p> <p>2. Same — Policy—Construction.</p> <p>Where a mutual benefit association was empowered to make provision for widows and any person dependent on deceased members, and the policy ■was issued to deceased, payable to “Ella J. Palmer (wife),” the term “wife” was merely descriptio person®, and her dependency on insured was not controlled by the legality of the marital relation existing between herself and assured.</p>

At Law, Action at law, commenced in the superior court of the state of Washington for Spokane county by a citizen of the state of Idaho against a New York corporation to recover damages for a personal injury suffered by the plaintiff while at work in a mine operated by the defendant in the state of Idaho.

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

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

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

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

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

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

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

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

<p>On Motion to Confirm Master’s Report.</p>

<p>In Bankruptcy. Dismissing exceptions to referee’s report against discharge of bankrupt.</p>