Volume 131 — Federal Reporter

<p>1. Seamen — Injury in Service — Duty oe Ship to Make Nearest Port.</p> <p>The master of a sailing ship on a voyage to Honolulu was not chargeable with a neglect of duty which renders the ship liable in damages because he did not return from the vicinity of Cape Horn to Port Stanley, Falkland Islands, which was the nearest port, and 540 miles distant, with a seaman who received an injury in which both bones of his leg below the knee were broken, where the mate, who had some surgical skill and experience, took charge of the injured man, and set the bones, which united firmly, but, by reason of the fracture being oblique, overlapped, producing a shortening of the leg, and where, while the ship could probably have made the islands in two or three days, the season was midwinter, when the. days were short and cold and storms prevailed, and it was further shown without contradiction that the entrance of the harbor at Port Stanley by a ship of her size was very dangerous, and likely to take several days at that season, and that vessels went there only as a last resort, and in cases of dire necessity.</p>

<p>1. Deceit — False Representations — Constructive Fraud.</p> <p>A mortgage to defendant, as trustee, securing bonds executed by a timber company, provided that the bonds should not be valid until certified by the defendant, and that before issuing any of the bonds there should be deposited with defendant, by the mortgagor, a sum of money sufficient to pay off the first four coupons (two years’ interest) on the bonds. The mortgagor, after defendant had acceiited the trust, pledged 100 of the bonds to plaintiff, and gave plaintiff an order on defendant therefor, whereupon defendant delivered to plaintiff a letter reciting receipt of the order; that the bonds were part of an issue described on the mortgagor’s property, the title to which, etc., had been examined and approved by defendant; and that the papers were then in its possession, and stating, “We will hold the one hundred bonds subject to your order.” Held, that defendant’s promise to hold such “bonds” constituted a representation that defendant had certified the bonds, and received the money in eompdiance with the conditions precedent to their validity, the falsity of which representation was sufficient to entitle plaintiff to recover damages suffered by its having acted on the faith thereof, in an action against defendant for deceit. 1</p>

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

<p>1. Appeal — Judgment—Demurrer.</p> <p>AVhere an order sustaining a demurrer to a bill for want of jurisdiction was in favor of appellants, who appealed from other orders and a final decree, appellee could not object that the Circuit Court of Appeals had no jurisdiction of the appeal, on the ground that the question of jurisdiction could only be reviewed by the Supreme Court.</p> <p>2. Same — Final Decree.</p> <p>Where a bill in equity was dismissed, and an order entered discharging a receiver and providing for the payment of costs, every question having been disposed of in so far as the trial court was concerned, it was a final decree, and therefore appealable.</p> <p>3. Fraudulent Conveyances — Equity—Simple-Contract Creditor — Right to Sue.</p> <p>A simple-contract creditor cannot maintain a bill in equity in the federal Circuit Court to set aside fraudulent conveyances of his debtor’s property, and to have the same administered by a receiver.</p> <p>4. Same — Bankrupt Act — Construction.</p> <p>Bankr. Act, § 23a (Act July 1, 1898, c. 541, 30 Stat. 552, 553 [U. S. Comp. St. 1901, p. 3431]), providing that suits may be prosecuted in the federal or state courts to determine adverse claims to the property of the bankrupt, and section 23b, xaroviding that suits by a trustee in bankruptcy shall only be brought or prosecuted in the courts where the bankrupt whose estate is being administered by such trustee might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, relate only to suits brought by trustees in bankruptcy, and do not authorize the maintenance of a bill by a simple-contract creditor to set aside alleged fraudulent conveyances in aid of a bankruptcy proceeding against the grantor.</p> <p>¶ 2. AVhat decrees are final, see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379.</p>

<p>1. Maritime Liens — Loss by Laches — Sale in Proceedings in State Court.</p> <p>It seems that under the admiralty law applicable to the enforcement of liens the holder of a maritime lien, who participates in a proceeding in a state court which results in a sale of the vessel at his instance, loses his lien, if not by estoppel, at least by laches.</p> <p>2. Same — Estoppel to Enforce.</p> <p>Libelant, who was entitled to a lien on a schooner for salvage services and wages as master, filed his claim in receivership proceedings in a state court, and it was allowed. He consented to a sale of the vessel, and urged a corporation to bid, giving its officers to understand that his claim would be settled from the proceeds. He acquiesced in the sale to such corporation, and in the delivery of the vessel thereunder, and after the sale was confirmed asserted the priority of his claim to the proceeds, and only withdrew his claim after another lien, which exhausted the fund, had been given preference. UoUl, that he was estopped by his conduct to enforce his lien against the vessel in admiralty as against the purchaser.</p> <p>¶ 1. Waiver and extinguishment of maritime liens, see note to The Nebraska, 17 C. C. A. 102.</p> <p>See Maritime Liens, vol. 34, Cent. Dig. § 87.</p>

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

<p>1. Public Lands — Indian Reservation — Authority or President.</p> <p>The President of the United States, by proclamation, has power to reserve a portion of the unoccupied public lands of the United States for an Indian reservation, notwithstanding Rev. St. § 2319 [U. S. Comp. St. 1901, p. 1424], declaring all mineral deposits in the public lands of the United States and the lands containing the same open to exploration and purchase.</p> <p>2. Same — Mineral Lands — Entry.</p> <p>Where complainant made certain mining locations on an Indian reservation on May 27, 1902, on which day an act of Congress subjecting mineral lands in the reservation to mineral entry was passed (Act May 27, 1902, c. 888, 32 Stat. 245), but on the same day two joint resolutions (32 Stat. pt. 1, 742, 744) were passed postponing the operation of the act until December 31, 1902, such joint resolutions suspended complaiuant’s right to locate mineral claims on the land under such act.</p> <p>3. Same — Statutes—Enactment—Published Record — Impeachment.</p> <p>Where the published record of joint resolutions of Congress, duly authenticated, showed that the resolutions were approved by the President on May 27,1902, such record could not he impeached by proof showing that they were not in fact approved until a later date.</p>

<p>1. Sales — Breach op Contract by Buyer — Seller’s Remedies.</p> <p>On breach of a contract of sale by the buyer, the seller is entitled, after everything necessary to vest title in the buyer has been done, to store or retain the goods for the buyer’s benefit, and recover the contract price; to sell the goods, after notice to the buyer, for the latter’s account, and recover the difference between the contract price and the net proceeds of the sale; or, without doing either, to recover the difference between the contract price and the market value of the goods at the time and place of delivery.</p> <p>2. Same — Tendee.</p> <p>Where a buyer notified the seller of goods that he would not accept the same, the seller was not required to make a formal tender of the goods in order to sustain an action for breach of contract.</p> <p>3. Same — Ability to Perform — Evidence.</p> <p>Where, in an action for breach of a contract to purchase 5,000 tons of phosphate rock, to be delivered between February 1 and June 1, 1900, at the buyer’s option, at the rate of not more than 2,500 tons in a month, the sellers proved that they were selling agents of an association of phosphate rock miners in Tennessee, and exclusive selling agents of another mining concern in that state, and had a contract with each to deliver in April and May, 1900, as much as 2,500 tons per month of such rock as was called for in the contract, and that each had the requisite quantity of rock on hand to supply the contract, the evidence was sufficient to establish the sellers’ ability to perform.</p> <p>¶ 2. See Sales, vol. 43, Cent. Dig. § 1087.</p> <p>4. Same — Election op Remedies.</p> <p>Where, after defendants notified plaintiffs that they would not accept phosphate rock contracted for, plaintiffs gave notice of their intention to store or resell such rock, such notice did not constitute such an election by plaintiffs to treat the contract as still subsisting for the benefit of the defendants as precluded plaintiffs from maintaining an action to recover damages for breach of the contract, on the theory that it was terminated by defendants’ notice of their refusal to accept.</p>

<p>1. Corporations — Subscription Contract — Fraud—Intent—Curing Error.</p> <p>Where a subscriber to the stock of a corporation defended on the ground that he was induced to subscribe by fraudulent representations, an objection that an offer of evidence was not complete in that it did not propose to show that the statements of fact alleged to be untrue were made with a fraudulent intent, was cured by an instruction that it was necessary for defendant to show not only that the statements complained of were false, but that they were made with a fraudulent intent.</p> <p>2. Same — Statement oe Fact.</p> <p>Statements in a stock subscription contract that certain patents owned by persons designated were tbe basic patents under which the manufactured article was to be produced, and that it was proposed by the corporation to be formed, to acquire such patents and improvements for the United States, and to pay therefor 480,000 shares of the full-paid common stock of the company and $1,000,000 in cash, were statements of fact on which it was intended that subscribers should rely, and were, therefore, the proper subjects of false representations.</p> <p>3. Same — Rescission—Tender oe Stock.</p> <p>Where, in an action on a stock subscription contract, defendant pleaded a rescission of the contract for false representations and fraud, and in his affidavit of defense tendered a return of his stock, such tender was sufficient, though prior to his discovery of the fraud he had sold certain of his shares, which, however, he could replace at any time by purchase in the open market.</p> <p>4. Same — Rescission—Defense at Law.</p> <p>A subscriber to the stock of a corporation is entitled to plead a rescission of the sale for fraud as a defense to an action at law to recover assessments on the subscription contract.</p> <p>5. Same — False Representations — Reliance.</p> <p>Where misrepresentations of fact were contained in a corporate stock subscription contract itself, and were held out as material inducements to persons who were solicited to subscribe for stock, a subscriber’s signature to the contract, in the absence of evidence to the contrary, was sufficient proof that he relied and acted on the faith of such representations.</p> <p>6. Same — Laches—Estoppel.</p> <p>Where defendant was induced to subscribe for stock in a corporation on the faith of false representations made by the corporation itself and contained in the subscription contract, the corporation was estopped to claim that defendant was bound to investigate the truth of such statements, and was guilty of laches in failing to make any inquiry to ascertain the truth of such representations until shortly before defendant filed his affidavit of defense in a suit by the corporation to recover assessments levied on the stock.</p>

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

<p>In Error to the District Court of the United States lor the District of Maryland.</p> <p>In Bankruptcy.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the tug Gypsum King solely in fault for a collision between barge No. 19, in tow of the Gypsum King, on a hawser, and the S. S. Woodford. The collision occurred on the anchorage off Clifton, Staten Island, from which the tug was taking the barge, and where the steamer was anchoring.

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

This cause comes here upon appeal from a decree of the United States Circuit Court for the District of Connecticut dismissing a bill alleging infringement of complainant’s patent No. 679,896, granted August 6, 1901, to Eldridge R. Johnson, for a sound box for talking machines.

<p>1. Patents — Construction of Claims — Ore Roasting Eubnaces.</p> <p>The Greer patent, No.. 508,542, claims 3 and 8, for an ore roasting furnace, consisting of three vertical chambers, a combustion chamber, a stack, and an ore chamber between the other two, and communicating with each “at different points in its height,” “substantially as described,” “the combustion and ore roasting chambers being of substantially the same height,” require all three chambers to be substantially coextensive, as shown in the drawings.</p> <p>2. Same — Infringement. .</p> <p>The Greer patents, Nos. 495,883 and 508,542, for an ore roasting furnace, made up of three vertical chambers, each coextensive with the other two, the center one being a roasting chamber to hold the ore, and1 having openings at several points into each of the others, a combustion chamber on one side, fed from below by fuel gas intermixed with air, and a stack chamber on the other side, the draught created by which draws the flames from the combustion through the roasting chamber, were not anticipated, and are valid. Claims 3 and 8 of patent No. 508,542,- covering tbe combination of the three chambers, and claims 3 and 4 of No. 495.883 and 4 and 5 of No. 508,542, covering a gas chamber in tbe base of tbe combustion chamber, having in its top exit openings for gas and air ports adjacent, construed, and held infringed.</p>

Appellant, owner of letters patent No. 521,461, June 14, 1894, to Fisk, for a combined annunciator and spring jack for use in telephone switch boards, failed in its suit to hold appellees as infringers. In the earlier form of switch boards a bank of annunciators or drops, serially numbered, was placed above a bank of spring jacks, similarly numbered, so that any drop was distant, say, two feet from the correspondingly numbered jack.

<p>1. Patents — Infringement—Electric Railway Trolleys.</p> <p>The Anderson patent, No. 412,153, for an inixirovement in electric railway trolleys, claim 8, which covers the combination with a trolley frame and wheel of metallic conducting brushes or contact springs between the hubs of the trolley wheel and the frame does not make the coxiper washer mentioned in the specification and optionally used on the end of the, hub a part of the contact spring, but it is merely an extension of the hub. An essential feature of the claim is the placing of the spring or brush inside the frame for protection, and it is not infringed by the device of the Crockett and Johnson patent, No. 690,039, in which the spring is placed in a recess on the outside of the frame, making contact with the hub through heavy washers having lugs extending through the frame.</p>

In Equity. Suit for infringement of letters patent No. 497,482, for a shunt for electric light and power stations, granted to Edward Weston May 16,1893. On final hearing.

<p>In Equity. Motion for a Preliminary Injunction.</p> <p>The patent in suit, No. 469,809, was granted to William Stanley, Jr., March 1, 1892, for improvements in systems of electrical distribution. The patent has been considered and sustained in tbis circuit in tbe so-called “Saranac Case” (C. 0.) 108 Fed. 221, affirmed in 113 Fed. 884, 51 C. C. A. 514. Tbe patent was also considered by the Circuit Court for tbe District of Massachusetts in 117 Fed. 309, and by tbe Circuit Court for tbe Southern District of New York in 119 Fed. 365.</p>

<p>1. Patents — Damages fob Infringement — Accounting.</p> <p>On an accounting for damages and profits for infringement of a patent for a manufactured article, defendants cannot be required to account for the profits on machines manufactured and sold by them, to be used by others in making the infringing article, since, while they may be liable as contributory infringers on account of such sales, the infringement itself consisted in the manufacture and sale of the article made on such machines by the purchasers, and the damages recoverable therefor cannot be measured by the profits made on the machines.</p> <p>¶ 1 Accounting by infringer of patent for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. S.</p>

In Equity. Suit for infringement of reissued letters patent No. 10,945 (original No. 381,305), for an electrical conductor, granted to Edward Weston July 17, 1888. On final hearing.

<p>1. Patents — License Restricting Use — Contributory Infringement.</p> <p>It is within the right of the owner of a patent for a machine to sell the machines under a license containing a condition that they shall be used only in connection with patented materials, also made by such owner, and one who makes and sells to users other materials specially designed and intended to be used with such machines, and which are so used, is liable as a contributory infringer.</p> <p>¶ 1. Power of patentee to control bis invention, see note to Heaton-Peninsular Button Fast Co. v. Eureka Specialty Co., 25 C. C. A. 280.</p> <p>Contributory infringement of patents, see note to Edison Electric Light Co. et al. v. Peninsular Light, Power & Heat Co. et al., 43 C. C. A. 485.</p> <p>See Patents, vol. 38, Cent. Dig. § 401.</p>

<p>In Equity. Final hearing on pleadings and proofs. The suit is one for infringement of United States patent 623,933, April 25, 1899, to William H. Wiggins, for improvement in bowling alleys.</p>

<p>In Equity. Final hearing on pleadings and proofs of suit for injunction and accounting. The suit is for alleged infringement of two patents, No. 617,942, January 17, 1899, and Ño. 634,838, October 10, 1899, both granted to Henry E. Shaffer for improvements in acetylene gas burners.</p>

<p>1. Federal Courts — Jurisdiction — Contempt — Statutes — Construction-Newspaper Publications.</p> <p>Rev. St. § 725 [U. S. Comp. St. 1901, p. 5S3), provides that the federal courts shall have power to punish contempts by fine and imprisonment, provided that such power shall not extend to any case except misbehavior in the presence of or so near the court as to obstruct the administration of justice, the misbehavior of officers of the court, and the disobedience or resistance of any such officer, party, juror, witness, or other person to any lawful writ, process, order, decree, or command of the court. Held, that the jurisdiction prescribed by such act was exclusive, and deprived the court of power to punish a newspaper publisher for contempt consisting of an editorial in his paper criticizing the official conduct and integrity of the court.</p> <p>2. Same — Imprisonment—Void Judgment — Habeas Corpus.</p> <p>Where a federal court rendered judgment against a newspaper publisher for contempt, which judgment was void as in excess of the court’s jurisdiction, the publisher was entitled to discharge on habeas corpus.</p> <p>¶ 2. See Habeas Corpus, vol. 25, Cent. Dig. § 20.</p>

Petition for a writ of habeas corpus by a citizen of California to obtain ■ custody of his minor child. Heard on motion to dismiss for want of jurisdiction. Motion granted.

Action at law to recover possession of unpatented mining claims from a defendant holding as owner by right of purchase from the administrator of the estate of the deceased locator of the claims; the plaintiffs being alleged heirs of the deceased, and claiming ownership as grantees of the government, under section 2322, Rev. St. [U. S-Comp. St. 1901, p. 1425]. Heard on motion for judgment on the pleadings. Motion granted.

