Volume 132 — Federal Reporter

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

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

<p>Appeal from the Circuit Court of the United States for the District of Utah.</p> <p>Isa 1873 the Wasatch & Jordan Valley Railroad Company, a corporation of the territory of Utah, mortgaged its property and franchises to secure an issue of Its first mortgage bonds aggregating more than $300,000. In 1874 the Bingham Canyon & Camp Floyd Railroad Company, also a corporation of the terTltory of Utah, mortgaged its property and franchises to secure an issue of §38®,C00 of its first mortgage bonds. The railroads of these companies connected at Sandy Station, in Salt Lake county, Utah; that of the Wasatch ■Cffliaipany extending eastward from that point about 15 miles, and that of the Bingham Company extending westward about 20 miles. In 1879 the two companies effected a consolidation, and the new or consolidated company assumed the name of the Wasatch & Jordan Valley Railroad Company. In the same yesur the new Wasatch ‘Company executed to the Union Trust Company of New York, as trustee, a mortgage upon the railroads, property, and franchises which had theretofore belonged to its constituent companies, to secure an auE&srized issue of 1,200 bonds, each of the denomination of $1,000. This mortgage was subject to each of those above mentioned. Only 884 of these second Miiitgage bonds were ever certified and issued, and Nathaniel W. Raphael was the owner of 579 of them when he instituted this suit. In 1881 the trustees of the Bingham and old Wasatch underlying mortgages,- by virtue of the powers expressed in those instruments, took possession of the two railroads, anal, proceeding separately, advertised and sold them. It was alleged that each company had defaulted in the payment of the interest coupons attached to Its bonds, and that conformably with the provisions of the respective mortgages the bonds themselves became due, and the duty of sale devolved upon fire trustees. Deeds of conveyance were thereupon made by the trustees to the Denver & Rio Grande Western Railway Company. In 1889 the Rio Grande Western Railway Company succeeded the Denver & Rio Grande Western in the ownership and possession of the properties mentioned. In the same year ft executed to the Central Trust Company of New York its first mortgage upon Sis property and franchises, including the two lines of railroad in question, to secure an issue of sixteen million dollars of bonds, and in 1899 it executed to the Morton Trust Company of New York (then known as the State Trust (Company) another mortgage thereon to secure an issue of between twelve and thirteen million dollars. In 1899 Nathaniel W. Raphael purchased in New Y®e& 579 of the bonds of the new or consolidated Wasatch Company. The iifflads purchased by Raphael aggregated in amount $579,000, and to most of them were attached 20 years of defaulted coupons. The Union Trust Company, the trustee in the mortgage given to secure these bonds, declined to bring smifc at Raphael’s request. Consequently, on January 7, 1901 — nearly 20 years after the sales of the mortgaged properties by the trustees under the prior mortgages — Raphael exhibited his bill against the new Wasatch Company, the Tim Grande Western, and the Union Trust Company, as trustee, to annul the sates made in 1881 under the prior mortgages, to be allowed to redeem from fílase mortgages, for an accounting on the part of the Rio Grande Western mff file rents and profits of the railroads, to foreclose the second mortgage secnarÉng his bonds, and for general relief. Upon their own application the ©safeai Trust Company and the Morton Trust Company were subsequently m.zñe parties defendant. The gravamen of the bill is that the trustees’ sales mb 1881 were fraudulent, that the fraud was concealed, that the complainant was an innocent purchaser of the second mortgage bonds of the new Wasatch ©anspany, and that he did not discover the fraud until July, 1899. The principal criticisms made of the trustees’ sale of the railroad of the Bingham ©»mpany, which is the only branch of the case necessary to be considered, are ■a. faltare to publish the notice of sale in such a newspaper as the mortgage contemplated; that there was no default in the interest on the Bingham bonds, and the bonds were therefore not due; that no demand was made six months-before the sale was noticed; that the notice of sale contained no sufficient recital respecting the maturity of the bonds and the amount claimed to be due; that the Bingham Company had deposited the $300,000 of bonds as collateral for a note for $200,000, and that, as long as the interest on the note was paid, no interest was to be paid on the bonds; that the interest was paid on the note; that the holder of the note and the collateral bonds unlawfully sold the bonds, thus paying the debt of the company; that the purchaser of the bonds thereupon at once unlawfully and fraudulently caused the trustees to foreclose the mortgage by notice and sale; that the trustees who took possession of the road fraudulently failed to apply the net earnings to the payment of the interest on the bonds; that the original holder of the bonds never lawfully foreclosed the pledge thereof, and he could not, therefore, vest a good title in the person who caused the mortgage to be foreclosed; that the Rio Grande Western and its predecessor, the Denver & Rio Grande Western, acquired title to the Bingham road with knowledge of the fraud and invalidity of the foreclosure proceedings, and that consequently their position was that of mortgagees in possession. When the Bingham road was sold by the trustees in 1881 and was deeded to the Denver & Rio Grande Western in 1882, it became incorporated in and a part of the railroad system' of the latter company. The trustees’ deed of conveyance, which recited the cause of foreclosure and the various steps taken by them, was recorded in the public records in Utah in 1882, and imparted notice to the world of its recitals. The grantee took possession under the deed in 1882, and it and its successor have ever since remained in the open, notorious, exclusive, adverse and continuous occupancy thereof. Such occupancy was under claim and color of title, and was accompanied by the payment of taxes. The railroad was practically reconstructed by its new owners. It was changed from a narrow to a standard gauge. It became, with the remainder of the system of which it was a part, subject to mortgages securing many millions of dollars of bonds which passed into the hands of innocent purchasers. If the trustees’ sale of 1881 should be sustained against complainant’s attaek, the lien of the second mortgage which ^yas given to seeure the bonds held by him is concededly cut off and foreclosed. The company which originally owned the Bingham road, its officers and stockholders, the trustee of the second mortgage, and also the holders of the second mortgage bonds, all acquiesced for 18 years in the .trustees’ sale which cut off their rights and interests. If they were not fully informed of the-proceedings connected with the foreclosure and sale by the trustees, they were intentionally ignorant. In 1899 the complainant, who was a lawyer, and a broker in defaulted securities, purchased 579 of these second mortgage bonds. They were of the face value of $579,000. To most of them there remained still attached all of the original interest coupons, those in default covering a period of 20 years. The bonds and matured coupons purchased by him amounted to more than $1,000,000. He paid for them less than $1,000. The prices paid by him varied from $1 to $1.85 per $1,000 bond with attached coupons. On $355,000 of the bonds the trustee’s certificate- was canceled when he bought them. He did not, before purchasing, seek to ascertain why this important evidence of genuineness, validity, and value was destroyed. An important participant in that which complainant afterwards denominated a fraud was one of the trustees who sold the Bingham road in 1881. Nevertheless complainant utilized his services in locating a portion of the bonds which he purchased. This same man had been the president of the new Wasatch Company, whose defaulted securities the complainant was gathering up, and his name appeared as such upon every bond. But complainant carefully avoided making inquiries which would have led to information. Before purchasing any of the defaulted bonds he examined some issues of a railroad manual including the one for the year 1882, and he read what appeared there concerning the affairs of the company which issued the bonds. In the publication of the year mentioned it was recited that the railroad was “recently purchased by the Denver & Rio Grande Western Railway Company.” But he made no inquiry of that company as to the status of the securities which he contemplated purchasing; nor did he inquire of the Union Trust Company of New York, the trustee for the holders of those securities — the trustee which had canceled its certificate upon $355,000 of bonds which he purchased. There were other obvious sources of information to one who desired to be informed, but they were purposely ignored by the complainant. When he had about completed his purchases, he became apprehensive that 18 years prior thereto a fraud liad been committed upon the company and the original holders of the second mortgage bonds which he had just purchased for a nominal consideration. He claimed that thereupon, as an innocent purchaser, he made an investigation, and discovered for the first time the commission of a fraud, and its prior concealment. Failing to induce the Rio Grande Western to purchase his bonds and coupons, he instituted suit on January 7, 1901, nearly 20 years after the trustees’ sale complained of. At the trial the complainant wholly failed to establish fraud either in the trustees’ sale and conveyance of the Bingham road or in any of the acts of the parties or the proceedings of the trustees leading up to the same. Nor did there appear to have been the slightest concealment of what was actually done. After full hearing the Circuit Court dismissed the bill. The complainant died after perfecting his appeal to this court, and Martha Raphael, as administratrix of his estate, was substituted as appellant. The appellant’s contentions in this court have been confined to the proceedings connected with the sale of the Bingham road, the other branch of the case having been abandoned.</p>

<p>1. Appeal — Issues Review able.</p> <p>Where a decree dismissing a bill is general, all defenses pleaded are open to the defendant on appeal, although one only may have been sustained by the trial court in its opinion.</p> <p>2. Patents — Anticipation—Construction op Claims.</p> <p>The Adams patent, No. 24,915, for “a tube or cylinder east out of copper, and free from blowholes and other similar defects, when produced as herein stated,” covered a product only, and not the process, and was void for anticipation, it being shown that other processes previously in use also produced sound copper tubes, although not so large a percentage as that described in the patent.</p> <p>3. Same — Suit for Infringement — Laches.</p> <p>Where a patentee, who had contracted to obtain an extension of his patent, if possible, and to assign the same to plaintiff, made a compromise agreement with defendant, which was opposing the extension, by which the opposition was withdrawn, and defendant was to have a license to use the patented device, plaintiff, with knowledge of the agreement made for its benefit, was bound thereby, and in any event was barred by laches from maintaining a suit in equity for infringement against defendant commenced within less than a month before the extended patent expired, and more than three years after it had full knowledge of all the facts, during which time it made no claim of infringement.</p> <p>¶ 2. Laches as a defense in suits for infringement of patents, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.</p>

<p>1. Patents — Collateral Attack — Irregularities in Issuance.</p> <p>The validity of a patent which is regular on its face cannot be collaterally attacked in a suit for its infringement on the ground of irregularities in the proceedings in the Patent Office, as that the final fee was not paid within the six months required by the statute.</p> <p>2. Same — Infringement—Calculageaph.</p> <p>The Hamilton patent, No. 424,291, for an apparatus for recording measurements of time, space, or quantity, and the Abbott patent, No. 583,320, for a caleulagraph, which embodies the invention of the Hamilton patent in an instrument for automatically recording elapsed time, used specifically in recording the length of time a long distance telephone has been used by the operation of a lever at the beginning and end of such use, and also the time of day when such use commenced, were neither of them anticipated by anything in the prior art, and both are valid, and entitled to a reasonably liberal construction with respect to equivalents. Claim 1 of the Hamilton patent and claims 1 and 2 of the Abbott patent held infringed.</p> <p>3. Same — Personal Liability for Infringements.</p> <p>An individual person cannot avoid liability for infringement by conducting his business in the name of a corporation.</p>

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

<p>1. Patents — Infringement—Sewage Apparatus.</p> <p>The Clover patent, No. 559,522, for a sewage apparatus, does not describe or claim tbe combination of putrefactive and oxidizing processes of treatment, nor describe tanks suitable for putrefactions, and is not infringed by an apparatus in which a primary liquefying tank is used instead of the filter-beds of the patent</p>

<p>3L Patents — Suit fob Infringement — Sufficiency cf Bile.</p> <p>A bill for infringement of a patent makes a prima facie case whereit alleges the invention, the issue of letters patent, ownership by complainant, infringement by defendant, and damages sustained. The filing of an application in due form commensurate with the grant is presumed from the issuance of the patent, and need not be alleged, any defect therein affecting the validity of the patent being matter of defense.</p> <p>2. Same — Demurrer to Bell.</p> <p>The mention in a bill for infringement of prior patents to the same patentee does not amount to a profert of such patents so as to bring them before the court for consideration on a demurrer to the bill.</p>

In Equity. Bill to restrain unfair competition in trade. Submitted on demurrer to the bill and motion of complainant for preliminary injunction. The bill was filed February 23, 1904, and therein it is alleged in substance: “That complainant is a corporation duly incorporated in 1865 under the laws of the state of Illinois. That its name first was ‘The National Watch Company,’ which, in 1874, was changed to the ‘Elgin National Watch Company’.

<p>1. Admiralty — Passenger’s Jewels — Theft — Tickets — Liability — Exemptions — Validity.</p> <p>Conditions of a steamship passenger ticket exempting the ship from liability for loss of passenger’s effects by theft or any act of neglect or default of the shipowner’s servants or other persons for whose acts he is responsible, and valuing passenger’s baggage at £20, in the absence of a bill of lading therefor, and the payment of an additional freight charge for transportation, and exempting the ship from liability under any circumstances for jewelry, etc., unless declared and delivered into the personal custody of the chief steward or purser of the vessel, were unreasonable, and contrary to public policy.</p> <p>3. Same — Signing Ticket.</p> <p>The fact that the ticket containing such provisions was handed to the passenger, who filled in some blank spaces under a caption, “Passengers will please fill in the following information required for United States authorities,” disclosing certain particulars relating to herself and traveling companion, did not render such provisions binding on her, it appearing that she never read nor adopted them.</p> <p>8. Same — Evidence.</p> <p>Libelant and her traveling companion purchased ocean steamship tickets, and, after eating their first meal on board, libelant placed her jewels in a hand bag, and at once went to the purser’s room to place the bag in his care. She was unable to obtain admittance, and finally notified the steward of her desire, who promised to inform her as soon as the purser returned. Libelant waited in her stateroom until 12 o’clock at night, when her room was entered by a man in steward’s uniform, who seized the bag and fled. Libelant immediately notified the officers of the ship, but the bag was not again found. Held, that the facts established a cause of action for theft by the ship’s servants, for which it was liable.</p> <p>4. Same — Statutes.</p> <p>Rev. St. § 4281 [U. S. Comp. St. 1901, p. 2942], providing that shippers of jewelry, including precious stones, shall, when lading the same as freight or baggage, give to the agent of the ship a written notice of the true character and value thereof, and have the same entered on the bill of lading, otherwise the owner of the vessel shall not be liable beyond the value according to the notice, does not apply to a case where a passenger took such of her jewelry as she was accustomed to wear aboard, and was robbed thereof the first night out, before she succeeded in depositing it with the purser, without any fault on her part.</p> <p>15. Same — Filing Claim — Time.</p> <p>Where a steamship was made fast to the wharf at her destination at 2:10 p. m. on November 10, 1903, and a passenger mailed a notice of her claim for loss of jewels by theft of the ship’s servants at 5:30 p. m. on November 12, 1903, which notice was received by the steamship’s agent the morning of the 13th, the notice was given in substantial compliance with a condition of a ticket requiring claims to be presented within 48 hours after the passengers are landed.</p> <p>6. Same — Contbibtjtoby Negligence.</p> <p>Where a passenger had not finally retired for the night at the time her stateroom was entered and her jewelry stolen, but she was expecting the purser, so that she could place the jewels in his charge, and it was necessary that the door should be left open for ventilation, her failure to shut and bolt the same was not contributory negligence.</p>