<p>1. Mortgages — Manufacturing Pjcants — After-Acquired Property.</p> <p>A mortgage on tlie plant of a glass factory covered the plant, together with all improvements, extensions, enlargements, and additions constructed or required by the company, and all appurtenances,' machinery, appliances, piers, wharves, tanks, pipes, etc., now or hereafter to be erected and contracted, “and also all the property, real, personal, and mixed, * * * now owned by [the mortgagor] or hereafter to be acquired by it, together with all improvements thereon and all rights and appurtenances appertaining thereto.” Held, that the quoted clause should be construed to refer only to personal property appurtenant to the fixed property of the mortgagor, and did not cover after-acquired merchandise manufactured by the mortgagor for sale in the ordinary course of business.</p>

<p>1. Federal Courts — Railroads—Receivers—Jurisdiction—Eminent Domain—Actions.</p> <p>Wliere a federal court has appointed a receiver of a railroad company in proceedings to foreclose an underlying mortgage, a proceeding against such receiver by another railroad to condemn a grade crossing could only be permitted in the court where such receivership was pending, notwithstanding the act of Congress permitting such receivers to he sued without leave of court first obtained, since such act relates only to suits arising out of acts of the receiver in the discharge of his duties in transactions connected with the property in his hands.</p> <p>¶ 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. Pleading — Irrelevant Matter — Demurrer—Motion to Strike.</p> <p>Where, in ejectment, certain paragraphs of the answer objected to alleged facts constituting a legal defense as mere inducement to other facts pleaded as an equitable estoppel, the entire paragraph might be attacked by demurrer, instead of by motion to strike the facts pleaded as such estoppel.</p> <p>2. Federal Courts — Ejectment—Equitable Defenses — Estoppel.</p> <p>Facts constituting an equitable estoppel may be pleaded as a defense to an action of ejectment in the federal courts.</p>

<p>1. Bankruptcy — Reference — Recovery — Summary Proceedings — Jurisdiction.</p> <p>Where, in the petition of a trustee in bankruptcy to recover an alleged preference by summary proceedings, there was no allegation that respondent’s claim was colorable only, and respondent promptly objected to the form of the proceeding, the court of bankruptcy had no jurisdiction to determine the matter except by plenary suit.</p>

<p>In Equity for Partnership Accounting.</p>

<p>In Admiralty. Action to recover freight.</p>

<p>Rule for Judgment for Want of a Sufficient Affidavit of Defense.</p>

<p>1. Federal Courts — Corporations—Process—Service—Return,'-</p> <p>Wliere in an action in the federal courts against a corporation neither the statement, summons, preecipe, nor the return of the marshal recited that the corporation was transacting business in the state in which the court was sitting, and the process was served, a return of the marshal that he served the writ within his district on the corporation by giving a true and attested copy thereof to T., president of the corporation, and making known the contents of the same to him, was insufficient on its face.</p> <p>2. Same — Vacation op Service — Rule—Plea in Abatement.</p> <p>While a marshal’s return of service on a corporation is conclusive on the parties, and cannot be contradicted, yet, where the return did not show that the corporation was doing business in the state in which the court was sitting, and in fact the corporation transacted no business in such state, service being made on its president while he was engaged in private business therein, an application to set aside such service might be made by a rule to show cause, instead of by plea in abatement.</p> <p>¶ 1. Service of process on foreign corporations, see note to Eldred v. Palace Car Co., 45 C. C. A. 3. •</p>

<p>In Admiralty. Suit for damage to cargo.</p>

On Motion to Quash Indictment. The following is the motion to quash the indictment: Now comes John W. Trafton, one of the defendants in the above-entitled case, and moves to quash the above indictment, and each and every count thereof: First. Because the same nowhere charges him with any offense under the laws of the United States, set forth plainly, formally, and substantially, as required by the laws of criminal pleading. Second.

<p>1. Forgery — Pension Affidavit — Statutes—Construction.</p> <p>Tlie forgery of an affidavit by a pensioner, to be used in contesting bis deserted wife’s claim for one-lialf of his pension, as authorized by Act March 3, 1899, c. 460, § 1, 30 Stat. 1379 [U. S. Comp. St. 1901, p. 3288], is not an offense within Eev. St. U. S. § 5421 [U. S. Comp. St. 1901, p. 3667], providing that any person who falsely forges any writing for the purpose of obtaining or receiving, or enabling any other person, directly or indirectly, to receive, from the United States, any sum of money, shall be imprisoned, etc.</p>

<p>1. Bankruptcy — Referees—Jurisdiction—Admissibility of Evidence — Rulings.</p> <p>Since a referee in bankruptcy is required not only to take evidence, but to determine issues of fact and law based tliereon, he has power to exclude inadmissible evidence offered under objection.</p> <p>2. Same — Hearings—Presence of Referee.</p> <p>A referee in bankruptcy, having power to rule on the admissibility of testimony offered before him, is bound to personally hear the evidence, unless his presence is waived by the parties.</p>

In Equity. On motion to revoke appointment of master, and motion to attach Joseph C. Henvis for contempt for violation of injunction.

<p>1. Seamen — Disobedience—Punishment—Imprisonment.</p> <p>That the master of a vessel failed to re) ¡lace a second mate who had been paid off at an intermediate port, as required by Rev. St. § 4516 [U. S. Comp. St. 1901, p. 3071], was no excuse for the total refusal of members of the crew to work the vessel, and was therefore no defense to the master’s right to punish them for their disobedience.</p>

<p>1. Appeal — Final Judgment — Motion for New Trial — Pendency.</p> <p>The judgment of a federal court is not final, so that the jurisdiction of the appellate court may be invoked, while the judgment is still under the control of the trial court through the pendency of a motion for a new trial.</p> <p>2. Same — Supersedeas Bonds — Sufficiency.</p> <p>Where plaintiff was present when the amount of defendant’s supersedeas bond for appeal was fixed by the trial court, and made no objection to the amount fixed, whereupon a writ of error was allowed, the bond accepted, and citation issued, the fact that the amount fixed, was, by inadvertence, some $30 less than the amount actually due on the judgment, including interest, etc., was immaterial.</p> <p>8. Motion to Increase Bond — Jurisdiction.</p> <p>Where a supersedeas bond has been accepted, writ of error allowed, and tbe citation issued, a motion to increase the bond is within the exclusive jurisdiction of the appellate court.</p> <p>¶ 3. What decrees are final, see note to Brush Electric Go. v. Electric Imp. Co. of San Jose, 2 O. O. A. 379.</p>

<p>I. Bankruptcy — Discharge—Effect of Pkiob Discharge.</p> <p>A discharge granted to a bankrupt, in partnership proceedings instituted by himself, is one granted in voluntary proceedings, and precludes him from obtaining a second discharge within six years, under Bankr. Act July 1, 1898, c. 541, § 14b, SO 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, a, 4U].</p> <p>2. Same.</p> <p>Tlie provision of 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], which forbids a discharge if the bankrupt has in voluntary proceedings been granted a discharge within six years, is not retroactive as applied to cases where the first proceedings were had prior to its enactment, but merely adds a new condition of discharge in eases instituted after the amendment.</p>

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

<p>In Bankruptcy. Hearing on involuntary petition.</p>

<p>1. Mandamus — Federad Courts — Jurisdiction.</p> <p>Federal courts can only grant a writ of mandamus in aid of an existing jurisdiction.</p> <p>2. Same — Bankruptcy—Executive Oeeicers — Discretion.</p> <p>Where a receiver in bankruptcy was authorized to carry on the business of publishing a newspaper with a view to preserving its good will as an asset of the bankrupt’s estate, but pending such publication the postmaster, by direction of the Postmaster General, prohibited the circulation of the paper through the mails as unmailable matter, mandamus would not be granted to reverse such determination, though the question whether the publication was objectionable might be the subject of a difference of opinion.</p> <p>¶ 1. See Courts, vol. 13, Cent. Dig. § 803.</p>

<p>1. Death — Federal Courts — Jurisdiction.</p> <p>The federal courts have jurisdiction of an action for death of a servant only where it is between citizens of different states or between citizens and aliens.</p> <p>2. Same — Jurisdictional Facts — Averment.</p> <p>In an action in the federal courts for the wrongful killing of a servant, an averment that the defendant is a corporation organized under the laws of the commonwealth of Massachusetts, and that the plaintiff was “of Brattleboro, in the county of Windham and state of Vermont, executrix” of the will of the deceased, late of Brattleboro, was insufficient to show diversity of citizenship, since the allegation of plaintiff’s residence did not negative the fact that she was only temporarily residing in the state of Vermont, and was not a citizen of the same state as the defendant</p> <p>¶ 2. Averments of citizenship to show jurisdiction in federal courts, see not» to Shipp v. Williams, 10 C. C. A. 261.</p>

<p>1. Federal Courts — Diversity op Citizenship — Amendment op Record.</p> <p>Where a demurrer to a declaration in a federal court was sustained because of an insufficient averment of diversity of citizenship on which jurisdiction depended, plaintiff was entitled to amend the writ to show diversity of citizenship according to the fact.</p> <p>2. Wrongful Death — Transitory Cause op Action — Accrual—Place.</p> <p>Where intestate was domiciled in Vermont at the time he was killed in New Hampshire, the cause of action for his alleged wrongful death accrued to him in Vermont, and not in New Hampshire.</p> <p>•3. Same — Survival op Action.</p> <p>A cause of action for wrongful death would not survive, as authorized by Pub. St. N. H. 1901, c. 191, in any place where an administrator should be appointed merely for the purpose of recovering damages for such wrongful death as an asset of decedent’s estate, but survived only in the state where deceased had his domicile at the time of his death, where the cause of action accrued.</p> <p>¶ 1. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.</p>

<p>1. Collision — Fog—Negligence.</p> <p>Defendant steamer, while seeking anchorage in Chesapeake Bay during fog, collided with libelants’ schooner, laden with cord wood, with such force as to cut into the schooner’s hull, though her deck was loaded 8 feet high, with wood which extended about 10 inches beyond her hull. At slow speed, with her engines full speed astern, the steamer could have stopped her headway in not more than twice her length, yet, when those on the steamer heard the schooner’s fog horn, and the pilot gave orders to reverse, the vessels were so close that a collision could not be averted. The only lookout maintained on the steamer was in the crow’s-nest on the foremast, 60 feet above deck, and over a flock of sheep laden on deck, the bleating of which tended to neutralize signals. There was evidence that the schooner was going at a speed not exceeding four miles an hour, and that she blew proper fog signals at very frequent intervals. Held, that the collision was caused either by the immoderate speed of the steamer, or by her failure to seasonably hear the schooner’s foghorn, caused by failure to maintain a lookout in the bow, and that the steamer was therefore liable.</p> <p>¶1. Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.</p>

<p>1. Master and Servant — Injuries to Servant — Measure op Damages.</p> <p>In an action against a master for injuries to a servant, in the absence of aggravating circumstances, the measure of damages is the pecuniary loss sustained by plaintiff, and compensation for suffering endured.</p> <p>2. Same — Damages—Pecuniary Loss — How Estimated on Complete Destruction of Earning Powers.</p> <p>IVliere there has been a complete destruction of the plaintiff’s earning powers, the pecuniary loss is to be theoretically estimated by the capital which, at a fair rate of interest, will produce a yearly sum equal to the average wages likely to be earned during the plaintiff’s expectancy of life, less such a sum as, at compound interest for the same period, will equal and offset such sum.</p> <p>3. Same — Damages—Excessiveness.</p> <p>Where plaintiff, a laborer 39 years of age, who had been in defendant’s employ for 11 years, during which time the character of his work had not materially changed, was so injured by the explosion of certain lime that he lost his sight at a time when liis earning capacity was $1.50 per day, a verdict awarding plaintiff $9,500 was excessive, and should be redueed to $8,000, of wliicli $6,000 should be awarded for the pecuniary loss sustained, and $2,000 as compensation for suffering.</p>

<p>1- Admiralty — Freight—Nondelivery—Interrogatories—Exceptions.</p> <p>Where, on a libel in admiralty to recover for a shortage of 51 tons in a delivery of pig iron, it was alleged that respondent delivered to other consignees out of the same cargo 91 tons of pig iron more than had been shipped to them, respondent could not object to answering interrogatories calling for the names of the other consignees to whom delivery of pig iron was made out of the same cargo, the number of tons delivered to each, and the amount called for by their respective bills of lading, on the ground that it required respondent to disclose the business of other shippers engaged in the same trade as libelant.</p>

<p>1. Trade-Marks — Descriptive or Arbitrary Name.</p> <p>The name “Pepto-Mangan,” as applied to a medicinal preparation, is apparently arbitrary and fanciful, rather than merely descriptive, and, in the absence of evidence to the contrary, must be assumed to be one which may be lawfully appropriated as a trade-mark.</p> <p>'2. Same — Unfair Competition.</p> <p>A bill alleging that defendants make a medicinal preparation similar to one sold by complainant, which they have given a similar name, and have supplied to customers asking for complainant’s preparation, states a cause of action.</p> <p>¶ 1. Arbitrary, descriptive, or fictitious character of trade-marks or trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p> <p>¶ 2. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.</p>

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

<p>In Error to the Circuit Court of the United States for the District of South Carolina, at Charleston.</p>

The plaintiff in error brought an action against the defendants in error under the provisions of the act of Congress of July 2, 1890, e. 617, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], entitled “An act to protect trade and commerce against unlawful restraints and monopolies,” to recover damages resulting from a combination of the defendants in error to prevent him from purchasing lumber in the city of Vancouver, Wash., to he used in the city of Portland, Or.

This cause conies here upon appeal from a decree of the District Court, Eastern District of New York, in favor of libelant, for personal injuries sustained by him in an accident on the steamship King Gruffydd, on which he was working as a stevedore.

<p>1. Bankruptcy — Partnership—Evidence to Establish.</p> <p>Two men for a number of years conducted a business under a partnership agreement by which each agreed to bring into the business as rapidly as practicable all money he should be able to control, and not to withdraw, without the consent of the other, more than necessary to support his family. It was also provided that each was to have a certain interest in the business, and, to equalize the capital, interest should be allowed annually. All the capital was contributed by one, and, the business having been conducted during the later years at a loss, the other, by agreement, drew out a fixed sum per month for living expanses. Held, that such arrangement constituted a partnership), and that, on the bankruptcy of the concern, the capital employed in the business and the debts incurred therein were firm property and debts, and not those of the partner who furnished the capital.</p> <p>2. Same — Individual Debts — Firm and Individual Estates.</p> <p>Holders of notes of a bankrupt partnership, also indorsed by the individual partners, may, at their election, prove the same as individual debts of one of the partners, and, under Bankr. Act July 1, 1898, c. 511, § 5f, 30 Stat. 518 [IT. S. Comp. St. 1901, p. 3424], are entitled to payment in full from his estate before any part of the same is applied on firm debts, at least where there are substantial firm assets; and it is immaterial that all the capital of the partnership was also contributed by such partner.</p> <p>3. Same — Indebtedness of Partner to Firm.</p> <p>A finding by a referee, affirmed by the District Court, that a partner in a bankrupt firm was not indebted to the partnership on account of money drawn out, which was less than he was entitled to draw under the partnership agreement, held sustained by the evidence.</p>

<p>1. Negligence — Contractor’s Servant — Injuries—Question eoe Jury.</p> <p>Plaintiff, a negro laborer, was employed by an independent contractor to tear down a wall in defendant’s locomotive works during the making of the alterations therein, for which xiurpose plaintiff climbed on the third round of a ladder, with the width of the wall of the erecting shop of the defendant’s works between him and the rail on which a movable crane was operated. Plaintiff reached across the wall and took hold outlie rail, and in this position began throwing bricks from tbe wall, and while so engaged the crane was moved along the rail, crushing plaintiff’s hand. At the time defendant’s crane operator started the same, when it was about 50 feet distant from the plaintiff’s hand, he looked along the track, and saw nothing to cause him to suspect danger to plaintiff, and there was nothing in plaintiff’s position to cause the operator to believe" that plaintiff’s hand, which was dark, was on the rail. Held, that such facts did not justify the submission of the case to the jury on the theory that defendant, after xfiaintiff had put himself in a position of danger, could, by exercise of reasonable care, bave discovered tbe danger, and avoided tbe injury.</p>

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

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

<p>1. Building Contract — Sureties—Departure—Discharge.</p> <p>Where a building contract provides that no payments shall become due until in each case the contractors shall have delivered to the owner .a satisfactory release of liens against the premises, and the owner makes payments without requiring vouchers or releases, such payments constitute a substantial departure from the contract, to the prejudice of the contractor’s surety, and discharge it from liability for a loss resulting therefrom. ></p> <p>¶ 1. See Principal and Surety, vol. 40, Cent. Dig. § 284.</p>

<p>1. Bankruptcy — Acts op Bankruptcy — Intent in Making Transfer op Property.</p> <p>In determining the question whether a transfer by an insolvent manufacturing corporation of the greater part of its business and property to another corporation, organized largely by the same persons, in exchange for the stock and bonds of the latter, was made in good faith, or with intent to hinder, delay, or defraud its creditors, so as to constitute an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3, cl. “a,” subd. 1, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], the jury may properly take into consideration the natural and necessary result of the transfer, and may infer the intent therefrom.</p> <p>2. Appeal — Review—Exceptions to Charge.</p> <p>A general exception to the refusal of a number of requests to charge is not well taken if any of such requests were properly refused.</p>

The plaintiff in error, a citizen of New York, brought this action in ejectment against the defendants, citizens of Montana, to recover possession of lot 11 in block 89 in the cits' of Anaconda, Mont., alleged to be of the value of $2,500 and more. The plaintiff in error bases her claim of title to the premises in controversy upon a sheriff’s deed dated May 19, 1902, issued pursuant to an execution sale upon a deficiency judgment against the defendants in error.

The bill was by appellant, a depositor of the National Bank of Illinois, •on behalf of himself and all others who might join him, against appellees, directors of the hank, to recover losses to the assets of the hank, otherwise distributable to the depositors and creditors, alleged to have been brought about by the negligence and misconduct of such directors.