<p>iu Shipping — Charter Party — Discretion of Master as to Cargo to be Received.</p> <p>Notwithstanding a provision of a charter party requiring the ship to receive all such lawful cargo as the charterers may think proper to ship, some discretion is left in the master, whose duty it is to exercise his judgment for the benefit of all concerned; and where the owners are responsible for proper stowage and safe carriage he is justified in refusing to load goods where there is danger that they will injure, or be injured by, other cargo previously loaded.</p> <p>2. Same — Danger of Damage to One Part of Cargo from Another — Kerosene and Flour.</p> <p>Libelants chartered a sailing vessel from respondents to carry a gen eral cargo from New York to Australia. The charter party required the vessel to receive all such lawful goods and merchandise as the charterers ¡or their agents might think proper to ship, and provided for the giving of bills of lading by the master under which respondents would be responsible for safe stowage and carriage. After loading some 13,000 cases of refined petroleum in the fore part of the lower hold, the charterers desired to load for another party 300 tons of flour in sacks to be stowed in the after between decks. Being apprehensive that the flour might be damaged during the voyage by fumes from the oil, the master, after consulting authorities and persons having experience, required the charterers to give a letter of indemnity against such risk, or to have any claim for damage on that account waived by the owners. These were refused, and both parties then attempted to obtain insurance against the risk both in London and New York. Being unsuccessful, the master refused to load the flour, and sailed without it. The evidence was conflicting as to whether or not there was real danger from such cause. Held, that under the circumstances, and especially in view of the refusal of underwriters to accept the risk, the master was justified in his action, and that his judgment, being formed íd good faith, was controlling.</p>

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

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

<p>At Law. On motions to dismiss for want of jurisdiction.</p>

<p>1. Reference — Report of Master — Return of Evidence.</p> <p>Unless requested by the parties or directed by the court, it is not usual for a master or commissioner to whom a question of damages in an action at law has been referred after default to return the evidence with his report, and whether or not it will be required on a subsequent motion therefor is within the court’s discretion.</p> <p>2. Same — Revision of Findings.</p> <p>While the findings of a master to whom the court has referred a case at law after default for the assessment of damages are not binding on the court, it will not try the case anew, but will revise such findings only where errors or omissions plainly appear, and will especially regard the master’s findings where the facts are complicated and the findings depend to some extent on the credibility of witnesses who have appeared before the master.</p>

<p>1. Trover-Measure oe Damages — Cutting and Conversion oe Timber.</p> <p>In an action of trover for the conversion of timber unlawfully cut by defendant from plaintiff’s land, and which has been enhanced in value by his operations, the measure of damages recoverable if the trespass was unintentional is the value of the timber before cutting, but if it was willfully committed defendant is liable for the value of the timber at the time of demand or suit brought, however enhanced by his labor. The distinction is not on the ground of the allowance of exemplary damages in the latter case, but on the principle that in the former case defendant, by his improvement of the property in good faith, has acquired a certain right therein, and is entitled to a credit for the value added whenever the property is retaken, or plaintiff asserts his right thereto in any form of action.</p> <p>2. Same — Unintentional Trespass — Burden oe Proof.-</p> <p>In an action of trover for the conversion of timber cut and removed by defendant from plaintiff’s land the burden of proving that the trespass was unintentional, as affecting the measure of damages, rests on the defendant.</p> <p>3. Same — Good Faith — Measure of Proof.</p> <p>To entitle the defendant in such case to an allowance on account of enhancing the value of the property in good faith, he is not required to prove freedom from negligence, but only that, the trespass was not willful, or did not result from wantonness or recklessness.</p> <p>4. Same.</p> <p>In general, a trespasser who commenced the cutting of timber on land of another in good faith, in the belief that he had the right to do so, cannot show such fact in an action for conversion of the timber to sustain a claim for an allowance for improvement made in the value of the timber after he acquired knówledge that his cutting was without right</p> <p>¶ 1. See Trover and Conversion, vol. 47, Cent Dig. §§ 270, 271.</p> <p>6. Samis — Evidence Considered.</p> <p>Evidence considered, and held to establish the claim of a corporation defendant that in cutting timber on land of plaintiff, although in fact a trespasser, it acted in good faith in the belief that it had acquired a substantia] if not a technical right to so cut under a lease held by another, and to entitle it to an allowance, when sued for the trespass, for the value added to the timber cut through its labor and expenditure in manufacturing it into pulp.</p> <p>•6. Same — Measure of Damages.</p> <p>In an action of trover for the conversion of timber cut and removed by defendant from plaintiff’s land, where the trespass was not willful, wanton, nor reckless, but defendant acted in good faith in the belief that it was within its rights, the measure of recovery is the stumpage'value of the trees at the time they were cut '</p>

<p>1. Aliens — Chinese Exclusion Act — Constitutionality.</p> <p>Section 13 of the Chinese exclusion act of September 13, 1888, c. 1015, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317], which authorizes the arrest and deportation by order of a commissioner, of persons charged with being Chinese persons unlawfully in this country, is constitutional.</p> <p>2. Same — Chinese Natives op Hongkong.</p> <p>The fact that a Chinese person emigrates to the United States from Hongkong, or even that he is a native of that colony, does not prevent Ms being subject to the provisions of the Chinese exclusion act of September 13, 1888, c. 1015, § 13, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317].</p> <p>¶ 1. See Aliens, vol. 2, Cent. Dig. § 74.</p> <p>¶ 2. Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. G. A. 212; Lee Sing Far v. United States, 35 G. C. A. 332.</p>

<p>On Application for Bail Pending Appeal to Circuit Court of Appeals from Final Order of Deportation.</p>

In Bankruptcy. On petitions for discharge. The following is the report of John W. Banks, Referee in Bankruptcy : 1. Said Frank W. Mackenzie and Howard E. Mackenzie, both of Bethel, in Fairfield county, in said district, were duly adjudged bankrupts on the 21st day of November, 1898. 2. On the 10th day of June, 1899, each of said bankrupts filed with said referee his petition for discharge in accordance with the practice then prevailing in this district. 3.

<p>In Admiralty. Suit by seamen to recover wages.</p>

<p>1. Marine Insurance — Construction of Policy — Waters of Hudson Biver.</p> <p>A marine policy on a scow contained the following provision: “Warranted by the assured to be employed exclusively in the freighting business, and to navigate only the waters of the Bay and Harbor of New York, the North and East Bivers, and inland waters of New Jersey.” Held, that “North Biver” could not be extended by construction to include tributaries of the Hudson in the state of New York, and that there could be no recovery under the policy for an injury to the scow received while she was lying at a dock in Bondout creek, 2% miles from the Hudson.</p>

<p>In Admiralty. Action for damage to cargo;</p>

<p>1. District Attorneys — Special Assistant — Validity of Appointment.</p> <p>The fact that the commission of a special assistant to a District Attorney appointed under the authority given by Rev. St. § 363 [U. S. Comp. St. 1901, p. 208], is signed by the Solicitor General in the Department of Justice as “Acting Attorney General” does not affect the validity of the appointment; the Solicitor General being empowered by section 347 [U. S. Comp. St. 1901, p. 202] to exercise the duties of the office of the Attorney General in case of his absence, which will be presumed in support of the regularity of the appointment.</p> <p>2. Same — Appearance before Grand Jury.</p> <p>A commission from the Department of Justice to an attorney appointing him a special assistant to a District Attorney is not to be construed with technical nicety, and such a commission appointing an attorney as special assistant to a District Attorney, to assist “in the preparation and trial” of cases of the United States against the officers of an insolvent national bank against some of whom indictments had previously been returned, is to be construed as having been given under Rev. St. § 363 [U. S. Comp. St. 1901, p. 20S], and to authorize the person so commissioned to assist in the performance of any duties of the District Attorney, including appearing before the grand jury to present evidence for new indictments.</p> <p>3. Same.</p> <p>The fact that an attorney appointed by the Department of Justice as a special assistant to a District Attorney in the prosecution of criminal actions against the officers of an insolvent national bank had previously been employed by the receiver of such bank to prosecute civil suits agaihst such officers does not affect the validity of his appointment.</p>

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

<p>Appeal from Order of George K. Calvin, United States Commissioner, Directing Deportation of Chinese Person.</p>

<p>1. Declaration — Sufficiency—Action on Contract.</p> <p>A declaration in an action for damages for breach of contract held, on a construction of the contract on demurrer, to state a cause of action.</p> <p>2. Same — Surplusage—Pleading Matter of Law.</p> <p>Allegations in a declaration for breach of contract setting out prior decisions in an action between the parties as rendering the question of law as to defendant’s liability res judicata held to be surplusage, and stricken out on motion.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Defense by Creditors.</p> <p>Creditors who, with knowledge of the pendency of proceedings in bankruptcy against their debtor, fail to enter an appearance until after an adjudication has been made, are not entitled to have it set aside to permit, them to plead, unless they show a satisfactory reason for the delay.</p> <p>2. Same — Corporations.</p> <p>An adjudication of bankruptcy against a corporation will not be set aside as a matter of course, to permit creditors to interpose the defense that the petition fails to show that the corporation is one of the class which may be adjudged an involuntary bankrupt.</p> <p>3. Same — Jurisdiction—Vacancy in Judgeship.</p> <p>A District Court does not cease to exist because of a vacancy in the-office of judge in such sense that proceedings in bankruptcy may not be instituted therein, but in such case it is the duty of the clerk to receive and file the petition when offered; and it seems that he may also issue a subpoena thereon, tested in his own name, as provided by Rev. St. § 911 [U. S. Comp. St. 1901, p. 683].</p>

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

<p>1. Collision — Violation of Rules by Ovektaking Steam Vessel — Suction. The steamship North Star, 320 feet long, with 46 feet beam, and of 3,159 gross tons, overtook and tried to pass the steam yacht Nourmahal, 247 feet long, 30 feet beam, and 768 tonnage, in Swash Channel, in rather shallow water. She was going with the tide, and at a speed of about 17 miles through the water. She came .up without giving any signal of her intention to pass, as required by Inland Navigation Rules, art. 18, rule 8, Act June 7, 1897, c. 4, § 1, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2882], and within about 100 feet to the starboard of the yacht. When partly past, the yacht left her course, and, although her helm was put to starboard, and then hardastarboard, her stem came into collision with the port side of the steamship. Held, that the collision must be attributed to the .suction of the larger vessel, and that she was solely in fault, for violation of the rules.</p> <p>¶ 1. Collision — overtaking vessels — see note to The Rebecca, 60 C. C. A. 254. 132 F. — 10</p>

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

<p>1. Jurisdiction op Federal Courts — Diversity op Citizenship — District op Residence op Corporations.</p> <p>Under section 1 of the judiciary act of August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], which restricts the jurisdiction of federal courts, when based on diversity of citizenship, to the district of the residence of either the plaintiff or defendant, a Pennsylvania corporation which has filed with the Auditor General of the state a certificate designating its office and place of business, pursuant to Act Pa. June 7, 1879 (P. L. 112), must be deemed a resident of the federal district within which such place is situated, and cannot be sued in another district of the state, although its operations may extend into such district</p> <p>¶ 1. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.</p> <p>See Courts, vol. 13, Cent. Dig. § 814</p>

<p>1. Shipping — Collision of Barge with Wharf — Negligent Handling by Charterer.</p> <p>Injury to a barge chartered to respondent by being brought into violent contact with a wharf while being towed by respondent’s tug, held, on conflicting evidence, to have been due to negligent handling by the tug.</p>

<p>1. Admiralty — Finding by Commissioner — Sufficiency of Exception.</p> <p>Under the rule laid down in The Paquete Habana, 189 U. S. 453, 23 Sup. Ot. 593, 47 L. Ed. 900, a general exception to the amount of a finding by a commissioner on a reference in admiralty is sufficient where all the evidence is attached to the report.</p> <p>2. Shipping — Raising Sunken Vessel — Value of Services.</p> <p>Exceptions to the report of a commissioner finding the value of services rendered in raising a sunken dredge considered, and held without merit.</p>

<p>In Bankruptcy. On question certified from referee.</p>

<p>1. Shipping — Loss op Logs in Loading — Peru, op the Sea.</p> <p>The loss of logs which broke loose from a raft by reason of a high wind, after they had been towed out to a steamer for loading in the open sea, was due to a peril of the sea, and the steamer is not liable therefor.</p> <p>¶ 1. Loss by perils of tbe sea, see note to Tbe Dunbritton, 19 O. O. A. 465.</p>

<p>1. Patents — Invention and Infringement — Weather Strips.</p> <p>The Sims patent, No. 424,905, for a flexible metallic weather strip, consisting of a thin strip of zinc doubled on itself in the center to form a rib which projects into a groove in the edge of a sliding window sash, while the edges of the strip are turned at right angles to the rib to make a flat back, which is fastened in the recess of the casing, was not anticipated, and shows invention. Claims 2 and 3 also held Infringed.</p> <p>2: Same — Infringement.</p> <p>The particular form of the back of a weather strip, or the manner of fastening it to a window easing by leaving openings for the tacks used, are not an essential part of the invention, and a variation therein does not avoid infringement, where the principle of the invention is appropriated.</p>

<p>1. Collision — Tugs and Tows Meeting — Failure oe Tugs to Allow Sufficient Room.</p> <p>Two tugs passing up East river with a tow of seven canal boats in two tiers, and three tugs passing down with a ship in tow, all held in fault for a collision between the tows because of their failure to allow sufficient space in passing for the ordinary contingencies of navigation.</p>

<p>1. Equity — Submission op Cause on Pleadings.</p> <p>Where a cause is submitted on the pleadings, consisting of bill, answer, and replication, the answer must be taken as true, and the only facts which can be considered as established by the complainant are those set out in the bill which are not properly negatived by the answer.</p> <p>2. Same — Sufficiency op Answer.</p> <p>An answer which specifically traversed the allegations of the bill, and also contained a general denial, held sufficient to put in issue all the material allegations of the bill, although as to one of such allegations it was not technically responsive.</p>

<p>S. Collision — Stabboaed Rule — Violation.</p> <p>Where'a steam tug and a steam canal boat approached each other, and the canal boat showed her red light to the tug, which showed her green light to the canal boat, but the tug did nothing to avoid collision, expecting that the canal boat would starboard and pass between the tug and another tug coming down the river, and a collision was caused apparently by the two tugs starboarding their helms and working about 500 feet off in the river, which was not justified by any signals, the canal boat having signaled that she intended to cross the bows of the tugs, as it was her duty to do, it being the duty of the tug to give way in compliance with the starboard-hand rule, the tug was liable for the collision.</p>