<p>1. Shipping — Bill of Lading as Evidence of Keceipt.</p> <p>A bill of lading issued by tbe master of a ship is prima facie evidence of, and, in the absence of proof to the contrary, establishes, the receipt on board of the goods therein described.</p> <p>2. Same — Constructive Delivery.</p> <p>To establish a constructive delivery by a ship of goods deposited on the wharf, it is necessary for the carrier to show that he separated the goods from the general bulk of the cargo, designated them, and gave due notice to the consignees of the time and place of their deposit, and a reasonable time for their removal.</p> <p>3. Same — Contract.</p> <p>The question of the duty of the carrier to deliver goods carried is to be determined by the bill of lading, without regard to the charter party, of which the shipper had no notice till after the terms of his contract with the ship had been unalterably fixed.</p> <p>4. Same — Waiver.</p> <p>Any right of the carrier under the contract to compel consignees to take goods shipped “from alongside” is waived by the carrier unloading the goods onto the dock.</p> <p>¶2. See Shipping, vol. 44, Cent. Dig. § 426.</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>The Haas Company, a corporation organized under the laws of Illinois, October 24th, 1892, with an authorized capital stock of eighteen thousand dollars, and engaged in a soda water manufacturing business, was, on or about the 22nd day of December, 1902, adjudicated a bankrupt, and its property put into the hands of a receiver pending the appointment of a trustee. Thereupon appellee, mortgagee under a chattel mortgage, filed his petition, praying that the receiver he directed to turn over to him all the personal property described in the mortgage which was made to secure notes aggregating the sum of two thousand dollars. The property covered constituted the entire assets of the company. The trustee answered, challenging the validity of the mortgage, and on hearing before the referee, an order was recommended denying the petition; but on exceptions in the District Court, this recommendation was overruled, and the trustee directed to pay to the petitioner the proceeds of the sale, a sale having already taken place. From this order the appeal is prosecuted. ></p> <p>' The finding of facts by the referee, about which there is no dispute, is as follows:</p> <p>Prior to and on March 5th, 1902, the Haas Company was a corporation having a capital stock $18,000.00 divided into 180 shares of $100.00 each, of which Mr. Charles Ziegenhagen was the owner of 119 shares, Mrs. Lena Haas was the owner of GO shares and Rosina Ziegenhagen was the owner of 1 share, the last named persons being the owners of all the shares of stock and the directors and officers of the corporation. At a meeting of the said directors, on the 5th day of March, 1902, at which all the directors, stockholders and officers were present, the President Charles Ziegenhagen, stated that he had received an offer of $3500.00, for all the capital stock of the Company, payable as follows: $1500.00 cash, balance in 1, 2, 3 and 4 years. After discussing the matter, the other stockholders agreed to assign their stock in blank, and deliver the same to Mr. Ziegenhagen in order that he might make the sale, and it was decided and agreed that Charles Ziegenhagen be authorized to make the sale upon the terms above stated.</p> <p>The foregoing facts appear from the record of the minutes of the corporation for March 5th, 1902. It also appears from the testimony of the petitioner, Charles Ziegenhagen, and the testimony of Frederick H. Teeple, that the negotiations for the sale of this stock had been going on for some time prior to March 5th, 1902, between Charles Ziegenhagen and Frederick H. Teeple, the latter being the proposed purchaser and that an oral agreement was made prior to the meeting of March 5th, 1902, between Ziegenhagen anü Teeple, which provided that Teeple was to purchase the stock and to pay $1500.00 cash and to give notes for the balance.</p> <p>At the Directors’ meeting above referred to, held on March 5th, 1902, Charles Ziegenhagen, Lena Haas and Iiosina Ziegenhagen resigned as directors and officers of the corporation, the resignations to take effect March 6th, 1902, at 12:00 o’clock noon. The records of the corporation show what purports to be the minutes of the meeting of the stockholders of the Haas Company, held “pursuant to notice.” It is stated that there were present at said meeting, the following named stockholders:</p> <p>Frederick H. Teeple.......................................178 shares</p> <p>Frank W. Teeple...................................... 1 share</p> <p>Frederick Matz ............................................ 1 share.</p> <p>The record is silent as to the date or day on which said meeting was held. The minutes of this meeting show that the parties named as stockholders, elected themselves as directors of the corporation for the period of one year. The evidence shows that none of the stock was turned over by Ziegenhagen until the 7th day of March, 1902, but the minutes of the corporation show that on the 6th day of March, 1902, a meeting of the new directors last named, was held pursuant to notice. At that meeting, the directors were elected officers of the corporation: Frederick H. Teeple, President and Treasurer, Frederick Matz, Secretary, and a resolution was passed as follows: “That the officers of this Company be and they are hereby authorized to execute a chattel mortgage for and in the name of the Company in favor of Charles Ziegenhagen upon the property of the Company to secure its five notes dated the 7th day of March, A. D. 1902 one — for $250, due in six months after date one for $250, due twelve months after date — one for $250, due eighteen months after date — one for $250, due twenty-three months after date — one for one thousand dollars due two years after date all of said notes to bear interest at the rate of 5% per annum and 7% per annum after maturity.” On the 7th of March Ziegenhagen delivered the 180 shares of stock of the corporation to Teeple and the others purporting to be stockholders of the Company and received from Teeple, $1500.00 in cash, and notes and mortgage of the Haas Company for the balance, and a chattel mortgage as set forth in said petition. .</p> <p>On March 7th, when the original stock was turned over by Ziegenhagen, there was no indebtedness against the Haas Company.</p> <p>I find that, at the time the meeting of March 6tli, 1902, was held. Frederick H. Teeple and the others who purported to act as stockholders and directors were not the stockholders of the corporation and did not become stockholders or directors by right until the 7th day of March, 1902.</p> <p>I further find that the indebtedness to Ziegenhagen was the indebtedness originally of Frederick H. Teeple and that no consideration whatever passed from Ziegenhagen to the Haas Company, a corporation, and that the notes and mortgage in controversy, were wholly without consideration, passing to the Haas Company and that the Haas Company, even through its authorized directors or managers, had no authority or power to make such notes and mortgage and that the petitioner, Ziegenhagen, had knowledge of all these facts when he turned over his stock and took the chattel mortgage and notes.</p> <p>My conclusion is that the action of the directors and officers in giving the mortgage, was wholly unauthorized and ultra vires and if not absolutely void as to the corporation, the said notes and mortgage should be held as void against the rights of even subsequent creditors.</p> <p>The only further fact of consequence is that at the time of the giving of the chattel mortgage, the company was free from debt; the creditors represented by the trustee here having become such since the mortgage was put on record.</p>

<p>Appeals 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 Southern District of New York.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>This cause comes here upon appeal from a decree, of the Circuit Court, District of Connecticut, restraining defendants from unfair competition in trade, and for an accounting. Complainant and its predecessors have for 30 years been engaged in the manufacture and sale of a line of mills for grinding coffee, drugs, etc., of varying sizes; adopting therefor a certain characteristic shape, design, color, and ornamentation, which have become well known to purchasers, and associated in their minds with the goods of complainant. In 1898, or thereabouts, the defendants began to make and offer for sale similar mills, and, upon discovery thereof, this suit was brought.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of North Carolina.</p> <p>On Motion of Appellee to Dismiss.</p>

The action in the Circuit Court was to recover for personal injuries sustained by plaintiff in error, while at work on the railway tracks of the defendant in error, near Janesville, Wisconsin. The substantial facts brought to the attention of the court and jury were without dispute. The tracks of the defendant in error entering Janesville, Wisconsin, pass over a high trestle on wooden piles.

<p>X. Patents — Anticipation by Paper Patent — Identity of Ideas.</p> <p>In determining the question of identity of the inventive idea Involved in two patents, it is not a sufficient answer to say of an alleged anticipation that it was a mere paper patent, and that the device had never been operative or commercially successful, because prior existing conditions may not have stimulated full development</p> <p>2. Same.</p> <p>A patentee cannot be denied invention because of a prior patent for a device which never came into use, unless the idea upon which his patent is predicated is so clearly set forth or suggested in the alleged anticipating patent that a mechanic with such patent before him could by the exercise of mere mechanical skill so modify proportions or change the mode of operation as to overcome the difficulties which excluded the prior device from commercial utility.</p> <p>8. Same — Bottle Stoppers.</p> <p>The Painter reissue patent, No. 11,685 (original No. 540,072). for a bottle stopper, which consists of a cup-shaped disk of material having a permanent flexion, which is inserted in the neck of the bottle and there expanded into a groove having a shoulder below, and in which a gasket has been placed, thus making a tight stopper, was not anticipated by the British patent to Young, No. 12,247 of 1848, which does not cover a stopper, but merely a disk designed to be expanded on the top of a cork or other stopper, to hold the same in place, performing the function of the wiring otherwise used for that purpose.</p> <p>¶ 1- See Patents, vol. 38, Cent. Dig. § 73.</p>

This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, sustaining a demurrer to the complainant’s amended bill, and dismissing the same. The decision below is reported in 126 Fed. 765.

<p>1. Patents — Anticipation—Unsuccessful Devices.</p> <p>A patent for an improvement or manufacture which does not accomplish the objects and purpose of its conception and is impracticable docs not anticipate a later patent upon a similar device capable of successful operation, unless the objections to the device of the prior patent relate merely to details of construction, or where it can be converted into a successful device by a mechanic of ordinary skill.</p> <p>2. Same — Prior Use — Burden of Proof.</p> <p>A defendant has the burden to establish an alleged prior use to defeat a patent by proofs clear, satisfactory, and beyond reasonable doubt.</p> <p>3. Same — Infringement—Portable Drilling Machine.</p> <p>The Moffet patent, No. 360,120, for a portable drilling machine having a rotary engine operated by steam or compressed air, was not anticipated, and is entitled to a liberal construction; the machine described being the first successful portable power drill for heavy metal boriug. Claims 1 and 2 also held infringed.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. § 73.</p>

<p>1. Patent — Infringement—Fireproof Floor Construction.</p> <p>The Orr patent, No. 471,772, for a fireproof floor and ceiling construction, is entitled to a narrow construction, only, in view of the prior art, limiting it to the precise structure shown. As so construed, it is not infringed by the construction shown in the Golding patent, No. 529,724.</p> <p>2. Same — Evidence to Negative Infringement — Proceedings in Patent Office.</p> <p>The fact that an application for a patent was considered in the Patent. Office in connection with a prior patent, and several claims rejected thereon, creates an unusually strong presumption that the structure of the1 patent as granted is substantially different from the earlier patent</p>

<p>In Equity. Suit for infringement of patent. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 468,077, for improvement in music desks for pianos, granted to Theodore P. Brown February 2, 1892. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 682,448, for a hair retainer, granted to William S. Bechtold September 10, 1901. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 639,222 for a spring bed and seat bottom, granted to John E. Gail December 19, 1899. On final hearing.

In Equity. Suit for infringement of letters patent No. 392,387 for an electrical measuring apparatus, granted to Edward Weston November 6, 1888. On motion for preliminary injunction.

<p>1, Patents — Suit fob Infringement of Two Patents — Multifaetousness.</p> <p>A bill for the infringement of two patents, although one is for a process and the other for a product, is not multifarious, where both relate to the same article and are capable of being conjointly infringed, as it is alleged in the bill they are by the defendant.</p> <p>¶1. Pleading in patent infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.</p> <p>See Patents, vol. 38, Cent. Dig. § 518.</p>

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

<p>1. Usury — Commissions fob Use of Credit.</p> <p>A commission charged by one commission house to another for the use of its credit under an arrangement by which it guarantied all consignments sent to the second house did not constitute usury.</p> <p>2. Bankruptcy — Preference.</p> <p>A bankrupt cannot be held to have given a preference, recoverable by his trustee, because of sums collected by a creditor after the bankruptcy from third persons under a contract which had been in force between the bankrupt and the creditor for a number of years.</p> <p>3. Contract — Validity.</p> <p>A contract by which a bankrupt commission firm, some years before its bankruptcy, agreed to do all its business through another firm, obtaining the benefit of the latter’s credit, held not invalid, as a scheme to hinder, delay, or defraud its creditors.</p> <p>4. Bankruptcy — Jurisdiction of Courts — Suit by Trustee.</p> <p>A court of bankruptcy has jurisdiction by consent of a suit by a trustee to recover a fund for the estate, under Bankr. Act July 1, 1898, c. 541, § 23, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431], where the defendant appears generally and answers to the merits.</p> <p>5. Factors — Lien—Effect of Contract between Commission Houses.</p> <p>A commission firm some years before its bankruptcy entered into a contract by which it agreed to do all its business through defendants, composing a second firm, to whom all goods should be consigned, and in whose name all sales and collections were to be made. Defendants were to make advances on consignments, and be responsible therefor. A lease for iiremises occupied by the bankrupt was assigned to defendants, but the rent therefor was to be paid by the bankrupt, which was to continue to occupy them and carry on the business therein at its own expense. At the time of the bankruptcy there were goods on the premises or in warehouse in the bankrupt’s name, some of which had been consigned in defendants’ name, and some purchased by the bankrupt, but on all of which defendants had made advances. There were also accounts due for goods sold, made payable to defendants by directions on the invoices sent to purchasers. Held, that the consigned goods were in the possession of defendants, who had a lien thereon, as well as on the accounts due for such goods sold, for their advances and charges, but that goods bought by the bankrupt must be considered as having been in its own possession — the premises being its own, as between it and defendants — and that defendants, lacking possession, bad no lien either upon such goods, or accounts due for those sold, although, as in case of the other accounts, there was a direction on the invoices that they should be paid to defendants, and the bankrupt rendered a periodical statement to defendants, in which all goods were treated as having been consigned to defendants, and all accounts as being their property.</p> <p>¶ 1. See Usury, vol. 47, Cent. Dig. § 72.</p> <p>6. Equitable Lien — Invalidity of Legal Lien.</p> <p>Where parties attempted by an agreement to give one a factor’s lien on property of the other, but such agreement did not create a lien, because possession of the property remained in the debtor, an equitable lien will not arise, although the agreement was made in good faith.</p>

<p>1. Naturalization — Offenses—Aiding or Abetting — Statutes—Construction.</p> <p>Rev. St. § 5424 [U. S. Comp. St. 1901, p. 3608], declares that every person applying to be admitted as a citizen, or appearing as a witness for such person, who knowingly personates any other than himself, or falsely appears in the name of a deceased person, etc., shall be punished by fine or imprisonment, or both; section 5425 [page 3009] prohibits the use of a false certificate of citizenship, etc., on pain of similar punishment; section 5420 [page 3069] prohibits the use of a false certificate, etc., as evidence of a right to vote, on a similar penalty; and section 5427 [page 3070] declares that every person who knowingly and intentionally aids or abets any person in the commission of any felony denounced in the three preceding sections, or attempts to do any act therein made a felony, etc., shall be punished in the same manner and to the same extent as the principal party. Hold, that since, by reason of the inadvertent failure of the revisers of the statutes to define a felony, the offense described by sections 5424r-542G [pages 3068, 3669] was not a felony, the inadvertent use of the word “felony” in section 5427 [page 3670] might be disregarded as surplusage, and such use of an inaccurate term did not affect the validity of an indictment under section 5427.</p> <p>2. Same.</p> <p>Rev. St. § 5424 [U. S. Comp. St. 1901, p. 3608] provides that every person applying to be admitted a citizen or apxiearing as a witness for any such person, who knowingly personates any other person than himself, or falsely appears in the name of a deceased person or in an assumed or fictitious name, or falsely makes, forges, or counterfeits any oath, etc., required or authorized by law relating to or providing for the naturalization of aliens, or who utters, sells, disposes of, or uses as true or genuine, or for any unlawful purpose, any false, forged, antedated, or counterfeit oath, etc., or sells or disposes of to any person other than the person for whom it was originally issued any certificate of citizenship, etc., shall be punished. Held, that the word “who,” as so used, and whenever used in the section, referred to the initial “every person,” which related to the words “applying to be admitted a citizen or appearing as a witness for any such person,” and hence the section did not include the uttering of a forged naturalization certificate by a person other than the person applying therefor, or appearing as a witness for the person so applying.</p> <p>3. Same — Statutes—Hepuncxuatioií.</p> <p>Where a statute defining a criminal offense is grammatically accurate, and its meaning is not obscure, its scope cannot be extended by repunctuation.</p>

<p>1. Federal Courts — Ball—Scire Facias — Jurisdiction.</p> <p>Under Rev. St. U. S. § 716 [U. S. Comp. St. 1901, p. 580], providing that the Supreme, Circuit, and District Courts shall have power to issue writs of scire facias agreeable to the usages and principles of law, the District Court has jurisdiction to issue such writ to enforce a forfeited recognizance or bail bond.</p> <p>2. Sake — Practice.</p> <p>Since the federal statutes do not expressly indicate the practice to be followed on scire facias on a forfeited recognizance or bail bond, resort must be had to the procedure which obtained at common law.</p> <p>3. Sake — Execution.</p> <p>Where scire facias is issued against bail, an execution cannot be awarded against the defendant who has not been personally served with process until there have been two returns of nihil to the writ</p> <p>4. Sake.</p> <p>Scire facias on a forfeited recognizance being in the nature of an original action, unless the surety has voluntarily submitted himself to the jurisdiction of the court out of which the writ issued, he must be personally served in the district of the court issuing the writ</p> <p>5. Sake — Successive Returns oe Nihil.</p> <p>In scire facias on a forfeited recognizance two returns nihil on successive writs are equivalent to personal service on the defendant only where the defendant in scire facias is domiciled or found within the jurisdiction of the court where the writ issues.</p> <p>6. Same — Breach or Bond — Bail to Appear.</p> <p>A bail bond bound the principal to appear at a certain term of court to be held on a date specified, and from day to day and from term to term to which the case should be continued, and then and there to answer such matters as should be objected against him, and to abide and perform the orders of the court, and not to depart without leave. An indictment having been returned at such term, to which defendant pleaded not guilty, the case was set for trial on March 17, 1902, defendant however being informed that another indictment would probably be returned against him. Such indictment having been presented, defendant was directed to appear to answer the same on March 6th, and, failing to appear, his recognizance was duly forfeited on the succeeding day, and, he again failing to appear on March 17th, the former forfeiture was confirmed. Held that, all of such dates being within the same term, it was the duty of defendant’s surety to produce him, as ordered by the court, on March 6th, notwithstanding a later date had been fixed for the trial on the indictment first presented, and hence the confirmation of the forfeiture on March 17th was proper.</p> <p>¶ 3. See Bail, vol. 5, Cent. Dig. §§ 376, 416,</p> <p>7. Same — Judgment—Entry.</p> <p>A surety on a bail bond obligating the defendant to appear from day to day during a particular term and from term to term cannot object that a forfeiture of such recognizance was not entered on the precise day of the term when the principal was obliged to appear.</p> <p>8. Same — Actions against the United States.</p> <p>Since the United States cannot be sued by an individual except as permitted by the acts of Congress, a bill was not maintainable jointly against the United States and the United States marshal to restrain the seizure of complainant’s property on a judgment in favor of the United States on a forfeited recognizance.</p>