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

<p>1. Towage — Care and Skill Required of Tug and Tow.</p> <p>While the obligation of an insurer, or even of a common carrier, Is not imposed by law upon towing boats, they are required to have a general knowledge of the situation and its difficulties, and to exercise the care and skill of prudent navigators to avoid injury to their tow or to other vessels, while the duty rests on the tow to exercise all reasonable care to the same end, and particularly to promptly conform to and obey the signals of the pilot tug. i</p> <p>2. Collision — Moving and Moobed Vessels — Care Required oe Moving Vessel.</p> <p>A moving vessel Is bound to avoid collision with one at anchor or moored, when she can do so with reasonable care, having regard to her own safety ,* and this although the stationary vessel may be in an improper or an unsafe place.</p> <p>3. Same — Presumption oe Fault.</p> <p>When injury results from collision to a vessel moored outside of the channel used by navigating vessels, tbe presumption is that the moving vessel was in fault, and tha burden rests on her to show that the accident could not have been avoided by the exercise of reasonable care and skill.</p> <p>4. Same — Steamer in Tow and Moored Vessei>-Fault oe Tug.</p> <p>The steamer Crystal, which had been disabled, was moored on the inside of the Erie Basin Breakwater at the port of Buffalo, some 25 or 30 feet from the channel used by vessels passing from a dock to the open lake, and opposite a bend in such channel. The steamer Tacoma, which had loaded at the docks, and was being towed out by two tugs, one ahead and one astern, failed to make tbe turn in the channel, hut continued straight ahead, and came into collision with the Crystal. Held, on the evidence, that the Crystal was in a proper place; that the Tacoma was not in fault, it being shown that she was properly manned and efficiently handled, and that all signals given by the pilot tug were obeyed with reasonable promptness; but that the collision was due to the failure of the' rear tug to properly assist in turning the Tacoma, which she was unable to do because she had disabled her paddle wheel through negligently striking a rock when leaving the slip.</p> <p>5. Towage — Tugs in Common Employment — Liability eor Each Other’s Fault.</p> <p>Where by a single contract with the common owner two tugs were employed generally to tow a steamer, both are liable for an injury to another vessel through a collision with the tow, resulting from the failure of either tug to properly perform the service.</p>

On Application for a Review of a Decision of the Board of General Appraisers. The decision under review (G. A. 5,472, T. D. 24,780) reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Lahey & Duncan. The opinions filed by the board read as follows: Somerville, General Appraiser.

<p>%, Banks as Collection Agents — Forwarding Draft for Collection-Usage.</p> <p>One depositing in a bank for collection at his risk a draft on a person in a distant city is presumed to know that, in accordance with general usage, the draft will be forwarded to another bank at the place of the drawee’s residence for collection, and that the proceeds will be remitted in bank exchange, and to have contracted with reference to such usage.</p> <p>2. Same — Liability for Proceeds — Direction as to Manner of Remittance.</p> <p>A bank forwarding a draft for a customer for collection by another bank did not, by giving directions that the proceeds be remitted in New York exchange, change the relation between the two banks from that of principal and agent to one of creditor and debtor, with respect to the money collected, so as to render it liable to the owner of the draft for the proceeds on the failure of the receiving bank after making the collection, but before remittance, on the theory that it had by such direction deprived Mm of the right to recover the proceeds from the receiver of the insolvent bank, as a trust fund.</p> <p>¶ 1. Presumptions as to customs and usages, see note to Great Western Elevator Co. v. White, 56 C. C. A. 394.</p>

For the purpose of the opinion in this ease I adopt the agreed statement of facts as follows: The defendant, Leo Won Tong, was arrested in the city of St. Louis, Mo., on the 25th day of July, 1904, by the United States marshal for the Eastern District of Missouri, under and by virtue of a warrant issued by Byron F. Babbitt, United States commissioner, on complaint of A. C. Ridgway, Chinese inspector, charging that the said Leo Won Tong, late of the city of St. Louis, in the…

<p>1. Equity — Pleading—Multifaeiousness.</p> <p>A bill to require an accounting from defendant as an agent is not mnEtifarious because different and separate transactions are set out, all growing out of the agency, and a discovery and accounting demanded as t®> each, nor because as to some of such transactions, if stated alone, complainant would have a sufficient remedy at law.</p> <p>2. Federal Courts — Equity Pleading.</p> <p>The federal conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), by its terms does not apply to equity causes, in which the federal courts are governed by the rules of equity pleading, regardless of the local practice.</p> <p>3. Equity Pleading — Answer and Cross-Bill.</p> <p>An answer and a cross-bill in equity should be separate pleadings, although they may be filed under one cover.</p> <p>4 Same — Plea—Sufficiency.</p> <p>A plea of the statute of limitations to a part of a bill alleging a distinct cause of action charging fraud and praying for discovery must, under the requirement of equity rule 32, be supported by an answer denying the fraud and the facts on which the charge is founded.</p>

<p>In Bankruptcy. On petition to set aside discharge.</p>

<p>1. Bankruptcy — Jurisdiction op Court — Adverse Claim.</p> <p>A third person, who took goods from the possession of a bankrupt on a writ of replevin from a state court, after the petition in bankruptcy had been filed and a receiver appointed thereon, may be cited before the referee, and his rights determined in a summary proceeding, the property, when taken, having been constructively in the possession of the bankruptcy court; and he is not exempted from such proceeding by a provision of an order consolidating with such involuntary proceedings the proceedings on a voluntary petition subsequently filed that it should be “without prejudice to interested parties.”</p>

<p>A Bankruptcy — Jurisdiction op Court — Adverse Claims.</p> <p>A referee is without jurisdiction in a summary proceeding to require a third person to turn over to a trustee in bankruptcy money or property to which he asserts an adverse claim, where such claim is made with the apparent intention to defend the same in good faith, and is not merely colorable.</p>

On Application for Review of a Decision of the Board of General Appraisers. The decision under review (G. A. 4,615, T. D. 21,859) overruled the protest of Spencer Borden against the assessment of duty by the collector of customs at the port of New York.

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

<p>On Motion by Defendants to Quash Service.</p>

On December 9, 1901, the city of Davenport exhibited its bill of complaint against William Bussell Allen, Elizabeth D. Donaldson, Thomas Allen, George W. Allen, Annie L. A. Chauvenet, Alice N. A. Atwater, and Annie Bussell Allen, who are the appellants in case No. 1,974, in the district court of Scott county, state of Iowa.

<p>1. Criminal Law — Appeal—Assignments of Error.</p> <p>Assignments of error, stated in general terms, and which are discussed in the brief of plaintiff in error in such general language as to cast upon the court the burden of searching the record to ascertain the precise propositions of law relied on and the facts which render them applicable, will, ordinarily; not be considered.</p> <p>2. Same — Requests to Charge.</p> <p>Peremptory requests to charge, based upon a partial statement of the facts, or which are not properly qualified to render them applicable to the facts shown in evidence, are ineffectual to sustain assignments of error based on their refusal, and will not be considered by the appellate court unless in exceptional cases.</p> <p>3. Post Office — Use of Mails to Defraud.</p> <p>Issues, evidence, and instructions considered in a prosecution based on Rev. St. § 5480, as amended by Act March 2, 1889, c. 393, § 1, 25 Stat 873 [U. S. Comp. St. 1901, p. 3696], for fraudulent use of the mails.</p> <p>4. Same — Prosecution-Effect of Order for Trial of Indictments Together.</p> <p>Rev. St. § 5480, as amended in Act March 2, 1889, c. 393, § 1, 25 Stat. 873 [U. S. Comp St. 1901, p. 3696], making the use of the mails to defraud a criminal offense, provides that an indictment thereunder may charge offenses to the number of three when committed within the same six calendar months, but the court thereupon shall give a single sentence. Rev. St § 921, [U. S. Comp. St. 1901, p. 686], provides that a court of the United States, when causes of a like nature or relative to the same question are pending before it, may “make such orders or rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay, * * * and may consolidate such causes when it appears reasonable to do so.” Nine indictments were returned against defendant under said section 5480 [U. S. Comp. St. 1901, p. 3696], each containing three counts, all relating to the same alleged scheme to defraud, but charging different mailings, all within the same six calendar months. The record showed that “by order of the court the said nine indictments were tried together and at the same time, and upon each of the said nine indictments separate verdicts were rendered,” and separate sentences were imposed under the several indictments. Held, that the indictments were not consolidated, which would, in effect, defeat the implied prohibition against joining more than three offenses in the same indictment, and that the only effect of the order was that all the indictments should he tried together to the same jury, leaving each party with the same material rights as though tried separately.</p> <p>5. Jury — Peremptory Challenges — Effect of Trial of Indictments Together.</p> <p>That a number of indictments against the same defendant under Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], for using the mails to defraud, are by order of the court tried together to the same jury, does not affect the right under Rev. St. § 819 [U. S. Comp. St. 1901, p. 629], to three peremptory challenges for each indictment.</p> <p>¶ 1. See Criminal Law, vol. 15, Cent. Dig. § 2957.</p> <p>Aldrich, District Judge, dissenting.</p>