<p>1. Mixes and Mixing — Location oe Claim — Errors.</p> <p>AVliere tlie locators of a mining claim mistook the direction of the vein manifested by the outcrop of ore on the surface, and laid out their claim crosswise instead of lengthwise of the vein, the original side lines of the claim became the legal end lines, and the original end lines became the legal side lines, so that the locators were entitled to follow the vein within the surface lines of the claim on its downward course into the earth so far as it departs from a perpendicular as to carry it underground beyond the legal side lines to a point where it shall he cut off by its legal end lines vertically extended perpendicularly in their own direction.</p> <p>2. Conversion op Ore — Trespass—Estoppel—Pleading.</p> <p>AVhere, in an action to recover for the conversion of ore, plaintiff took the ground that defendant was a naked trespasser when he took away the ore underneath the surface lines of plaintiff’s claim, plaintiff could not plead that defendant was estopped to claim the right to remove such ore under a contract between the parties for the development by defendant of plaintiff’s mine.</p> <p>3. Contracts — Money Paid — Misapplication—Recovery.</p> <p>AVhere plaintiff paid money to defendant under a contract by which defendant agreed to develop plaintiff’s mine,' but the money was in fact expended by defendant in cutting inclines, drifts, etc., wMcli either helped defendant directly in getting out its own ore, or developed workings whieh might have shown other ore belonging to defendant if they had not proved barren, plaintiff was entitled to recover the money so paid.</p>

<p>1. Shipping — Lighterage oe Cargo — Demurrage.</p> <p>A steamship line contracted to carry a cargo of lumber to New York, and deliver it at any point directed, within the lighterage limits of the port The owner directed a part of it delivered to a shipyard on Staten Island, which was outside the limits; and the carrier employed libelant’s barge to make such delivery, charging the owner of the lumber with the cost of the extra towage. The barge, with all the lumber loaded thereon, was unable to get up to the dock at which lumber was delivered at the shipyard, and, the consignee declining to receive it elsewhere, she lay several days waiting until a part was taken off onto another boat. Both the steamship company and libelant knew the condition of the dock, and that the barge would certainly, or at least probably, be unable to reach it with the load placed on her, and it was verbally agreed between them that the company should not be liable for demurrage. Held, that the delay was due to the action of the steamship company and libelant in knowingly placing such a load on the barge that she probably could not reach the dock, and they could not cast the burden of their negligence on either the skipper or the consignee, and that libelant could not recover the demur-rage from the steamship company, because of their agreement.</p> <p>¶ 1. Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.</p> <p>2. Same.</p> <p>A memorandum or writing delivered by the steamship company to the master of the barge after the lumber had been loaded thereon, apparently to be signed by the consignee and returned as a receipt, and which contained incomplete provisions with respect to demurrage for delay after the barge was “ready to deliver,” but was not signed by either the steamship company or libelant, would not exclude proof of the parol agreement between them in that respect; nor could libelant claim that the barge was ready to deliver, when she could not reach the dock, as he knew she could not when the cargo was loaded.</p>

<p>1. Shipping — Loss op Cargo — Negligence—Statutes.</p> <p>Where the owner of a vessel, while in her home port, permitted all of her crew to leave for the night, except the fireman, cook, and a deck hand, and permitted them to sleep without maintaining a proper watch, and the fires to be banked so that no steam was available to work the pumps in case of an emergency, he was guilty of negligence, rendering the vessel liable for loss of cargo by the sinking of the vessel from injuries caused by an ice jam, notwithstanding the Harter act (Act Eeb. 13, 1893, c. 103, § 3, 27 Stat. 443 [U. S. Comp. St. 1901, p. 2946]), providing that, if the owner shall exercise due diligence to make the vessel seaworthy and properly manned, lie shall not be liable for negligence in the navigation or management thereof, etc.</p>

In Bankruptcy. On petition for review of the order of the referee denying the petition of H. J. Indvik, asking that he be adjudged owner and entitled to the possession of four carriages in the possession of the bankrupt at the time of the adjudication, and that the trustee be ordered to turn said property over to him.

<p>Duell, Megrath & Warfield (Morphy, Ewing & Bradford, of counsel), for complainant.</p>

<p>1. National Banks — Insolvency—Stockholders’ Liability — Assessment-Transfers — Infant Transferees.</p> <p>A transfer of stock in a national bank, while it was a going concern, to the stockholder’s infant children, under five years of age, not legally liable to assume all the obligations of stockholders, did not relieve the father from Ms liability for assessments levied on the stock so transferred after the bank’s insolvency.</p> <p>2. Same — Banks—Reorganization as National Bank — Consent of the Stockholders — Estoppel.</p> <p>Where a stockholder in a state bank, after its reorganization as a national bank, accepted dividends on bis individual shares, and in view of tlie tender age of certain children, to whom be had transferred part of his stock, it might be presumed that he also received dividend checks made payable by the bank to the order of such children, be was estopped to deny his liability for assessments levied on such stock by the comptroller on the insolvency of the bank on the ground that he did not expressly assent to the reorganization of the bank.</p> <p>¶ 1. Liabilities of transferrors and transferees of corporate stock for assessments, see note to General Electric Co. v. International Specialty Co., 61 C. C. A. 332.</p>

<p>1. Criminal Law — Bah.—Exoneration—Removal of Accused.</p> <p>Where .accused was prevented from appearing to answer an indictment for a federal offense in a certain district by reason of bis having been removed by the court for trial under an indictment in another district, such removal operated to exonerate the ball for his appearance.</p> <p>2. Same — Objections to Removal.</p> <p>Where, pending a hearing for the removal of an accused from one federal district to another, an application for removal to a third district was filed, the government, though not entitled to pursue both antagonistic proceedings for removal, was entitled to drop the one last commenced, and, after securing custody and arraignment of accused in the district to which removal was first asked, prosecute a new proceeding to remove him to the district to which a removal was desired to be effectuated by the second proceeding.</p> <p>3. Same — Several Proceedings for Removal — Discontinuance—Election.</p> <p>Where a federal prisoner was removed to a certain district for trial on an indictment pending against him in such district, he could not object to a second proceeding by the United States to remove him to another .district for trial on an indictment pending against him in. such district before be bad been tried on the indictment in the district to which he was first removed; such removal not being, prejudicial to his rights.</p>

<p>In Bankruptcy. On certificate from M. H. Taggart, referee.</p>

<p>On exception to the petition by Ohio Transportation Company, as owner of steamer Gladstone and bailee for cargo, and by the underwriters, as well, on such cargo, in respect of petitioner’s allegations for leave to contest liability.</p>

<p>1. SnirriNG Articles — Statutes—Application.</p> <p>Rev. St. § 4511 [U. S. Comp. St. 1901, p. 3008], prescribing the provisions necessary to be inserted in shipping articles, applies to contracts for shipping of crews for American vessels engaged in coastwise trade, and in trade between ports of the United States and the Dominion of Canada.</p> <p>2. Same — Seamen’s Wages — Contracts.</p> <p>A provision of a contract for seamen’s services that “the crew shall make no claim for wages or provisions while the vessel is detained by ice prior to departure” was reasonable, and was not in violation of Rev. St. § 4511 [U. S. Comp. St. 1901, p. 3068], specifying the provisions necessary to be inserted in such contracts, and declaring in subdivision 8 [page 3069] that “any stipulations in reference to advance and allotment of wages or other matter not contrary to law” may be inserted.</p> <p>3. Same.</p> <p>Such stipulation was not void under Rev. St. § 4524 [U. S. Comp. St. 1901, p.. 3076], providing that a seaman’s right to wages and provisions shall be taken to commence either at the time when he commenced his work, or at the time specified in the agreement for his commencement of work or presence on board, whichever first happens. .</p>

<p>1. Criminal Law — New Trial — Newly Discovered Evidence.</p> <p>In a prosecution for conspiracy to defraud the United States, H. testified that he had given a deed in blank to defendant, as agent, with the understanding that the latter should endeavor to sell the land and account for the proceeds. It was conceded at the trial that defendant had inserted the name of his codefendant as grantee in the deed in order to qualify him as bail. On H.’s testimony being given, defendant claimed surprise on tbe ground that H. had delivered the deed to one S., as agent, who had sold the property to defendant for a valuable consideration, and sought a continuance to obtain S.’s testimony, which was denied. After the trial, H. made affidavit that he had been mistaken in his testimony, and both he and S. testified that the deed had been delivered to S., and not to defendant. Held, that defendant was entitled to a new trial on the ground of newly discovered evidence</p> <p>2. Same — Laches.</p> <p>Where, after defendant had been convicted of conspiracy to defraud the United States, it developed that certain material testimony given against him, which was highly prejudicial, was false, and it was probable that, but for such evidence, the trial might have terminated differently, defendant’s laches in applying for a new trial on the ground of newly discovered evidence was not sufficient to justify a denial thereof.</p>

<p>1. Breach oe Trust.</p> <p>P. assigued to complainant his interest in a concession by a city for a horse car line, and agreed to make proper transfer by deed when the city should grant the right to use electricity as a motive power for the road. Defendant received the assignment to hold in escrow in accordance with such agreement. Held, that I*, never having acquired the right to use electricity as a motive power, and having informed complainant that he could not secure such right, which was an essential condition to the contract of assignment, there was no breach of trust by defendant in thereafter proceeding in the matter for himself, he not having conspired with P. or any one else to prevent complainant from getting its full concession for horse and electric power.</p>

<p>1. Shipping — Longshokemen—Injuries—Safe Place to Wokk.</p> <p>Where the watchman of a ship was charged with the duty of lighting the hold or furnishing lights to the stevedores to enable them to safely reach the hold in which they were working, and there is no evidence that the watchman, in the performance of such duty, was in the employ of an independent contractor, it will be presumed that the watchman continued in the employ of the ship, which was chargeable with his negligence in failing to light the hold for the benefit of a longshoreman employed by the head stevedore; such negligence being proximate cause of his injuries.</p>

<p>t. Contracts — Ambiguity—Parol Evidence.</p> <p>Where written contracts were not only ambiguous in respect to wbat was stated therein, but also in respect to matters omitted, and were incomplete as to vital matters necessary to render them working contracts, it was proper to admit parol evidence to show bow the contracts had been construed by the parties for a period of seven years during which they carried on. business.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. § 2129.</p>

<p>1. Bankruptcy — Adverse Claims — Courts—Jurisdiction.</p> <p>A bankruptcy court lias jurisdiction to determine in the first instance whether an asserted adverse claim to property claimed by the bankrupt’s trustee is colorable or actual.</p> <p>2. Same — Summary Proceedings.</p> <p>Where an adverse claim to property claimed by a bankrupt’s trustee is colorable merely, or clearly a nullity, the referee has jurisdiction to require a surrender of the property to the trustee in bankruptcy, or to determine such adverse claim by summary proceedings; but, if it appears that the claim is asserted in good faith, and substantiated by verified pleadings or oral testimony, the issue can be determined only by a plenary suit.</p> <p>¶ 2. See Bankruptcy, vol. 6, Cent. Dig. § 447.</p>

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

<p>1. Admiralty — Demurrage—Delay in Lading — Fault.</p> <p>Libelants of a cargo were not entitled to recover demurrage for delay in loading where the proof showed that whatever delay arose was owing to the failure of the steamer and tow to arrive as scheduled, by reason of which other vessels arrived, and were loaded in turn at the dock, in accordance with the customs of the port.</p> <p>2. Same — Discharge—Reasonable Dispatch — Delay.</p> <p>Where, by the exercise of customary diligence and promptitude, a steamer and tow could have been unloaded 2% days earlier than the discharge was effected, the consignee was liable for the delay.</p> <p>¶ 1. See Shipping, vol. 44, Cent. Dig. §§ 572, 587.</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 40 C. C. A. 4.</p>

<p>1. Bankruptcy — Trustees—Appointment by Referee.</p> <p>Where, at the first meeting of the creditors of a bankrupt, the referee found it impracticable to pass on the validity of the claims there presented, because the validity of a large number of them was attacked by other creditors, and therefore continued the consideration thereof, it being impossible to select a trustee in the ordinary manner, it was proper for the .referee to appoint a trustee of his own selection, as authorized by Bankr. Act July 1, 1898, c. 541, § 44, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438],</p> <p>2. Same — Petition for Review — Evidence.</p> <p>Where, on petition by creditors for review of an order appointing a trustee for a bankrupt, the creditors desire a review of the evidence, they should either have the evidence before the referee taken down stenographieally. and by him certified to the judge, or should specifically point out to the referee the testimony which they wish summarized, and should ask him to certify specific findings of fact.</p> <p>3. Same — Continuance.</p> <p>Where, at the first meeting of creditors of a bankrupt, disputes as to the validity of certain claims arose, the right to continue the hearing of such contests was within the discretion of the referee.</p> <p>¶ 2. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.</p>

<p>1. Navigable Waters — Docks—Projecting Rooks — Damages to Vessels— Negligence.</p> <p>Where the owner of a dock failed for Wo years after dredging the space along the dock to examine the same for obstructions, or to use reasonable care to provide and maintain a safe bottom for boats coming to the dock, though he was notified of a pointed rock lying in such bottom, and rising some 18 inches above the bed of the sea, he was guilty of negligence rendering him liable for injuries to a vessel caused by her settling on such rock with the falling of the tide.</p> <p>¶ 1. See Wharves, vol. 48, Cent. Dig. § 37.</p>

<p>1. Admiealtt— Collision — Libel in Fobma Paupebis.</p> <p>Where libelant, in a proceeding in admiralty for collision resulting in the loss of libelant’s sloop, tackle, apparel, and furniture, alleged that by reason of his poverty he was unable to defray the expense of litigation, and prayed that process might issue and be served in forma pauperis, as authorized by Act Cong. July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 700], and there was no proof that libelant’s sworn statement as to his poverty was false, the fact that he purchased the sloop for 8500 was insufficient to establish that he possessed property at the time the suit was instituted, or had acquired any since that time, justifying the court in requiring him to give security for costs.</p>

The only question that the board passed on was whether the protest which the importers had filed with the collector of customs satisfied the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp.

<p>1. Bankruptcy — Discharge—Opposition—Discontinuance—Collusion.</p> <p>Where, on an application for a bankrupt’s discharge, it appeared that certain creditors had opposed the discharge, and had applied for time to file specifications, but, though the time had expired, the specifications had not been filed, and the referee, in a supplemental report, had refused a certificate of conformity required by bankruptcy rule 10, the facts tended to create a iiresumption or a suspicion that some act had been done by or on behalf of the bankrupt to secure the discontinuance of the opposition, justifying the refusal of the bankrupt’s discharge pending a further report by the referee.</p>

Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of a decision of the Board of General Appraisers. The merchandise consisted of so-called “aumoniers,’’ imported by C. L. Tiffany at the port of New York, and classified under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 434, 30 Stat. 192 [U. S. Comp.

<p>In Admiralty. Upon a rule to show cause why clerk should not file a release, the libelant was permitted to amend his answer.</p>

<p>In Admiralty. Motion to take out fund in the registry denied.</p>

<p>1. Bankruptcy — Provable Debts — Loan by Wipe to Husband.</p> <p>A loan made by a wife to her husband from her separate estate is provable as a debt against his estate in bankruptcy without regard to its enforceability under the law of the state, the contract being valid in equity, by the principles of which courts of bankruptcy are governed; and there is no distinction in such respect between an estate to the wife’s separate use, as known to the chancery courts, and a separate estate created by statute.</p>

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

<p>X. pARTNüüsiap — Debts of Previous Firm — Liability—Evidence.</p> <p>A partnership agreement provided that the incoming partner should pay 82,500 in cash, and execute to the other partner, who had an established business, notes for the remainder of the purchase price of a half interest in the business, to be determined by an inventory thereafter to be taken. The original partner took sole charge of the financial and accounting part of the business. The inventory was not taken, and the notes were not executed, but the parties continued to do business as partners on an equal basis. The original partner represented to the incoming partner that his indebtedness only amounted to about $10,000, when in fact it exceeded $30,000; and shortly thereafter he borrowed $10,000 from defendant bank, which he represented to his partner was for the firm’s benefit, but which he in fact paid on his personal indebtedness to complainant bank, and thereafter, without his partner’s knowledge, executed two notes to complainant in renewal of other notes, a part of his personal indebtedness. Held, that the incoming partner did not agree to assume any part of the indebtedness of the old firm, and that the notes so renewed were not chargeable against the new firm’s assets in bankruptcy.</p> <p>2. Same — Notice.</p> <p>Where a bank had knowledge of facts putting it on inquiry as to whether a member of a firm largely indebted to the bank was authorized to execute notes in the firm name to secure such pre-existing indebtedness, the bank was not entitled to prove such notes as against the firm’s assets, in the absence of such authority, notwithstanding the partner executing the notes had implied power, as a member of an ordinary trading firm, to execute notes in the name of the firm.</p> <p>3. Same — Ratification.</p> <p>Where an incoming partner had no knowledge until a very short time before bankruptcy proceedings against the firm were instituted that his partner had executed firm notes to secure the partner’s pre-existing indebtedness to a bank, and the books of the firm, if examined by such partner, would not have disclosed the execution of such notes, such incoming partner did not ratify their execution, so as to justify their allowance as a claim against the firm’s assets.</p>

<p>1. Bantcbuptct — Effect op Appeal on Jukisdtction ip Dtstkict Coubt.</p> <p>Where an appeal has been duly taken and perfected under Bankr. Act July 1, 1898, e. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], from a judgment allowing or rejecting a debt, the district court is thereby-deprived of jurisdiction to further consider matters involved in the appeal, and cannot entertain a motion for a rehearing so long as the appeal is pending.</p> <p>¶1. ‘Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. O. A. 9.</p>

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

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

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

This was a suit on behalf of the United States for the recovery of penalties provided by Act Cong. March 2, 1893, c. 196, § 6, 27 Stat. 532, as amended by Act Cong. April 1, 1896, c. S7, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175], known as the “Safety Appliance Act.” The sections of the act involved are: “Section 1.

<p>In Equity. Suit for infringement of letters patent No. 633,9¿í, for a dredger for pulverulent material, granted to James W. Arrott, Jr., September 26, 1899, and cross-suit for specific enforcement of an alleged contract for the assignment of such patent to defendant. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 669,011 for a flat knit cap, and art of making same, granted to Nathan E. Kahn February 26, 1901. On final hearing.

<p>1. Patents — Anticipation—Packing.</p> <p>The Miller patent, No. 524,178, for a packing consisting of two wedges shaped sections, intended to slide upon each other, with a yielding cushion hack of one of said sections, by means of which the steam pressure transmitted to the sliding sections causes that side of the strip to widen, forming a tight joint, describes an effective and useful device; but the claims are not limited as to the materials to be used, and, the form of construction having been in use in a prior unpatented packing, the patent is void for anticipation.</p> <p>2. Same.</p> <p>Anticipation is not avoided because the anticipating structure, while me chanieally the same, is not so efficient as that of the patent, owing to the use in the latter of different and better materials, which are not, however claimed as a feature of the invention.</p> <p>3. Same — Unpatented Device — Extent oe Pbiob Use.</p> <p>To constitute an anticipation by an unpatented device, it is not necessary that it should have come into general use, but it is sufficient if it was in actual and practical use by a number of persons.</p> <p>¶ 3. See Patents, vol. 38, Cent. Dig. § 74.</p>

<p>In Equity. Suit for infringement of letters patent No. 439,086, for a coin purse, granted to Chester E. Albright October 28, 1890. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 675,693, for a rolling chair, granted June 4, 1901, and No. 35,043, for a design for such chair, granted September 3, 1901 — both to Harry E. Weisgerber. On final hearing.

<p>1. Patents — Infringement—Process of Making Logwood Extract.</p> <p>Tlie Austen patent, No. 491,972, for an improvement in the art of making coloring matter from logwood, which covers a process and the resulting product, the process consisting of adding to logwood extract an alkaline nitrite in the presence of water, causing a reaction between them, and evaporating the product to dryness, when it is commonly ground and put up in the form of a dry powder, held not anticipated, valid, and infringed.</p> <p>2. Same.</p> <p>Where a defendant charged with infringement of a process patent admits that Ms product is the same, and that in making it the same materials are used and steps taken as called for by the patent, a mere denial that the process followed is the same, without disclosing the one claimed to be used, is insufficient to negative infringement.</p>

<p>1. Patents — Descriptions—Forms—Extent.</p> <p>Where an inventor has placed his invention before the public in a form best fitted for practical use, and disclosed his conception of his invention, both in his description and in his claim, so as to accurately express his idea, he is entitled to the exclusive privilege of all other forms that can be embraced in the one claim, unless such other forms are disclaimed.</p> <p>2. Same — Ornamental Ropes — Infkingement.</p> <p>Patent No. 599,191, for an improvement in ornamental ropes or cords, issued to Franklin W. Oehrle, held not infringed.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. §§ 241, 371.</p>

In Equity. Suit for infringement of patent. On motion to dismiss for want of jurisdiction, and motion for costs to defendant on dismissal.

<p>1. Patents — Dismissal for Want of Jurisdiction — Costs.</p> <p>Where a bill for infringement is dismissed for want of jurisdiction, costs cannot be awarded to defendant.</p> <p>¶. See Costs, vol. 13, Cent. Dig. § 16.</p>

<p>In Equity. Suit for infringement of letters patent No. 392,387, for an electrical measuring apparatus, granted to Edward Weston November 6, 1888. On motion for preliminary injunction.</p>

<p>In Equity. Suit for infringement of letters patent No. 520,429, for an electric battery, granted to S. H. Hoggson May 29, 1894, and No. 617,592, for an electrical hand lamp, granted to David Misell January 10, 1899. On final hearing.</p>

<p>1. Railroad — Issuance of Bonds — State Statutes — Constitutionality— Obligation of Contracts — Impairment.</p> <p>Act S. C. 1882 (IS St. at Large, p. 216), chartering the G. & P. R. R. Co., authorized, townships interested in such construction to subscribe for stock and issue bonds in payment therefor, and section 9 (page 217) thereof provided for the payment of interest on such bonds by authorizing the county auditor to assess and the county treasurer to collect such tax on the property of the township as should be necessary to pay such interest. By Act S. C. 1885 (19 St. at Large, p. 240) the former act was amended so as to provide that all counties and the townships in such counties along the line of such railroad or interested in its construction were created bodies politic and corporate, with necessary powers to carry out the provisions of the act, and subject to all liabilities growing out of the same, and the county commissioners of the respective counties were declared the corporate Agents of the counties and townships so incorporated and situated within the limits of such counties. By constitutional amendment (23 St. at Large S. C. p. 1227), the state Constitution of 1895, art. 7, § 11, providing that the several townships of the state should constitute a body-politic and corporate, etc., was amended so as to provide that such section should not apply to certain townships which had issued bonds in payment of stock in the railroad under the acts of 1882 and 1885, and that “the corporate existence of such townships be and the same is hereby destroyed and all officers of such townships are abolished and all corporate agents removed.” Held, that such constitutional amendment was intended to impair the means provided by law for the payment of the bonds so issued, and to that extent was obnoxious to Const. U. S. art. 1, § 10, as Impairing the obligation of contracts.</p> <p>2. Same — Construction.</p> <p>Since the county auditor and treasurer, authorized by Act S. C. 1882 (18 St. at Large, p. 216) to levy and collect the tax for the payment of such bonds, were not officers or agents of the townships issuing the bonds in any sense, and the acts they were empowered to perform could be legally done independent of the corporate existence of the township, the-abolition of the corporate existence of a township which had been organized as a corporation only for the purposes of the act did not deprive such officers of authority to levy the tax to pay such bonds issued by it.</p> <p>3. Same — Boundaries of Township — Alteration—Effect.</p> <p>The fact that after the issuance of bonds under such acts the township issuing the same became a part of another county by means of a change in the boundaries of certain counties was immaterial, since the township’s obligation to pay the bonds attached to the territory included in the township which issued the bonds, and passed with such territory into the county to which it was added.</p>

<p>In Bankruptcy.</p> <p>This is a motion by Albert K. Hiscock, as receiver and as trustee of the estate in bankruptcy of J. M. Mertens & Co., to restrain the American Woolen Company of New York from further prosecuting an action brought by said company against said Albert K. Hiscock as such receiver and as such trustee to recover damages for the alleged conversion by said Hiscock as such receiver and as such trustee of certain woolen goods in the piece, sold by said American Woolen Company to said J. M. Mertens & Co., and which goods formed a part of the stock in trade of said J. M. Mertens & Co., and were in the possession of said company, commingled with other goods, at the time of the filing of the petition herein, and at the time of the appointment of such receiver by this court, and at the time he took possession of same as such receiver under and pursuant to the order of this court, and which possession was taken before notice was given any one that the sale thereof by the said American Woolen Company to the said firm of J. M. Mertens & Co. was rescinded. Said goods were sold by said trustee, it is alleged, with the consent of said American Woolen Company, and the proceeds are now in his hands, subject to the order of this court.</p>

<p>1. Bankruptcy — Partnership—Joint Debts oe Partners.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 5f, 30 Stat. 548 [U. S. Comp. St., 1901, p. 3424], joint debts of partners composing a bankrupt partnership cannot be proved against the partnership estate, to share on an eguality with firm creditors. ' ■</p> <p>2. Same — Joint Notes oe Partners — Evidence to Show Liability oe Firm.</p> <p>Parol evidence is admissible to show that joint notes signed by the members of a bankrupt partnership are in fact firm debts.</p> <p>3. Same — Evidence Considered.</p> <p>A bank made a loan of money to each of the two members of a partnership, taking in each case a note signed by both partners. The proceeds were passed to the individual accounts of the partners, respectively, and were by them checked to the partnership account and used in the firm business. Held, that the notes did not constitute debts of the firm provable against its estate in bankruptcy; it having received the money from the partners, and not from the bank.</p> <p>4. Same — Evidence—Materiality.</p> <p>The testimony of the cashier of a bank that loans made by the hank on notes signed by members of a bankrupt partnership were made to the firm, and not to the partners, is not admissible to establish such fact, which must he determined from the facts of the transaction, and not from the intention of the witness.</p> <p>¶ 2. See Evidence, vol. 20, Cent. Dig. § 1909.</p>

In Bankruptcy. On motion of petitioning creditors for temporary injunction against the Hawkeye Band Company and Myrtle Moody, and motion of said land company for release of property in the custody of the receiver.

<p>1. Copyrights — Retail Price — Control—Notice.</p> <p>Where publishers of a copyrighted book printed on the page immediately following the title page of each copy, underneath, the notice of copyright, a notice that the price of the book at retail was $1 net, and that no dealer was licensed to sell it at a less price, and that such a sale would be treated as an infringement of the copyright, such notice did not entitle the publishers to control the retail price of the book, so as to render a sale of the book at a reduced price an infringement of their copyright.</p>

<p>In Equity.</p> <p>These causes are now before the court upon the petition of Robert I. Mason, receiver, filed herein on the 2d day of March, 1904, and upon the supplemental and ancillary bill subsequently filed on the 26th of March, 1904, the demurrer and plea of the Newport News & Old Point Railway and Electric Company to the said first-named petition, and sundry affidavits filed by the parties in support of their respective contentions arising on said petition and ancillary bill: it being understood that said plea and demurrer and affidavits are to be read and considered as well upon the questions raised by the said bill, as also the said petition; the question at issue between the parties being as to the right of the Newport News & Old Point Railway Company to erect and maintain a certain fence and gates on and extending along Bay View avenue to and across Chesapeake Boulevard, at its intersection with said Bay View avenue at Buckroe Beach, in the county of Elizabeth City, and extending therefrom to and into the waters of the Chesapeake Bay. It is charged that the said fence and gates were erected by the said Newport News Company in the nighttime. The Newport News Company and the Hampton Roads Company, the affairs of the last named of which are being administered through receivers appointed by the court, are the owners and operators of competing lines of electric railway extending from Newport News, Va., to and through the town of Hampton, to Buckroe Beach, a summer watering place and resort for excursionists, on Chesapeake Bay, in said Elizabeth City county. Each of said companies are Virginia corporations, chartered and organized under the laws of the state of Virginia, and have their separate tracks down what is known as “Bay View Avenue,” to a point near to where said avenue intersects with Chesapeake Boulevard, and along the western line of the public grounds and water front at said place. The Newport News Company is the owner of a 10-acre tract of land lying at the intersection of the said two avenues, fronting immediately to the western line of said Chesapeake Boulevard, the tracks of the Newport News Company being on the southern side of said Bay View avenue, and next to its 10-aere tract of land, which fronts also on said avenue; and upon its property so situated at the intersection of these two avenues the Newport News Company now and for some years past has maintained a pleasure resort, consisting of hotel, pavilion, and places of amusement and entertainment. In the summer of 1903 the said Hampton Roads Company had secured its right of way from the Buckroe Beach Land Company and the Woodfin heirs, along Bay View avenue and Bay View avenue extended, to the westerly line of Chesapeake Boulevard, and effected its terminus there, making considerable expenditures to that end. Some weeks after this the Newport News Company secured a lease of all their interest in a certain triangular piece of land from the heirs of the late P. T. Woodfin, extending across the intersection of Bay View avenue extended and Chesapeake Boulevard, which land lay between the terminus of the Hampton Roads Company, on the west line of Chesapeake Boulevard, and that portion of Chesapeake Boulevard which lies in front of the property owned by the Newport News Company, and between said terminus of the Hampton Roads Company and the bathing beach or water front in the bill mentioned. After securing the lease referred to, the Newport News Company proceeded in the nighttime to erect the fence and gates aforesaid along said triangle, and extending in and along and intruding upon Bay View avenue. The building of this fence shortly preceded the appointment of the receiver herein, and this proceeding was taken in these causes after the appointment of the receiver herein, with the view of preventing the maintenance of the fence and closing of the gates which, it is claimed, will in effect destroy the property operated by the receivers, since the maintenance of such fence and gates will result in cutting off the passengers by the Hampton Roads Company from reaching the public grounds and bathing beach, and land them, in effect, in a cul-de-sac. The receivers insist that the fence was constructed without authority; that the Newport News Company acquired the pretended right so to do solely for the purpose of destroying the property in their hands; and that the lessors from whom they claim to have leased the same had no title to the land leased, their ancestor, P. T. Woodfin, having heretofore conveyed and dedicated the property sought to be leased to the public as a highway; and that both they and the company leasing from them were fully aware of this f>i<+ at the time of the execution of the said lease, and the same was recognized in the deed of lease or quitclaim deed made to the Newport News Company, 'llie Newxiort News Conqiany, on the other hand, contend that the lease of said property is valid; that they leased said land and erected the fence in question because it was necessary for the orderly conduct of their business at the xfieasure resort aforesaid.</p>

<p>1. Mutual Benefit Insurance — Contracts—Breacii—Rescission—By-Laws.</p> <p>Where an incorporated mutual benefit association, without legal right so to do, renounced liability on certain of its insurance contracts by the adoption of a by-law reducing the amount payable on such contracts below that which it had contracted to pay, and by making assessments on the new basis and notifying members of the reduction, a member who had performed the contract on his part, and who had not consented to such reduction, might, at his election, treat the contract as rescinded, and sue to recover the amount paid.</p> <p>2. Same — Laches—Chance of Position.</p> <p>Where defendant mutual benefit association renounced its liability to pay the amount specified in plaintiff’s contract of insurance, the fact that during three years which elapsed between such breach of contract and the date plaintiff elected to rescind the same, more than 3,000 members of the association had died or withdrawn, and that 325 new members had joined the association without knowledge of plaintiff’s claim to recover the amount paid on his contract so broken, did not constitute such a change of position by defendant as to preclude plaintiff from recovering because of laches.</p>

<p>1. Tkade-Maeks — Names of Games.</p> <p>The inventor of a game, by giving it a distinct name, and selling it under such name, may obtain a trade-mark in the name, though he never copyrighted or patented the game.</p> <p>2. Same — Generic Names.</p> <p>The generic name of a thing is not the subject of a trade-mark.</p> <p>3. Same — Ownership.</p> <p>Defendants’ assignor invented a game to which he applied the name “Flinch,” after which, under an arrangement with various assignors of complainant, the game was put up in boxes, and sold with indifferent success ; and, on the failure of one of the firms owning the business, to which the complainant succeeded, its assets, including its trade-marks, were sold to complainant under a judicial sale. The original inventor of the game, however, continued to manufacture and sell the same; and thereafter he and his executrix transferred all his rights and ownership, including the trade-mark in the name of “Flinch,” to defendant. Held, that complainant and its assignors, by simply making and selling the game, could not acquire a trade-mark in the name as against defendants.</p> <p>¶ 2. See Trade-Marks and Trade-Names, vol. 46, Cent. Dig. § 11.</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p>

<p>1. Bankruptcy — Mortgages—Lien—Extinguishment.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 67d, 30 Stat 564 [U. S. Comp. St. 1901, p. 3451], providing that liens given or accepted in good faith, etc., which have been recorded according to law, shall not be affected by the act, where real estate of a bankrupt was ordered to be sold subject to a first mortgage, and the trustee, who was the holder of a second mortgage thereon, obtained special leave to bid as a lien creditor, and the referee’s original order of sale expressly provided that the land should be sold subject only to the first mortgage, the lien of the second mortgage was divested by the sale.</p> <p>2. Same — Taxes—State Statutes — Construction.</p> <p>Act Pa. June 4, 1901, § 2 (P. L. 364), providing that all taxes that may thereafter be lawfully imposed or assessed on any property shall be a first lien thereon, etc., and that such lien shall have priority to, and be fully paid and satisfied out of the proceeds of, any judicial sales of the property, etc., is prospective only, and does not give priority to taxes over a mortgage which was a lien before its passage.</p> <p>3. Same — Order of Sale — Liens—Vacation.</p> <p>Where real estate of a bankrupt was sold subject only to a first mortgage thereon, such sale operated to divest a tax lien on the property, as against a purchaser on the faith of the record, notwithstanding Act Pa. June 4, 1901, § 32 (P. L. 375). by which all taxes are made a continuing lien on property, notwithstanding a judicial sale, unless the proceeds of the sale are sufficient to pay them.</p> <p>4. Same — Assets—Payment of Claims — Priority—Taxes.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 64, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], providing the order of priority in which debts or charges against the estate of a bankrupt are to be paid, and declaring that the court shall order the trustee to pay all taxes legally due and owing by the bankrupt in advance of the payment of the dividends to creditors, where state taxes assessed on the property of a bankrupt were not payable out of the proceeds of the bankrupt’s real estate, they were entitled to payment as a preferred claim from the proceeds of a sale of the bankrupt’s personalty, whether they were assessed prior to, or during the continuance of, the bankruptcy proceedings.</p> <p>5. Same — Proof of Claim.</p> <p>Since taxes assessed against the property of a bankrupt during the administration of his estate are matters of public record, they need not be proved as a claim against the bankrupt’s estate in order to be allowed.</p> <p>(>. Same — Partnership—Exemptions.</p> <p>Where a partnership is adjudged a bankrupt, in Pennsylvania, the partners are not entitled to exemptions out of the partnership property.</p> <p>7. Same — Selection.</p> <p>Where bankrupts failed to make their selection of specific articles for their exemptions at the time of the filing of their schedules, and to have the property set off to them by the trustee, to be reported by him, with their estimated value, to the court, for its approval, as required by Bankr. Act July 1, 1898, c. 541, § 7a (8), 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425], and section 47a (11), 30 Stat. 557 [U. S. Comp. St. 1901, p. 3439], the trustee had no authority to pay the exemption to the bankrupts in cash out of the proceeds of a sale of bankrupt property, although unanimously assented to by certain creditors present at a meeting before the referee.</p> <p>8. Same — Tax Collectors — Estoppel.</p> <p>AYliere claims for taxes had been filed against a bankrupt’s estate, the tax collectors had no power to prejudice the municipalities which they represented by agreeing that the bankrupt’s exemptions might be paid to them, and hence they were not estopped from subsequently repudiating such agreement.</p> <p>9. Same — Operation of Business by Trustee — Deficit.</p> <p>Where a bankrupt’s hotel was operated during the pendency of bankruptcy proceedings, first under the direction of the court, through a receiver, and afterwards by the creditors through the bankrupt's trustee, a deficit made up of premiums paid for insurance on personal property and on the hotel, together with an amount paid for a liquor license necessary to maintain the good will and custom of the hotel, and the cost of advertising the sale of the property, constituted a preferred claim on the proceeds of the sale.</p> <p>¶ 2. See Taxation, vol. 45, Cent. Dig. § 946.</p> <p>10. Same — Costs.</p> <p>Where a sale of a bankrupt’s real estate was made subject only to a first mortgage thereon, the proceeds of the sale should be applied to the satisfaction of other liens on such real estate, undiminished by anything except the costs of the sale, etc., to the exclusion of the costs of administering the bankrupt’s estate.</p>