<p>1. Admiralty — Appeal—Review.</p> <p>Where a computation made by a commissioner in admiralty contains a plain error, which was called to the attention of the court, it may be corrected in the appellate court, although no formal exception was taken on that ground to the commissioner’s report.</p> <p>2. Same — Interest.</p> <p>The allowance of interest on an adjustment of conflicting claims in admiralty is discretionary with the court.</p> <p>3. Same — Erroneous Obdeb.</p> <p>One who acted as agent for a party in obtaining an erroneous judgment directing the sale of a cargo, but who was not a party to the record, and had no personal interest in the suit, cannot be held liable in damages as a tort feasor on account of the sale.</p> <p>¶ 2. Sec Admiralty, voL 1, Cent Dig. § 60S.</p>

<p>1. Judges — Action to Charge with Civil Liability.</p> <p>Under the settled rule that judges of courts of general jurisdiction are not subject to civil actions by private suitors for their acts unless such acts are clearly outside the jurisdiction of the court in which they preside, a declaration does not state a cause of action, within the exception to such rule, by a mere general allegation that the acts complained of were not judicial acts, and were done without authority or jurisdiction, where the particular acts set out do not sustain such general allegation.</p> <p>2. Action in Forma Pauperis — Dismissal—Statute Construed.</p> <p>The provision of Act July 20, 1892, c. 209, § 4, 27 Stat. 252 [U. S. Comp. St. 1901, p. 707], authorizing the court to dismiss an action brought thereuncfer in forma pauperis if satisfied that the alleged cause of action is frivolous or malicious, applies to cases where the affidavit of poverty Is filed simultaneously with the filing of the writ.</p> <p>3. Dismissal — Frivolous Actions — Powers oe Court.</p> <p>Aside from any statutory authority, a court of general jurisdiction has power on its own motion to dismiss an action as frivolous where the pleadings present no cause of action recognized by the law.</p>

<p>Appeal from the District Court of the United States for the District of Maine.</p> <p>In Admiralty. Suit against tug for injury of tow by grounding.</p>

In Equity. Suit for infringement of letters patent No. 492,913, for an electric lamplighter, granted to Josephus C„ Chambers March 7$ 1893. On motion for preliminary injunction.

<p>In Equity. On motion to remand to state court.</p>

<p>1. Bankruptcy — Manufacturing Corporation — Laundering op New Articles.</p> <p>A corporation conducting a laundry, the largest part of its business being the washing, starching, ironing, and polishing of collars, cuffs, etc., for manufacturers, before they are put on the market, is engaged principally in manufacturing, and is subject to proceedings in involuntary bankruptcy.</p> <p>¶ 1. What persons are subject to bankruptcy law, see note to Mattoon Nat Bank v. First Nat Bank, 42 C..C. A. 4.</p>

On Application for Review of a Decision of the Board of General Appraisers. These proceedings were brought by the Crucible Steel Company of America for review of a decision affirming the assessment of duty by the collector of customs at the port of New York.

<p>1. Account Stated — Implied Assent of Pasty to be Chabged — Denial of Liability.</p> <p>Where one to whom a statement of account is presented disputes its correctness or denies his liability for any reason, whether valid or not, £5 will not support an action as an account stated.</p> <p>¶ 1. See Account Stated, vol. 1, Cent. Dig. § 18.</p>

<p>On Motion to Set Aside Service.</p>

<p>1, Bankruptcy — Surety Debts — Dividends on Claims Secured by Collateral. ! '</p> <p>Creditors who have proved claims against the estate of a bankrupt, on which he was liable as surety or indorser, and which are also secured by collateral, will be required to exhaust the collateral before receiving dividends, and are entitled to dividends only on the balance due after the proceeds of the collateral have been credited.</p>

<p>X. Collision — Steamer and Scow Adrift at Night — Burden of Proof.</p> <p>A scow which was cast loose by a dredge after being loaded in the evening, and drifted with the wind and tide across the channel, also carrying her light at the stern, where it was likely to be mistaken for a range light, or to mislead another vessel as to her position, has the burden of establishing by clear evidence that a steamer which came into collision with her was in fault.</p> <p>2. Same — Evidence Considered.</p> <p>Evidence considered, and held insufficient to establish the fault of a steamer for a collision with a scow drifting in a channel at night, either because she did not keep on the outside of the dredged channel, there having been no apparent necessity for so doing, or for the failure to have a lookout, it not appearing that the presence of one would have availed to prevent the collision, and those having charge of the scow being clearly negligent in allowing it to drift across the channel without necessity therefor.</p>

<p>1. Corporations — Suit by Stockholder.</p> <p>The provision of equity rule 94 that a bill by a stockholder, founded on rights of the corporation, shall be verified by oath, cannot be applied to a bill filed in a state court, and from thence removed to a federal court.</p> <p>2. Equity Pleading — Demurrer.</p> <p>A general demurrer going to the whole bill must be overruled where there is any part of the bill which the defendant ought to answer.</p> <p>3. Corporations — Refusal of Access to Books — Remedy of Stockholder.</p> <p>Ordinarily, the remedy of a stockholder who has been refused access to the books of the corporation is by mandamus, and section 44 of the general corporation act of New Jersey (P. L. 1896, p. 292), which provides that the Supreme Court or Court of Chancery “may upon proper cause shown” summarily order a corporation of the state to bring its books within the state, and keep them therein for such time and at such place as may be designated, does not confer power on a court of equity to make such an order except where the books are required for some proper judicial purpose, such as for evidence in some pending cause or proceeding for discovery, and a stockholder cannot maintain a suit in equity to require the corporation to bring its books into the state merely that he may have access to them.</p> <p>¶ 2. See Equity, vol. 19, Cent. Dig. § 508.</p> <p>é. Same — Suit by Stockholder to Compel Declaration op Dividend.</p> <p>A stockholder cannot maintain a suit in equity against the corporation, and its directors to compel the declaration of a dividend, where it is not shown that he has made application therefor to the directors, or that such an application would not be given proper consideration.</p>

In Bankruptcy. On review of referee’s decision. The following is the opinion of Dexter, special commissioner: .This is a proceeding instituted by Mrs. B. Ellen Burke to reclaim certain copyrights, the record titles to which stand in the name of the bankrupt corporation. The essential facts may be very briefly stated.