<p>1. Post Office — Fraud Orders — Postmaster General — Jurisdiction—Pleadings.</p> <p>Rev. St. 3929 [U. S. Comp. St. 1901, p. 2086], provides that the Postmaster General, on evidence satisfactory to him that any person “is engaged” in conducting any scheme or device for obtaining money through the mails by means of false or fraudulent pretenses, may instruct postmasters to return mail addressed to such persons, marked with the word “Fraudulent,” and section 5480 [U. S. Comp. St. 1901, p. 3696] declares that if any person, having devised or intended to devise any scheme or artifice to defraud, etc., deposits any letter or paper in the post office for the furtherance of such scheme, he shall be guilty of an offense. Held, that an averment in the indictment that ,the matter pending before the Post-Office Department was whether a corporation had violated section 5480 did not show want of jurisdiction in the Postmaster General to hear and determine whether the corporation should be denied the use of the mail service, such averment being evidential only of the ultimate jurisdictional fact whether the corporation was then fraudulently using the mail. Held, further, that such averment, if faulty, was cured by the later averment that the inquiry was “to the end and for the purpose” of enabling the Postmaster General to ascertain, find, and determine whether he should exercise the power conferred upon him by section 3929, and forbid the use of the mails to the corporation.</p> <p>2. Criminal Law — Senators—Bribery—Indictment—Surplusage.</p> <p>Where an indictment in a prosecution of a United States senator for receiving pay for services rendered to a client before the Post-Office Department, in violation of Rev. St. § 1782 [U. S. Comp. St. 1901, p. 1212], charged, that accused rendered services before such department; that he received compensation therefor; that the United States was interested in the matter in relation to which the services were rendered; and specifically described the services and compensation, and alleged the time it was received — it was sufficient, and all other averments tending more specifically to describe the nature of the matter in process of investigation was surplusage.</p> <p>3. Same — Jurisdiction oe Postmaster General.</p> <p>Where the Postmaster General had jurisdiction, in the abstract, of a proceeding to determine whether a certain corporation should be longer permitted to use tbe mails, and whether a “fraud order” should be Issued against it, such jurisdiction was sufficient for the purposes of a prosecution of a United States senator for taking compensation from such corporation for services rendered in representing it in endeavoring to induce the Postmaster General to render a decision favorable to the corporation in such proceeding, in violation of Rev. St. U. S. § 1782 TU. S. Comp. St 1001, p. 1212],</p> <p>4. Same — Statutes—Construction.</p> <p>An inquiry authorized by Rev. St. § 3929 [U. S. Comp. St. 1901, p. 2686], to he prosecuted by the Post-Office Department for the purpose of determining whether a corporation is engaged in conducting a fraudulent scheme or device by means of the post-office establishment, is “a matter or thing” concerning which a senator of the United States is precluded from rendering services for a pecuniary compensation by Rev. St. § 1782 [U. S. Comp. St. 1901, p. 1212],</p> <p>5. Same — Interest.</p> <p>An inquiry by the Post-Office Department for the purpose of determining whether a corporation has been guilty of a fraudulent use of the mails, and whether a fraud order shall be issued against it, is a proceeding in which the United States is “interested,” within Rev. St U. S. § 1782-[U. S. Comp. St. 1901, p. 1212], prohibiting a United States senator from receiving compensation for services rendered by him to any person or any bureau of the United States in relation to a matter in which the United States is interested.</p>

<p>1. Insurance — Action on Policy — Affidavit of Defense — Documents—Copies.</p> <p>Where, in an action on a policy of life insurance, the affidavit of defense charged false answers and representations in the application for the policy and in certain letters written between the parties, but failed to contain a copy of such application and letters, it was insufficient.</p> <p>2. Same — Provisional Policy — Rejection of Risk — Notice.</p> <p>Where a provisional certificate of insurance for 90 days provided that, if the officers of defendant company should not agree to continue the insurance during said 90 days, they might terminate it any time prior to the expiration of that term, and in such case the provisional policy should be null and void; but that, if the application for insurance was accepted by defendant’s officers, a permanent iioliey should he made out and delivered to the insured as soon as may be, and the amount paid for the provisional policy credited on the first year’s premium on the permanent policy, and defendant gave no notice to insured within the 90 days that it elected to terminate the insurance, and took no steps to return the premium paid for the provisional policy, at the end of that period insured was entitled to assume that his permanent policy took effect, and was in force at his death shortly thereafter.</p> <p>¶ 1. See Insurance, vol. 28, Cent. Dig. § 16H.</p>

<p>1. Shipping — Injuries to Stevedores — Negligence.</p> <p>Plaintiff, an employé of the stevedore engaged in discharging a vessel, was injured by the sudden descent of a tuh loaded with iron ore after it had been raised about 14 feet. The tub was raised by means of a steam winch in charge of a seaman who had knowledge that men were working below, and that a sudden lowering of the bucket for the entire distance would probably result in injury to them. He was in the habit, after raising the bucket part way, to lower it a few feet, to steady it, but in this instance it descended suddenly, as if it “had been dropped.” The signalman testified that proper signals were given, but that the winchman disregarded the signals, and by mistake pulled the lever to lower the bucket. He, however, testified that he received the wrong signal. Held, that the injury was occasioned by the negligence of the winchman.</p> <p>2. Same — Incompetent Servant.</p> <p>Where a negligent person is placed by a master in a position requiring care and caution, such person is incompetent, and the master is liable therefor.</p> <p>3. Same — Fellow Servants.</p> <p>A sailor placed at the winch by the officers of a vessel, in compliance with the charter party requiring the ship to furnish cranes and winches, with necessary steam power and hands for unloading, is not a fellow servant of the employes of a stevedore engaged in discharging the vessel.</p> <p>¶ 3. Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Canadian Pac. Ry. Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286.</p> <p>See Master and Servant, vol. 34, Cent. Dig. § 485.</p>

<p>In Equity. Granting a preliminary injunction.</p>

<p>1. Bankbtjptcy — Assignment of Claims — Act of 1867.</p> <p>General order No. 34 of the general orders in bankruptcy (89 Fed. xiii, 32 C. C. A. xxxiii) adopted under the act of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517) which provided that the register should subrogate the assignee of a claim “upon the filing of satisfactory proof of the assignment,” does not require any particular form of assignment, and the indorsement and delivery of notes which had been proved and allowed against an estate by the creditor to the assignee of the estate, with the intention that it should transfer the debt in payment of a personal obligation to the assignee, will be given effect as an assignment, as against a written assignment by the creditor several years afterward, made through a mistake, and in the belief that the claim had never been transferred ; it being shown that the first transfer was given and received in good faith.</p>

<p>On Application for Review of a Decision of the Board of General Appraisers.</p> <p>These proceedings relate to a decision (In re Riggs, G. A. 5,374, T. D. 24,562) affirming the assessment of duty by the collector of customs at the port of New York on an importation of George Riggs & Co.</p>

<p>Appeal by the Importers from a Decision of the Board of United States General Appraisers.</p> <p>On application for review of a decision of the Board of General Appraisers. These proceedings were brought by Hoeninghaus & Curtis, and relate to merchandise imported by them at the port of New York. The assessment of duty by the collector of customs at that port was affirmed by the Board of General Appraisers. In re Hoeninghaus, G. A. 5,335, T. D. 24,423.</p>

On Application for Review of a Decision of the Board of General Appraisers. These proceedings were brought by the United States in the matter of an importation by Pearson & Emmott, with regard to which the assessment of duty by the collector of customs at the port of New York had been reversed by the Board of General Appraisers. Note G. A. 4,555, T. D. 21,595, and U. S. v. Cummings (C. C.) 65 Fed. 495.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review overruled a protest made by George M. Dickson against the action of the collector of customs at the port of New York in re-liquidating an entry under a decision of the Board of General Appraisers.

On Application for Review of a Decision of the Board of General Appraisers. These proceedings were brought by Gartner & Friedenheit to secure the reversal of an affirmance by the Board of General Appraisers {G. A. 5,460, T. D. 24,756) of the assessment of duty by the collector of customs at the port of New York.

<p>1. Customs Duties — Classification—Eerrociirome—Ferrotungsten—FereoMOLYBDENUM — FERBOVANADIUM — FEEBOMAN GANESE — SIMILITUDE — UNwrottght Metals.</p> <p>Held, that certain alloys of iron and mineral substances known as ferrochrome, ferrotungsten, ferromolybdenum, and ferro vanadium are not dutiable as “metals unwrought,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 183, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1645], but are dutiable at the rate applicable to the ferromanganese, enumerated in paragraph 122 of said act (30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]), which they resemble in quality and use, within the meaning of the so-called similitude clause in section 7 of said act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1694]).</p>

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

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

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

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

<p>In Equity. Suit for infringement of letters patent No. 376,837, for an improvement in air brakes, granted to George Westinghouse, Jr. On exceptions to master’s report.</p>

<p>1. Removal of Causes — Effect on Attachment.</p> <p>An attachment granted by a state court in a suit in which service was made by publication cannot be vacated by the federal court on removal, because the action is one in which such service is not provided for by the federal practice, but under section 4 of the removal statute (Act March 3, 1875, c. 137, 18 Stat. 471 [U. S. Comp. St. 1901, p. oil]) it must stand as it would in the state court, whatever effect the failure to obtain personal service may have on its efficacy.</p>

In Equity. Suit for specific performance of contract. Suit in equity to enforce specific performance of an alleged oral contract for the purchase by plaintiff from defendant of 510 cows. It was commenced in the district court of Iowa in and for Johnson county, and removed to this court by the defendant upon the ground of diverse citizenship of the parties.

<p>1. Collision — Steamer and Tug and Tow Meeting — Liability op Tug.</p> <p>Where the navigation of a fleet consisting of a tug and two barges in tow, one alongside having her own master and crew and the other on a line, is in charge of a pilot employed by the owners of the barges, who is on the first barge and directs all movements, the tug is not responsible for the position of the fleet in the channel, nor for the failure of the barges to carry proper lights, and cannot be held liable for a collision between the leading barge and a meeting steamer, resulting from a violation of the rules in either of such resxieets.</p> <p>2. Same.</p> <p>Conflicting evidence considered, in respect to a collision in the evening between libelant’s steamer, xmsing down the Mississixipi opposite New Orleans, and a barge alongside of a tug imssing up, and held not to sustain the burden resting on libelant to show fault on the part of the tug, either in relation to the lights carried, the signals given, or the position of the tow in the river, but to show by a prex>onderance of testimony that in all of such resxiects the tug was without fault, and tl»at the collision occurred through the fault and negligent navigation of the steamer.</p> <p>3. Same — Lookout.</p> <p>A steamer passing down the Mississippi in front of New Orleans in the evening, where other vessels are liable to be encountered, should have a lookout other than the master, who has also other duties.</p> <p>¶ 3. See Collision, vol. 10, Cent. Dig. §§ 143, 211.</p>

<p>1. Towage — Duty op Tugs — Stranding of Tow.</p> <p>Where a large steamer, whose master was unacquainted with the harbor at that point, having loaded at a dock in Buffalo, employed two tugs to take her out beyond the inner breakwater through a narrow and crooked channel, the duty rested on the master of the leading or pilot tug to direct the movements of the steamer required for her safe passage, and his failure to seasonably signal her to start her engines forward after swinging her bow around a bend in the channel, by reason of which the current carried her against the side of the channel, where she stranded, was a fault which renders the tug liable for the resulting damages, where the signals given were promptly obeyed by the steamer, which was not required, under the circumstances, to take the initiative, and would not have been justified in so doing.</p> <p>2. Same — Burden of Proof.</p> <p>Where two tugs undertook to take a steamer out from her dock through a well-known and commonly used channel, and she stranded against one side of the channel, although it was shown that she promptly obeyed all signals from the leading tug, the presumption is that such stranding was due to a fault of one or both of the tugs.</p> <p>3. Same — Joint Service by Two Tugs — Liability of One for Eault of Other.</p> <p>Two tugs belonging to the same owner engaged to tow a steamer, and which co-operated in the service and in directing the movements of the steamer, are both liable for her stranding through the negligence of either.</p> <p>¶ 3. See Towage, vol. 45, Cent. Dig. § 12.</p>

In Admiralty. Suit in rem to recover damages for injuries inflicted upon a vessel at anchor by another vessel dragging her anchor in a gale. Heard on the merits. Payment of damages decreed, on the ground that the drifting vessel was in fault for not being more securely moored.

<p>In Bankruptcy. On rule against bankrupts for contempt for failure to surrender property to the trustee.</p>

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

<p>Appeal by the Importers from a Decision of the Board of United States General Appraisers.</p> <p>On application for review of a decision of the Board of General Appraisers. The decision in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hall & Bishop.</p>

Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of decision of the Board of General Appraisers. These proceedings were brought by J. R. Simon & Co. and B. Ulmann & Co. for review of two decisions of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 5,329, T. D. 24,373, and G. A. 4,643, T. D. 21,944.

Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of a decision of the Board of General Appraisers. The decision under review affirmed the assessment of duty by the collector of customs at the port of New York on an importation by W. Nishimiya. Note G. A. 5,334, T. D. 24,410, and Murphy v. Arnson, 96 U. S. 131, 24 E. Ed. 773.

<p>Demurrer to Complaint.</p>

<p>In Equity. On exceptions to the answer for insufficiency.</p>

<p>1. Customs Duties — Market Vai/ue — Remission of Local Taxes — Droit de Ville — Octroi Tax.</p> <p>Held, in regard to merchandise imported from France, that its “market value,” as defined in Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Comp. St. 1901, p. 1924], does not include the amount of certain internal revenue imposts of that country known as the “octroi tax” and the “droit de ville,” which are not general in their application, but vary with the locality, and which are not collected if the merchandise Is exported.</p>

<p>1. Bankruptcy — Courts—Ancillary Jurisdiction.</p> <p>"Where proceedings were bad in a federal District Court other than that in which a corporation was adjudged a bankrupt, by which a receivership was extended to property located in such other district, and various other orders were made by such court, it had ancillary jurisdiction to grant a creditor’s application for the examination of witnesses as authorized by Bankr. Act July 1, 1898, c. 541, § 21a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431].</p>

Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of a decision of the Board of General Appraisers. The decision under review affirmed the decision of the collector of customs at the port of New York in assessing duty on certain merchandise imported by George Lueders & Co. Note In re Parke, G. A. 4,845, T. D. 22,755.

<p>1. Customs Duties — Classification—Soap Pencils — Unenumerated 'Articles.</p> <p>So-called soap pencils, composed of wood and soap, soap being the component material of chief value, are dutiable as unenumerated manufactured articles, under Tariff Act July 24, 1S97, c. 11, § 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].</p>

<p>1. Removal op Causes — Waiver op Right — Filing Answer and Motion to Dissolve Injunct:on.</p> <p>The filing by a defendant in a state court of an answer and a motion, supported by affidavits, for the dissolution of a preliminary injunction or restraining order which had been granted ex parte, and the hearing of such motion on ex parte affidavits by the judge in chambers, where he had no power to determine any question on the merits, do not preclude the defendant from removing the cause where his petition therefor was presented before the time when, by the laws of the state or the rules of the court, he was required to plead.</p> <p>2. Eminent Domain — Condemnation Proceedings — Eppect op Unauthorized Entry.</p> <p>Shannon’s Code Tenn. §§ 1844^-1807, providing for the condemnation of right of way by railroad companies, do not authorize an entry on the land without consent of the owner until his compensation has been ascertained and either paid or secured, unless, perhaps, for the purpose of making a survey; and a company can acquire no rights by going upon the land and commencing construction work without the owner’s consent after it has filed a petition for condemnation.</p> <p>3. Same — Priority op Right — Unrecorded Conveyance.</p> <p>A statutory proceeding for the condemnation of right of way for railroad purposes is but a substitute for its acquisition by contract, and the filing of a petition for condemnation by a railroad company gives it no right as against another company, which previously obtained a deed from the owner for the same purpose, although such deed was not recorded, and especially where, as by the Tennessee statute, it is expressly provided that such proceedings shall affect only the interests of the parties thereto and unborn remaindermen, and the grantee company is not a party.</p> <p>4. Same — Preliminary Survey.</p> <p>There being no statute in Tennessee requiring a survey before the institution of proceedings to condemn right of way for railroad purposes, or authorizing the recording of surveys, such a survey gives no priority of right as against another company which subsequently acquires right of way over the land by conveyance from the owner.</p> <p>5. Same — Executory Contract — Statute op Frauds.</p> <p>A contract for the sale or conveyance by a landowner of right of way to a railroad company, although in parol and executory, is good as against another company which subsequently institutes proceedings for condemnation of the same land, with notice that such an agreement had been made, such company not being an innocent purchaser protected by the statute of frauds.</p> <p>¶ 1. See Removal of Causes, vol. 42, Cent. Dig. § 10.</p>

This is a suit to avoid 44 patents issued under the stone and timber act of June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901. p. 1545], and all conveyances of the patented lands or of the timber upon them. The patentees and their immediate and remote grantees are defendants and appellees. The suit was commenced on April 5, 1902.

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

<p>1. Federal Courts — State Statutes — State Decisions.</p> <p>Where an action in the federal court depends on the construction of a state statute providing for the sale of state lands, the federal court is required to adopt the construction placed on the statute by the highest court of such state.</p> <p>2. Same — Public Lands — Sale—Patents—Statutes—Construction.</p> <p>Rev. St. Ivy. e. 102. § 3, provides that any person who wishes to appropriate any vacant and unappropriated lands, on application to the county court of the county in which the same lies, paying at such price as the court may allow, not less than $5 per 100 acres therefor, may obtain an order of court authorizing him to enter and survey any number of acres of such land in the county, not less than 25 nor more than 200. Held, following the decisions of the Kentucky Court of Appeals, that such act did not preclude the survey of several tracts of 200 acres each by the same person, and that a patent for lands so surveyed was not void on its face because it conveyed more than 200 acres.</p> <p>¶ 1. State laws as rules of decision in federal courts, see notes to Griffin v. Wheel Co., 9 C. C. A. 548; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>See Courts, vol. 13, Cent. Dig. §§ 957, 959.</p>

This is a bill to remove a cloud from the title to a tract of mineral land situated in Scott county, Tenn. The land in question is wild mountain land, situated in the Cumberland Mountains, and has little or no value, save for its timber and minerals. The plaintiffs are in possession and claim title in fee through' conveyance made by one Richard Slaven, under whom the defendants also claim the mineral interest in said lands.