<p>On Motions to Remand to State Court.</p> <p>These actions were commenced in the district court of Woodbury county, Iowa, and respectively removed to this court by the defendants, and the plaintiff moves to remand them to the state court. The petition filed in the state court in No. 381 against the Chicago, Milwaukee & St. Paul Railway et al. alleges, in substance: That the defendant Chicago, Milwaukee & St. Paul Railway Company is a corporation organized under the laws of the state of Wisconsin as a railway corporation, and owns and operates a line of railway in said state and other states, including the state of Iowa, and to the city of Sioux City therein, and is a common carrier of passengers and property over its said lines of railroad. That the defendant Western Car Association is a corporation or association composed of different railroad companies, including the defendant railway company, running into said city of Sioux City, having its place of business in said ci1y; and the defendant A. C. Jones is the general manager of said association, and controls and directs the handling of the freight and cars by the railroads belonging to said association. That said city of Sioux City is a terminal point of said defendant railway company, where it has constructed and uses side tracks and switches in and about the transaction of its freight and other business as a common carrier of property and passengers to, from, and in said city. That plaintiff is a corporation duly organized under the laws of Iowa, with its principal place of business at said city of Sioux City, and is there engaged generally in the business of buying and manufacturing into flour, feed, and other products, large quantities of wheat, oats, corn, and other like cereals, and shipping said grain in large quantitiesi to its mills in said city (which it owns or controls and operates in such business), and its manufactured product in large quantities from said mills for export to various places in the United States, Canada, and to foreign countries over the defendant’s line of railroad and those of other railroads running into said city of Sioux City. The aggregate of its shipments to and from its mills amounts to more than 4,500 car loads annually, a large part of which has been over defendant’s line of railroad for a number of years. That since about December 7, 1903, the said defendant railway company, at the instance of defendant A. C. Jones, as manager of the defendant Western Car Association, has refused to perform its duties as a common carrier of property, and has refused to deliver to plaintiff at its city mill and to receive from it its manufactured product for shipment from said mill, because of the refusal of plaintiff to pay to said Jones a sum of money demanded by him, and which he claims is owing him by plaintiff for switching cars, but which plaintiff denies that it owes. That by reason of the defendant railway’s refusal to so perform its duty as a common carrier of property the plaintiff is unable to operate its said mills to their full capacity, and it has suffered and will continue to suffer great damage by reason of the failure of the defendant to perform its said duty as a common carrier of property, and it has been damaged thereby in the sum of $30,000. That plaintiff has demanded of defendants in writing that defendant railway company perform its said duty as a common carrier of property, which it neglects and refuses to do. Wherefore plaintiff prays for a peremptory writ of mandamus to issue against said defendants, and each of them, commanding them forthwith to switch and place upon the track of the Mystic Milling Company at its said city mill all loaded cars consigned to plaintiff, including all cars upon the tracks of said defendant railway company at Sioux City, Iowa, and that they place said cars at i the proper places on said tracks for unloading the same, and that they switch and remove from said mill track all empty cars now upon said track, and commanding them to continue the switching of cars as aforesaid to and from said track in the future as the same may be consigned to and from the said plaintiff; and plaintiff further asks that it have judgment against the defendants and each of them for the sum of $30,000 damages, and for costs of this action. The defendants in due time removed said cause to this court upon the ground of the diverse citizenship of the parties. The record has been filed in this court, and the plaintiff moves to remand said cause to the state court upon the grounds (1) that this court has no jurisdiction of the subject-matter of the action; (2) that the action is not of a civil nature within the meaning of the removal act of 1887-1888 (Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]).</p> <p>The plaintiff’s petition in each of the other actions against the defendants therein, and defendants’ petition for removal of the same to this court, and the motions to remand, are substantially the "same as in the case of the Chicago, Milwaukee & St. Paul Railway Company et' al., except as to the amount of property received and shipped over the line of said respective defendant railway companies and the amount of damage sustained by plaintiff, which is alleged to be $20,000 in each case.</p>

<p>1. Bankruptcy — Partnership Debts — Firm Note Given eor Indivíbual Debt.</p> <p>A partner cannot bind tbe firm by notes given in the firm name in renewal of his individual notes, and the burden rests upon the creditor seeking to prove the same against the partnership estate in bankruptcy to show that the other partner or partners knew of the transaction, and assented thereto.</p>

<p>In Bankruptcy. On claim of the Federal Bank of New York to recover the proceeds of collateral collected by the receiver and trustee.</p>

In Bankruptcy. On petitions of the Moline Plow Company and the Rock Island Plow Company for review of orders of referee denying their claims to property in custody of the trustee of said bankrupt.

<p>On Application to Compel Production and Allow Inspection of Books Before Trial at Law.</p>

<p>1. Appealable Orders — Denying Leave to Intervene.</p> <p>An order denying the petition of a bondholder for leave to intervene in a foreclosure suit brought by the mortgage trustee as representing all the bondholders held discretionary, and not appealable. Land Title & Trust Co. v. Asphalt Co. of America (C. C. A.) 127 Fed. 1, followed.</p> <p>2. Corporations — Suit by Trustee eor Bondholders — Discretion op Court as to Matters Litigated.</p> <p>A court of equity in a suit by a trustee for bondholders of a corporation to obtain a sale of securities pledged with it for the benefit of the bondholders is not required, at the instance of an intervening bondholder, to direct the adjustment by way of set-off! in the course of distribution of the fund realized of unliquidated demands against certain of the bondholders on account of unpaid stock subscriptions and other alleged liabilities growing out of the promotion of the corporation, but may properly leave such matters to be liquidated in independent suits, both because such is the more orderly course of procedure and because general creditors of the corporation as well as the bondholders are entitled to share in the proceeds of such recoveries.</p>

This is an appeal by creditors from an order dismissing their petition and refusing to adjudge the appellees bankrupts: The acts of bankruptcy charged are that the defendants, while insolvent, transferred portions of their property to some of their creditors, with intent to prefer such creditors over others. Bankr. Act July 1, 1898, c: 541, § 3, subd. “a,” cl. 2, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422].

In Equity. Suit for infringement of letters patent No. 542,565, for improvements in presses for making screw-insulators, granted to Seraphin Kribs July 9, 1895. On motion for preliminary injunction.

<p>In Equity. Suit for infringement of a patent. On rule to show cause why attachment for contempt should not issue.</p>

In Equity. Suit for infringement of letters patent No. 407,33% for apparatus for skelping or tube welding, granted to James A. Simpson, July 16, 1889. On final hearing." ,

<p>L Shipping — Injury op Schooner by Floating Ice — Negligent Anchoring by Dock Owner.</p> <p>Libelant’s schooner, after lying for 10 days at respondent’s docks, on the New Jersey side of the Hudson river, waiting to be loaded with coal, was finally loaded on Saturday night, and on Sunday morning, after the loading was completed, respondent had her towed out into the river and anchored. It was very cold, and the river was filled with floating ice, which at that time had been driven by the wind to the eastern side. Sunday evening the wind changed, and the ice was driven down stream against the schooner, causing her to drag her anchor and drift for two miles during the night, and inflicting such injury that it was necessary to unload and dock her for repairs. Libelant, who was master, was at the docks on Saturday, but could not learn when the vessel would be loaded,</p> <p>¶ 1. Loss or damage by perils of the sea, see note to The Dunbritton, 19 C. C. A. 465. and was absent that night, returning Sunday, when, finding his vessel in the stream, he protested, and asked • that she be returned to a place of safely, and, this not being done by respondent, he endeavored to procure a tug, but could not, owing to its being Sunday. There were only two men on the schooner, who were unable to navigate her or raise the anchor, nor would it have been safe to attempt to navigate her without a tug. Meld, that respondent was chargeable with negligence which rendered it liable for the resulting damages; no contributory fault being shown on the part of libelant.</p>

Indictments for Subornation of Perjury. On Demurrers. The following is one of the indictments found: United States of America. Western District of Tennessee. In the District Court of the United States within and for the Eastern Division of the said District. In the Sixth Judicial Circuit of the United States. October Term, 1893.