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

<p>1. Trial — Direction of Verdict.</p> <p>When the evidence leaves the material facts admitted or undisputed, and when the evidence leaves the material facts and the deductions from them of such a conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, it is its duty to instruct the jury to return it.</p> <p>When there is a substantial conflict in the evidence relating to the material facts, and when fair and rational minds may well draw different conclusions from established facts, the court should submit the issues to the jury.</p> <p>2. Injury to Railroad Ekployé — Directing Verdict.</p> <p>A rainstorm of extraordinary severity prevailed at Elma from 6 to 7 in the evening, and washed out the roadbed three-quarters of a mile south of that station. The sectionmen in charge of the section south from Elma and a telegraph operator were there. The heaviest portion of the storm ceased about 7, but lighter rain followed. The plaintiff, an engineer, was running north from Oelwein to Elma. He left Oelwein at 5. There was no storm south of New Hampton 15 miles from Elma. He passed that station at 7:30. Oulverts and creeks were full of water, and low grounds were flooded at New Hampton and Alta Vista, a station four miles south of Elma. About 800 feet south of the washout a band of Italian trackmen attempted to warn the plaintiff of his danger, which they had discovered. But he did not observe their signals, or did not understand them. Neither the sectionmen nor the telegraph operator took any steps to patrol the track to discover its condition or to warn the enginemen of their danger before the plaintiff ran into the washout a few minutes past 8 in the evening, although they were at Elma, an hour had passed after the heaviest rain had ceased, and the washout was within a mile of the station.</p> <p>Held, neither the absence of negligence of the sectionmen and telegraph operator, nor the contributory negligence of the plaintiff, was so clear that it was the duty of the court to give a peremptory instruction for the defendant.</p> <p>3. Charge — Refusal of Request Embodied in Charge.</p> <p>Where a rule or principle of law is clearly declared by the court in its general charge, it is not error to refuse to repeat it in the words of counsel.</p> <p>4. Charge — Refusal of Request Containing Sound ai;d Unsound Propositions.</p> <p>Where a request for an instruction contains several propositions of lawj any one of which is unsound, it is not error to refuse it.</p> <p>(Syllabus by the Court.)</p> <p>¶1. See Trial, vol. 46, Cent. Dig. § 377.</p>

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

This appeal challenges a decree which sustained a demurrer and dismissed a bill exhibited by Edwin F. Brown, receiver of the First National Bank of Sedalia, against John S. Arnold, for the purpose of enforcing specific performance of a stipulation made between Parry L. Deweese, the former receiver of this bank, and James T. Montgomery and William M. Williams, the attorneys for Arnold, to the effect that the case of Deweese, receiver, against Arnold should abide the result of…

<p>1. Collision — Appeal—Decision—Review.</p> <p>Where, in an action for damages for collision at sea, the trial judge had the opportunity of seeing the witnesses and determining their credibility from their manner and appearance, his decision will not be reversed on appeal unless it clearly appears to be contrary to the evidence.</p> <p>¶1. See Admiralty, vol. i, Cent. Dig. § 770.</p>

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

<p>1. Patents — Conditional License to Usees — Contributory Infringement,</p> <p>It is within the right of the owner of patents for machines used by retail dealers to fasten buttons on shoes for customers to furnish such machines to users, without charge, under a license which permits their use only with wire purchased from such owner; and one who, with knowledge of such restriction, manufactures and sells to such users wire put up on spools in the exact form required for use on such machines, and which is suitable for no other use, with the intention that it shall be used on such machines, is liable as a contributory infringer.</p> <p>2. Same — Suit for Infringement — Jurisdiction.</p> <p>A suit which raises a question of infringement is one arising under the patent law, and the fact that the patentee may also have a remedy by action for breach of contract does not defeat the jurisdiction.</p> <p>¶ 4 See Patents, vol. 38, Cent. Dig. § 402.</p>

' .Appeal from the District Court of the United States for the Southern District of Ohio.

<p>1. Patents — Process—Claim for Function of Mechanical Device.</p> <p>A process claim iu a patent which is nothing more than for the operative effect or function of a mechanical device described in another claim is invalid.</p> <p>2. Same — Validity—Oil Burner.</p> <p>The Jeavons patent No. 475,401, for an oil burner, claim 1, is void because granted on an amendment of the application which was not within the scope of the original, or, if within such scope, for anticipation by patent No. 438,548 to the same inventor, and also for lack of invention in view of the prior art. Claim 5, for a process, is also void as covering only the functions of the mechanical devices described in the prior claims.</p> <p>3. Same — Infringement—'Vapor Burners.</p> <p>The Jeavons patent No. 438,548, and the Jeavons and Lannert patents Nos. 461,219 and 467,466, each for a vapor burner, construed, and held not infringed.</p> <p>¶1. See Patents, vol. 38, Cent. Dig. § 6.</p>

<p>1. Patents — Inventions in Same Art.</p> <p>A patent for an improvement in chairs having an adjustable back, and. one for a similar device as an improvement in articles of furniture having a swinging member, are in the same art; only mechanical skill being required to adapt the device to the different articles.</p> <p>2. Same — Infringement—Improvement Patents.</p> <p>Where an invention is for an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer who has improved the original machine by the use of a different form or combination performing the same function.</p> <p>3. Same — Improvement in Furniture.</p> <p>The Bowen patents, No. GG7,1G2, for an improvement in chairs, and No. G78,219, for an improvement in furniture, both relating to a ratchet device for use on articles of furniture having a swinging member, are not infringed by the device of the Luppino reissued patent, No. 11,919.</p> <p>¶ 2. See Patents, vol. 38, Cent. Dig. § 38.</p>

<p>1. Patents — Infringement—Log Turner.</p> <p>The Wilkin patent, No. 583,500, tor a log turning and loading device, for turning logs on the saw carriage in steam sawmills, was not anticipated, and discloses invention. Also held infringed.</p>

In Equity. This cause comes here upon pleadings and proofs. It is the usual suit in equity for infringement of letters patent No. 604,191, May 17, 1898, to P. P. Monnet, for improvements in vessels for containing and administering volatile liquids.

In Bankruptcy. On petition in involuntary bankruptcy. The following is the report of D. L. Grayson, special master: Pursuant to the general order of reference, referring all issues in involuntary bankruptcy cases to the undersigned, as master, to report upon the facts as well as the conclusions of law raised by the issues presented in such cases, the undersigned would respectfully report with regard to the above ease as follows: Original Petition.

<p>1. Irrigation Districts — Bonds—Payment—Remedies—Mandamus—Receiver.</p> <p>Act Cal. March 7, 1887, p. 29, c. 34, as amended by Act March 20, 1891, p. 142, c. 127, providing for the organization of irrigation districts, authorizes such districts to issue bonds for the construction of necessary works; and section 17 (page 37) provides that the bonds and interest thereon shall be paid by revenue derived from an annual assessment upon the real property of the district, and that all real property therein shall be and remain liable to be assessed for such payment as provided in the act. Held, that where an irrigation district, duly organized, issued and sold bonds under such act, the remedy of a holder thereof, after having recovered judgment and securing a return of an execution against the property of the district unsatisfied, was to compel the officers of the district by mandamus to levy an assessment against the property of the district, and not by a suit in equity for the appointment of a receiver.</p> <p>¶1. Mandamus to enforce payment of judgment against municipality, see note to Holt. County v. National Life Ins. Co. of Montpelier, Vt., 25 C. C. A. 475.</p>

<p>1. Contempt — Attorneys—Presenting Fictitious Case.</p> <p>Evidence held insufficient to sustain charges of contempt of court against attorneys, in that they acted in collusion as representing the respective parties to a suit, to impose upon the court a feigned and fictitious case, in the sole interest of the complainant therein.</p> <p>¶ 1. Liability of attorneys for contempt, see note to Anderson v. Comptois, 48 C. C. A. 7.</p>

<p>1. Indian Territory — Indian Lands — Mineral Leases — Validity.</p> <p>By treaty of 1855, 10 Stat. 1116, a certain district within the Indian Territory was set off to the Choctaw and Chickasaw Nations, to be held in common, under the control of the tribal organizations in the district of its own jurisdiction. By Act Chickasaw National Legislature, passed 1886 (Laws Chickasaw Nation, p. 188), any resident citizens (not less than three) were authorized to form a corporate company to engage in developing coal mines. This act was amended September 24, 1887 (Laws Chickasaw Nation, p. 190), so as to include petroleum, natural gas, and asphaltum. Reservation of all lands containing deposits of such minerals was made by Act Cong. June 28, 1898, c. 517, § 13, 30 Stat. 498, which required payment of royalties for the benefit of the Indians; and the Chickasaw statute also provided that after the formation of the company, and on compliance with such statute, the corporation was authorized to contract with capitalists to develop and work the mines. Raid, that such acts impliedly authorized the leasing of coal and oil lands allotted to such Indians for a limited period for the tribal or individual benefit of such Indians, and that such leases were not void on their face.</p> <p>2. Same — Cokpokations—Stockholders—Individual Liability — Statutes.</p> <p>Where a corporation was organized under the laws of Wisconsin to develop mining lands in Indian Territory, and its stock was used in payment for an assignment of leases of Chickasaw mineral lands, such leases not being void ab initio, the burden of proof was on the ifiaintift to show actual fraud in the assignment of such leases to the corporation, in an action to enforce a stockholder’s personal liability for corporate debts under the statutes of that state declaring that a stockholder shall be personally liable where stock has been issued, except for money or property estimated at its true value actually received by the corporation equal to the par value of the stock.</p> <p>3. Same — Rights op Cbeditobs.</p> <p>Where a creditor of a corporation rendered services sued for without investigating the corporation’s financial condition, and did not rely on the fact that the stock of the corporation was fully paid, he was not entitled to enforce a statutory stockholder's liability for debts on the ground that the stockholder’s subscription had been paid by a transfer of the property at an excessive valuation.</p>

<p>1. Internal Revenue — Stamps on Packages oe Liquor — Forfeitures.</p> <p>Rev. St. I 3323, as amended by Act Cong. July 16, 1892, e. 196, 27 Stat. 200 [U. S. Comp. St 1901, p. 2107], declares tliat every package of distilled spirits containing five wine gallons or more, filled on the premises of a local liquor dealer, shall be marked, branded, and stamped by such wholesale liquor dealer in such manner and under such rules and regulations as the commissioner of internal revenue, with the approval of the Secretary of the Treasury, may prescribe, etc., and declares that every rectifier or wholesale dealer who refuses or willfully neglects so to mark, brand, or stamp his liquors shall he fined, etc. Held, that such act only authorized the commissioner of internal revenue, with the approval of the Secretary of the Treasury, to designate the kind and character of the mark and stamp to be affixed to the packages, and hence the marks and stamps so prescribed were marks and stamps “required by law,” within section 3289 [U. S. Comp. St. 1901, p. 2132], declaring that all distilled spirits found in any package containing five gallons or more, without having thereon each mark and stamp required by law, should be forfeited to the United States.</p> <p>2. Same — Penalties—Exclusiveness.</p> <p>Rev. St. § 3323, as amended by Act Cong. July 16, 1892, c. 196, 27 Stat. 200 [U. S. Comp. St. 1901, p. 2167], declares that every rectifier or whose-sale liquor dealer who refuses or willfully neglects to comply with the requirements of the act as to marking, branding, and stamping, in accordance with the rules and regulations made in pursuance thereof, the packages filled on his premises as aforesaid, shall for every offense be fined not less than $200 nor more than $1000, and section 3289 [U. S. Comp. St. 1901, p. 2132], declares that all distilled spirits found in any cask or package, containing five gallons or more, without having thereon each mark and stamp required by law, shall he forfeited to the United States. Held, that the penalty imposed by section 3323 was not exclusive, and did not prevent the United States from enforcing a forfeiture of the goods not properly stamped in a proceeding in rem against them.</p> <p>3. Same — Defense.</p> <p>In proceedings to forfeit liquors not properly stamped it was immaterial that the stamps on the barrels indicated that they contained a greater number of gallons than were actually placed therein, and that the government therefore was not actually defrauded.</p>

<p>1. Federal Courts — Removal oe Causes — Petition — Citizenship — Averments.</p> <p>A petition for tlie removal of a cause from a state to a federal court on tlie ground of diverse citizenship should not only allege that the citizenship of the parties is diverse, but should also disclose the states of which the parties, respectively, are citizens.</p> <p>2. Same — Amendment.</p> <p>Where a removal petition averred that the controversy was between citizens of different states, and that the amount in controversy, exclusive of interest and costs, exceeded the sum of $2,000, the federal Circuit Court to which the cause was removed had jurisdiction to permit the petitioner to amend the petition so as to disclose the citizenship of the parties.</p> <p>¶ 1. Averments of citizenship to show federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 261.</p>

<p>1. Libel — Mercantile Report — Allegation oe Express Malice.</p> <p>A declaration in libel, based on a report made by defendant, as a mercantile agency, with respect to the financial standing of plaintiff, which stated, inter alia, that plaintiff’s account with the bank was “not classed as an entirely desirable one,” states a cause of action for the recovery of actual damages, without regard to the question of privilege, where it is further alleged that “the report as a whole was a false and malicious defamation of plaintiff, tended to injure it in its said business, * * * and was craftily and wickedly, falsely and maliciously, so intended and designed,” which is a sufficient allegation of express malice.</p> <p>¶ 1. See Libel and Slander, vol. 32, Cent. Dig. § 198.</p>

<p>In Admiralty. Suit by seamen to recover for personal injuries.</p>

<p>1. Shipping — Carriage op Passengers — Insufficiency of Accommodations.</p> <p>Allegations of a libel by steerage passengers on a voyage from Seattle to San Francisco to recover damages for breach or contract on the ground that the ship failed to furnish them with proper food, quarters, and bedding, held not sustained by the evidence.</p>

<p>1. Customs Duties — Classification—Edible Wafers.</p> <p>Edible wafers, raised in the making by the use of baking powder or bicarbonate of soda, are “leavened,” although such agents do not produce fermentation, and are dutiable under section 6, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], as nonenumerated manufactured articles, and not entitled to free entry under paragraph 696 in the free list, covering “wafers, unleavened or not edible” (Act July 24 1897, c. 11, § 2, 30 Stat 202 [U. S. Comp. St. 1901, p. 1688]).</p>

In Bankruptcy. On review of order of referee. On petition of E. A. "Wickham for review of order of referee denying claim of the petitioner to priority in the proceeds of property covered by a chattel mortgage of the bankrupt to him. James Brannock was adjudged an involuntary bankrupt by this court February 9, 1904, upon petition of certain of his creditors filed January 2d preceding.

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

<p>Upon referee’s certificate, and upon specifications in opposition to the discharge of the bankrupt.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. These causes come here upon appeal from a decision of the Circuit Court, Southern District of New York (123 Fed. 327), reversing- a decision of the Board of General Appraisers (G. A. 4,386, T. D. 20,850), which affirmed the action of the collector of the port of New York in assessing duty on certain sugars imported under the tariff act of July 24, 1897.

Entering the city of St. Paul from the west, the roadbed and tracks, side by side, and near together, of the Chicago, Milwaukee & St. Paul Railway and the Chicago, St. Paul, Minneapolis & Omaha Railway pass along the bank of the Mississippi river upon a narrow bench of land between the bank of the river (which is 10 feet or more above the water) and the foot of a high, steep bluff reaching the general level of the city in that vicinity.

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

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

<p>1. Triat. — judgment on the Pleadings.</p> <p>Under the mandate of a Circuit Court of Appeals directing a new trial the entry of judgment upon the pleadings without taking testimony may properly be directed by the trial court. If the pleadings present such a state of conceded facts as to entitle either party to a judgment, the action of the trial court in making proper disposition of the case, after hearing the argument, is itself a trial.</p> <p>2. Same — Notice of Motion — Judgment on the Pleadings.</p> <p>In moving for a judgment on the pleadings in a cause on trial in a federal court it is not required by section 537, Code Civ. Proc. N. Y., that a notice of motion should be given. When the cause is regularly reached for trial, the parties are sufficiently advised that the pleadings and the proofs are before the court for consideration. The notice contemplated in said section is required only when some special application is to be made for judgment on the pleadings in advance of the trial.</p> <p>3. Customs Duties — Passengers’ Baggage — Exempted Articles — Duty of Making Entry — Forfeiture.</p> <p>In construing the provision in paragraph 697. Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1903, p. 1689], that $100 in value of articles purchased abroad by returning residents of the United States may be admitted free of duty, held that it is the passengers’ duty to enter and declare the value of such articles, whether they cost more than $100 or not, and that when not so declared they are subject to forfeiture under section 2802, Rev. St. U. S. [U. S. Comp. St 1901, p. 1873],</p> <p>4. Same — Forfeiture—Fraudulent Intent — Smuggling.</p> <p>In construing section 2802, Rev. St. U. S. [U. S. Comp. St 1901, p. 1873], providing for the forfeiture of “any article subject to duty * * * found in the baggage of persons arriving in the United States, which was not at the time of making the entry for such baggage mentioned to the collector before whom the entry was made,” held, that fraudulent intent is not an ingredient of the cause of forfeiture; also, that dutiable articles found in the handbag of a passenger after said passenger had entered other dutiable articles were subject to the enforcement of the penalties prescribed by said section.</p>

The bill of complaint in this cause was filed in the Circuit Court by the appellants for the purpose of restraining the defendant from infringing four several letters patent, namely : No. 438,548, issued to William R. Jeavons, October 14, 1890; No. 467,466, issued to the same patentee January 19, 1892; No. 475,401, also issued to Jeavons, and dated May 24, 1892; and No. 461,219, issued to Jeavons and John A. Lannert October 13, 1891, for a joint invention of the persons last…

<p>In Equity. Suit for infringement of letters patent No. 575,154, for a stone planing machine, granted to Joseph Gilmour January 12, 1897. On final hearing.</p>

<p>1. Patents — Infringement—Fireproof Walls.</p> <p>The Geraerdts patent, No. 555,693, for a fireproof wall, consisting of a series of thin plates or blocks placed edge to edge, and provided with grooves in their sides and ends, and with registering mortises in the grooved edges thereof, and metallic tenons for connecting the plates or blocks at the sides and ends, discloses invention, but, in view of the prior art, must be limited to the precise structure shown. As so construed, held not infringed.</p>

In Equity. Suit for infringement of letters patent No. 559,446 for a shade-holding device granted May 5, 1896, to Henry H. Forsyth and Henry H. Forsyth, Jr. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 718,378, for improvements in insulating linings and processes for making the same, granted to George B. Painter January 13, 1903. On final hearing.</p>

<p>In Equity. Suit for infringement of letters patent No. 413,464 for a lantern, granted to Furman D. Spear October 22, 1899. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 441,962, to Charles Morrill, granted December 2, 1890, No. 532,175, to the same, granted January 8, 1895, and No. 703,440, July 1, 1902, to Sarah C. Morrill, executrix, each for a saw-set. On final hearing.

<p>In Equity. On accounting for infringement.</p>

<p>1. Customs Duties — Smuggling—Passengers’ Baggage — Intent to Defraud.</p> <p>Under section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873], providing for the forfeiture of, and the imposition of penal duties on, dutiable articles found in passengers’ baggage, it is not necessary that there should have been an intent to defraud the revenue in order to incur the penalties there prescribed.</p> <p>2. Same — Penal Duty — Failure to Enter Baggage.</p> <p>Articles subject to duty were found in the baggage of a person arriving in the United States, which he had intentionally failed to mention to the collector of customs before whom the entry of the baggage was made. Held, that he was liable to a penalty of treble the value of the articles, under section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873], though it was not shown that there had been any intention to avoid the payment of duty.</p> <p>3. Same — Evidence of Intent to Defraud the Revenue.</p> <p>On the examination of a passenger’s baggage dutiable articles were found placed in the skirts of dresses in such a way that they could not be seen until the skirts were unfolded. Held, that this evidence would not justify the conclusion that the owner of the baggage had intended to avoid the payment of duty upon such articles.</p> <p>4. Same — Forfeiture—Passengers’ Baggage — Exempted Articles.</p> <p>The provision in paragraph 697, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689], exempting $100 in value of dutiable articles in the baggage of returning residents of the United States, is not applicable in proceedings under section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873], for the forfeiture of, and the collection of penal duty on, dutiable articles not mentioned on the entry of the baggage. It applies only when a proper entry has been made of the articles entitled to such exemption, and not otherwise.</p> <p>5. Same — Appraisement of Forfeited Merchandise — Passengers’ Baggage.</p> <p>The statute does not contemplate that in an action to enforce the forfeiture or penalty prescribed by section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873], relative to dutiable articles found in passengers’ baggage, the court shall be required to make an appraisement of the value of such articles for the purpose of ascertaining what portion would have been entitled to admission free of duty if a proper declaration and entry thereof had been made.</p>

In Equity. Suit for injunction. On final hearing. The original bill in this ease was filed on November 30, 1901, by the Farmers’ Loan & Trust Company, a corporation of the state of New York, against the city of Sioux Falls, S. D., George W. Burnside, mayor, E. G. Ledyard, auditor, John Olson, treasurer, and H. N. Gates, John Mallanney, Thomas S. Roberts, Jonah Jones, J. M. Neil, F. A. Marvin, Iver L. Bratager, J. M. O’Neill, Alexander Reid, W. Ií.

Indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497]. On charge to the jury. > The defendant, William E. Breese, was president and director of the First National Bank of Asheville, N. C., and was indicted for violation of section 5209, Rev. St. The indictment contained 66 counts, and charged the defendant with embezzlement, abstraction, and willful misapplication of the moneys, funds, and credits of the bank.

In Equity. On motion for preliminary injunction. The complainants before the court are J. B. Holst, A. J. Ives, Lena Anderson Myers, J. J. Cummings, R. P. Lovell, Mary Ganahl Stovall, Henrietta Sea-brook, Sarah O. Adams, all of whom are citizens of the county of Chatham, state of Georgia, and Emma L. Carrington, who is a citizen of New York, and resident on Long Island. The respondents are the mayor and aldermen of the city of Savannah and the Savannah Electric Company.

<p>1. Mortgage — Foreclosure Sale — Necessity of Confirmation.</p> <p>Under the law of New York, the failure to procure an order confirming a referee’s report of sale in a foreclosure suit does not invalidate the purchaser’s title, where he has paid the consideration and received a deed from the referee.</p> <p>2. Same — Validity—Failure to Record.</p> <p>The fact that a mortgage covering both personal and real estate was not filed does not invalidate it as between the parties under the law of New York.</p> <p>3. Same — Mortgageable Interest — Estate in Expectancy.</p> <p>A testator left his residuary estate in trust, the interest therefrom to be paid to a beneficiary during her life, and the principal at her death to be divided equally between three cousins of the testator; the children of either, should he die before the termination of the trust, to take in his place, and, should either die leaving no children, the estate to be divided between those surviving or their children. Held, that each of the cousins took a contingent estate in expectancy, which, under the New York statute (1 Rev. St. pp. 722-725, pt. 2, art. 1, c. 1, tit. 2), which provides that “expectant estates are descendible, devisable, and alienable in the same manner as estates in possession,” was alienable, and could be mortgaged, although from the nature of the contingency attached neither descendible nor devisable.</p> <p>4. Same.</p> <p>One of the cousins mortgaged his interest, which was sold under foreclosure, and bought by another of the cousins, who died intestate before the termination of the trust; the mortgagor, however, surviving. Held, that while the estate in expectancy of the purchaser, under the will, was terminated by his death, the interest acquired by his purchase was not affected thereby, but passed to his heirs, and became vested in them on the termination of the trust during the life of the mortgagor.</p> <p>5. Same — Presumption of Validity.</p> <p>Where the devisee of a contingent interest in an estate gave a mortgage thereon to the executor, which was foreclosed by regular proceedings, and the interest sold to another devisee, who gave a like mortgage thereon to the executor, it must be presumed, in the absence of evidence to the contrary, that the transaction was bona fide, and divested the first mortgagor of his interest, although no reason for it appears.</p> <p>6. Estoppel — Expression of Opinion.</p> <p>The expression of an opinion by one of the parties, on a question of law, where both parties have full knowledge of the facts, cannot create an estoppel.</p> <p>¶ 2. See Chattel Mortgages, vol. 9, Cent. Dig. § 152; Mortgages, vol. 35, Cent. Dig. § 199.</p> <p>7. Dower — Estate in Expectancy.</p> <p>Under the law of New York a wife has no dower rights in lands in which her husband has only an estate in remainder expectant upon a life estate.</p> <p>¶ 7. Estates subject to dower, see note to Black v. Elkhorn Min. Co., 3 C. C. A. 316.</p>

<p>In Equity. Suit by stockholders.</p>

<p>1. Maritime Liens — State Statute — Supplies.</p> <p>Under a state statute giving a lien on a vessel for supplies furnished for her use on the order of her master, owner, or part owner, there is no lien for provisions furnished to a part owner living on a vessel with his family while she is laid up for the winter in her home port; the presumption being that they were furnished on his personal credit, and for his own use.</p> <p>2. Admiralty — Distribution of Proceeds of Vessel — Rights of Mortgagee.</p> <p>While Rev. St. §§ 4192, 4193 [U. S. Comp. St. 1901, p. 2837], providing for the recording of mortgages, etc., on vessels, do not make such recorded mortgages maritime liens enforceable in a court of admiralty, yet where such court has in its registry for distribution a fund arising from the sale of a vessel, and the maritime liens have been paid, the holder of a recorded mortgage may prove his claim against the fund, and is entitled to payment therefrom in the order of his priority.</p> <p>3. Shipping — Validity of Mortgage of Vessel — State Statute.</p> <p>The Illinois statute which provides that a chattel mortgage given to secure a note which does not, on its face, show that it is so secured, shall be void, cannot affect the validity of a mortgage on an enrolled and licensed vessel which is recorded, pursuant to the statute of the United States, at the home port of the vessel.</p> <p>4. Federal Courts — Distribution of Fund — Pendency of Suit in State Court.</p> <p>A suit was instituted in a state court to set aside a mortgage on a vessel, and a temporary injunction was granted, restraining its foreclosure. On a hearing the bill was dismissed and the injunction dissolved, and thereafter the mortgagee assigned the mortgage. Subsequently an appeal was allowed, and, on complainant giving bond, the injunction was reinstated. Pending the appeal the vessel was libeled for seamen’s wages in a court of admiralty, and, at the instance of the owner, was sold; all liens being transferred to the proceeds. The owner then assigned his interest therein to a third person. Reid, that the pendency of the state suit did not preclude the assignee of the mortgage from proving the same against the fund in the admiralty court, or prevent that court from passing on the claim and distributing the fund.</p> <p>5. Admiralty — Costs—Counsel Fees.</p> <p>Counsel fees may be allowed in admiralty, where there is a fund in court, irrespective of statutory provisions, but a single docket fee only will be allowed to a proctor who represents more than one petitioner or libelant.</p> <p>¶1. Maritime liens created by state laws, see note to The Electron, 21 C. C. A. 21.</p>

<p>In the Matter of the Application of John A. Benson for Writs of Habeas Corpus and Certiorari.</p> <p>The petitioner was indicted in the District of Columbia, and, not being found there, was arrested in the Southern District of New York upon a warrant of United States commissioner, based upon a certified copy of the indictment. Some testimony was introduced before the commissioner, the certified copy of the indictment was before him, identity was not disputed, and he committed the petitioner to the custody of the marshal to await the issuance of a warrant of removal by the district judge under section 1014, Rev. St. U. S. [U. S. Comp. St. 1901, p. 716].</p>

In Bankruptcy. On application for an order compelling the bankrupt to assign to the trustee certain policies of life insurance. This is an application for an order compelling the bankrupt, Jacob M. Mertens, to assign, transfer, and set over unto Albert I-C. Hiseock, as trustee in bankruptcy of the estates of the firm of J. M. Mertens & Co., and of the individuals composing said firm, certain policies of life insurance.

<p>1. Customs Duties — Classification—Drilled Tearls — Similitude.</p> <p>Drilled pearls were imported, wbieli, by a careful process of selection, matching, and assortment, requiring time and skilled labor, had been put in a condition in which they were collectively worth more than the aggregate value of the individual pearls. Held, that in this state they bore a closer resemblance to pearls strung than to pearls in their natural state, and that under the requirement of section 7, Tariff Act July 24, 1897, e. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1G93], that any article not enumerated in the act “shall pay the same rate of duty which is levied on the enumerated article which it most resembles,” they are dutiable at the same rate as the “pearls * * * strung” enumerated in paragraph 434 of said act, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1670], and not as “pearls in their natural state, not strung or set,” under paragraph 436, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], nor as “articles manufactured, in whole or in part, not provided for,” under section 6 of said act, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693],</p> <p>2. Same — Finding of General Appraisers.</p> <p>Findings of fact by the Board of General Appraisers will only he reviewed when the court is satisfied that such findings are unsupported by the evidence, or clearly against the weight of evidence, or where new evidence has been introduced which was not before tlie board.</p> <p>3. Same — Reliquidation at Increased Rate of Duty — Right of Collector of Customs.</p> <p>Certain merchandise was imported, assessed for duty, passed into the possession of the owners, and was sold, and protests against the assessment were made by the importers. Subsequently, but within one year after the original liquidation of the entry, and while the protests were still pending before tbe Board of General Appraisers, the collector of customs reliquidated the entry, and collected duty at an increased rate. Held, that this action of the collector was lawful, under the provision in section 21, Act June 22, 1874, e. 391. 18 Stat. 190 [U. S. Comp. St. 1901, p. 1980], that the “settlement of duties shall, after the expiration of one year from the time of entry, * * * be final and conclusive upon all parties.”</p>

<p>1. Federal Courts — Motion to Dismiss for Want of Jurisdiction.</p> <p>On a motion to dismiss for want of jurisdiction, tbe court will not ordinarily enter into a consideration of tbe merits, but, if tbe case shows a bona fide claim witbin tbe jurisdiction of tbe court, with a reasonable plausibility in support thereof, tbe question of jurisdiction will be passed until tbe cause is considered on tbe merits on formal pleadings.</p> <p>2. Same — Jurisdiction—Local Action.</p> <p>A suit in equity by a lessee against a nonresident lessor to enforce alleged rights under the terms of the lease, by requiring tbe defendant to elect either to buy the building from, or to sell the land to, complainant at an appraised value, or to have the court make such election and enforce its decree through a master or trustee authorized to execute a deed, may be one to enforce a lien or claim to the property, which, when in good faith, is on the face of the bill within the jurisdiction of the Circuit Court of the United States for the district in which the property is situated, under section 8 of the judiciary act of March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513],</p>

<p>1. Master and Servant — Joint Negligence.</p> <p>In order to render a master and servant jointly liable for injuries to a third person, there must be actual negligence, as distinguished from imputed negligence of the master concurring with a negligent act of the servant.</p> <p>2. Federal Courts — Removal on Cause — Separable Controversy.</p> <p>Though, in a suit against two or more defendants, one of whom is a nonresident, there may be charges of concurrent negligence against all, yet, if there be also a distinct charge of negligence against the nonresident defendant alone, sufficient in and of itself to constitute a cause of action, the case is one involving a separable controversy between citizens of different states, and is therefore removable to the federal courts.</p> <p>3. Same — Pleading.</p> <p>A complaint against a nonresident railway company and certain of its employes in charge of the train by which deceased was killed, who were of the same citizenship as plaintiff, alleged that, in violation of the rules of the railway company, “defendants negligently, willfully, and maliciously, by their joint, concurrent acts,” gave certain box cars a high, unusual, and dangerous rate of speed, uncoupled them from the engine, turned a swdtch, and permitted them to roll down a steep grade over a crossing, by which plaintiff’s intestate was knocked down and killed. The complaint also charged defendants jointly with negligence in maintaining such steep grade and closely adjoining switch at such place, in not providing a switchman at the crossing, in not providing a brakeman in charge of the cars, and in that the railway company’s employes were incompetent, and that they were retained in its employ with knowledge that they were accustomed to violate its rules. Held, that such acts of negligence were not joint, but that the complaint alleged a separable controversy, entitling the railway company to remove the cause to the federal courts.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent. Dig. § 1238.</p> <p>¶2. Separable controversy ground for removal of cause to federal1 court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Mineral Co., 35 C. C. A. 155.</p>

<p>1. Costs — Allowance in Equity.</p> <p>While tbe allowance of costs in an equity suit is not governed by statute, and is largely within tbe discretion .of tbe court, tbe general rule is that tbe prevailing party in cases in equity, as at law, is entitled to recover costs ; and a plaintiff in an action in ejectment for mining property and also in a suit in equity against tbe same defendant to enjoin trespass thereon, wbo recovers in both cases on issues joined, will be allowed costs in both, although it recovered only as to part of tbe ground claimed, tbe title of each party to a portion thereof being stipulated on tbe trial.</p> <p>¶ 1. Right to costs in equity, see note to Tug River Coal & Salt Co. v. Brigel, 17 C. C. A. 308.</p> <p>See Costs, vol. 13, Cent. Dig. § 10P</p>

<p>In Admiralty. Suit for personal injury.</p>

<p>In Bankruptcy.</p>

Appeal by the Importers from a Decision of the Board-of United States General Appraisers. On application for a review of a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Traitel Bros. Note G. A. 4,645, T. D. 21,957.

<p>1. Eminent Domain — Taking or Land Without Payment — Acquiescence of Owner.</p> <p>Where a landowner expressly consents or clearly acquiesces in the taking of right of way over his land for a railroad without payment, his right to hold the land is gone and he has only a personal claim against the company for the debt.</p> <p>2. Same.</p> <p>The absence of any agreement between a landowner and a railroad company as to the price to be paid for right of way, or the manner of determining the same, negatives a claim that the company was to be given credit, and the owner’s right to the land can only be extinguished by appraisal and payment.</p>

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

Applications for Review of Decisions of the Board of General Appraisers. These proceedings relate to two decisions of the Board of General 'Appraisers (G. A. 4,163, T. D. 19,449, and G. A. 5,148. T. D. 23,750), affirming the assessment of duty by the collector of customs at the port of New York on importations bv Rudolph C. Hahn.

<p>1. Shipping — Injury to Barge by Crowding Against Dock.</p> <p>A steamship held liable for breaking the guard rail of a barge, which was between herself and a dock, caused by pressing the barge against the dock, on the ground that proper care was not exercised in adjusting the booms so as to keep her off with the changing tide.</p>

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

<p>In Bankruptcy. Submitted on petition of the Granite City Bank of Dell Rapids, Souih Dakota, for review of order of referee directing the trustee to sell personal property of the bankrupt free from the mortgage liens of said bank.</p> <p>From the certificate of the referee it appears that the trustee presented a petition to the referee alleging; That certain property of the bankrupt, to wit, live stock and grain, situate in Bloody county, S. D., was covered by liens and mortgages, one of which was to the Granite City Bank of Dell Rapids, S. D., for over $15,000, made by the bankrupt June 27, 1903, shortly after said bank had attached said property in an action against the bankrupt; that said mortgage was a preference within the meaning of the bankruptcy act (Act July 1, 1898, c. 541, SO Stat. 544 [U. S. Comp. St. 1901, p. 3418]), and that the amount due the bank thereon from the bankrupt, if anything, is uncertain; that the property is of a perishable nature, and will be lost if not soon sold; and praying that he be authorized to sell the property free from the mortgage and other liens thereon. The referee fixed a time for the hearing of said petition, and gave to all creditors notice thereof by mail, and notice was also served personally upon the Granite City Bank of such hearing, in Dell Rapids, S. D. At the time fixed for such hearing the Granite City Bank appeared specially to object to the jurisdiction of the court, and did object thereto upon the grounds, in substance, that neither the property referred to in the petition of the trustee nor the Granite City Bank were within the territorial jurisdiction of the court, and for that reason the court had no authority to order a sale of the property free from the lien of the bank’s mortgage. The referee found that the trustee was in the actual possession of the property, and ordered that it be sold free from the liens thereon, and that the proceeds be applied to the payment of the liens as they may be established. The Granite City Bank petitions for a review of this order.</p>

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