<p>In Equity. Suit by receiver in bankruptcy. On motion by defendants for cost and injunction bond.</p>

<p>In Bankruptcy. On involuntary petition.</p>

<p>1. Jurisdiction op Federal Courts — Residence oe Parties — Ancillary Suit.</p> <p>A bill filed on the equity side of a federal court to enjoin the further prosecution of an action at law therein, by the defendant in such action, who is a nonresident of the state, against the plaintiff therein and a nonresident corporation, which is not a party to the law action, is not ancillary in such sense as to give the court jurisdiction over the corporation-defendant by service on its attorneys within the' district, or on such defendant outside of the district, but is an original suit, within the meaning of the judiciary act of March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508], which requires such suits to be brought in the district of the residence of either the plaintiff or defendant.</p> <p>2. Same — Local Actions — Suit eor Cancellation oe Note.</p> <p>A suit in equity in a federal circuit court to enjoin the further prosecution therein of an action at law against complainant on a promissory note by a citizen and resident of the state in which the suit is brought, and to have such note canceled and delivered up to complainant, on the ground that it was obtained by fraud, is one to enforce an equitable claim to property within the district, within the meaning of section 8 of the judiciary act of March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], and the court is authorized by an order made thereunder to bring in the nonresident payee of the note, who is alleged in the bill to have or claim some interest therein.</p>

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

<p>1. Extradition — Interstate—Fleeing prom Justice.</p> <p>In construing a statutory provision excepting from the limitation of time for prosecuting crimes “any person fleeing from justice,” for the purpose of determining the sufficiency of an indictment to support proceedings for extradition, the exception should be held to apply to any person who, being within the state at the time the alleged offense was committed, failed for any reason to remain therein until the bar of the statute was complete, and it is immaterial that he did not leave for the purpose of avoiding prosecution. ,</p> <p>2. Same — Limitation oe Prosecution — Absence prom State.</p> <p>The New Jersey statute provides that no person shall be prosecuted for any offense not punishable with death unless indicted within two years from its commission, provided that the limitation shall not extend to any person fleeing from justice. Petitioner was indicted for an alleged offense committed in New Jersey some five years previously. It appeared that he then resided in the state, and continued to so reside for about a year thereafter, when he moved his domicile to another state. He was thereafter in the state temporarily from time to time, but not exceeding 18 months in all, including his time of residence after the time of the alleged offense. Held, that he was within the exception to the statute, and the indictment was not barred thereunder.</p> <p>¶1. See Criminal Law, vol. 14, Cent. Dig. § 278.</p>

<p>In Bankruptcy. Review of decision of R. T. Ervin, referee, overruling objections to the claim of A. Dacovich.</p>

<p>In Bankruptcy. On motion to dismiss bankrupt’s petition for discharge.</p>

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

<p>1. Equity Pleading — Discoveby—Effect of Waives of Answeb tjndeb Oath.</p> <p>A waiver of answer under oatb in a bill destroys its efficacy as a bill of discovery, and tbe defendant is not required to answer interrogatories propounded therein.</p>

<p>In Equity. Suit for injunction. On demurrer to bill.</p>

<p>At Law. Sur rule by defendant for judgment non obstante veredicto on reserved point, and rule by plaintiff for a new trial.</p>

<p>L Federal Courts — Printing Record — Costs—Objections.</p> <p>Where, in a suit in equity in the federal court, complainant made no objection that certain testimony was immaterial and irrelevant, and made no motion to strike out the same before the testimony was printed, he could not object, after judgment in favor of defendant, to defendant’s taxation of the amount paid for printing such testimony as a part of the costs.</p> <p>¶ 1. See Costs, vol. 13, Cent Dig. § 969.</p>

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

<p>1. Corporations — Liability op Stockholders after Dissolution — Torts op Corporations.</p> <p>In the absence of statutory authority therefor, stockholders of a dissolved corporation cannot be held individually liable for damages caused by an act of negligence of the corporation committed in the conduct of its business before dissolution.</p>

<p>1. Assumpsit — Pleading under Pennsylvania Statute — Affidavit of Defense.</p> <p>The Pennsylvania Procedure Act of May 25, 1887 (P. L. 271), which provides that in the ¿ction of assumpsit the plaintiff’s statement shall be replied to by affidavit, but which also includes in such action all demands formerly recoverable in debt or covenant, as construed by the Supreme Court of the state, entitles a plaintiff to judgment for want of an affidavit of defense only in actions on demands which are liquidated and certain, or which can be made so by proper averments; and an affidavit of defense is not required in an action to recover damages for the breach of a contract by defendant’s failure to perform it in a proper manner.</p> <p>2. Same.</p> <p>In an action in which no affidavit of defense is required under the Pennsylvania statute (P. L. 271), a plaintiff is not entitled to judgment on the ground that an affidavit of defense filed is insufficient.</p> <p>¶ 1. See Contracts, vol. 11, Cent. Dig. § 1704.</p>

<p>In Bankruptcy. On review of referee’s decision with respect claim of Abbie I,. Adams.</p>

<p>In Equity. Suit by trustee in bankruptcy to establish rights in property. On motion for appointment of receiver.</p>

<p>%. Judgment — Entry of Record — North Dakota Statute.</p> <p>Rev. Codes N. D. 1899, §§ 5479, 5487, 5488, require the clerk of the district court to keep among the records of the court a judgment book, in which the judgment in each case is to be entered by the clerk upon the order of the court or judge. In one court it was the practice for the clerk, as each order for judgment was made, to promptly write out the judgment with a typewriter upon separate sheets of paper of uniform size, to sign the judgment and affix the seal of the court, to number the sheets consecutively according to the chronological order in which the judgments were written out, and to place and securely keep these sheets in their proper order in a compact parcel in an inclosed box or case in the form of a book labeled "Judgment Book,” until there should be sufficient of them to make a bound volume, when they were permanently bound, together, preserving the same order, and with the same paging. Held, that such practice must be presumed to have been known to and approved by the court, and that the sheets as kept constituted a judgment book within the statutes, and a judgment from the time of its entry therein was as effective for all purposes as though entered in a bound volume.</p> <p>8. Execution — Property Subject to Sale — Right of Redemption in Lands.</p> <p>Under Rev. Codes N. D. 1899, §§ 5541, 5544, 5548, which gives a judgment debtor one year in which to redeem land from a sale on execution, during which time he retains the right of possession and the legal title, he has during such year a substantial interest in the property, which, under section 5507 of such Codes, as well as by the rule prevailing elsewhere, is subject to sale on execution.</p> <p>8. Same — Property Fraudulently Transferred — North Dakota Statute.</p> <p>Under Rev. Codes N. D. 1899, §§ 5052, 5080, which provide that every transfer of property with intent to defraud creditors is void as against all creditors of the debtor, and that one who has fraudulently dispossessed himself of property may be treated as though he still had possession, the title and ownership of property so transferred remains in the debtor, and is subject to levy and sale od an execution at law against him in like manner as though no transfer had been attempted. This is true, not only of transfers directly from the debtor made with such fraudulent Intent, but also of transfers whereby his title and ownership are passed to another for the like dishonest purpose through the agency of a judicial sale.</p> <p>4. Judgment on Collateral Note — Satisfaction of Principal Debt.</p> <p>A holder of two notes against the same maker, one of which is collateral to the other, and one having an indorser, is entitled to sue and recover judgment upon each; but the judgment upon the collateral note is also collateral, and is satisfied by a satisfaction of the principal judgment, and a sale of property thereunder after such satisfaction is wholly unauthorized.</p> <p>6. Fraudulent Conveyance — Subsequent Judgment against Grantor — Not Conclusive upon Grantee.</p> <p>A judgment against a grantor in a fraudulent conveyance, rendered subsequently to the conveyance, is not conclusive upon the grantee as to the existence or amount of the debt at the time of the transfer, becirugp he cannot be prejudiced in respect of a pre-existing right by a judgment to which he is a stranger.</p> <p>6. Execution Sale — Right of Redemption Purely Statutory.</p> <p>The right of redemption from execution sales is purely statutory, and the extent or measure of the right is to be found in the statutory terms prescribing the time and method of its exercise and designating the persons who may exercise it.</p> <p>T. Same — Enforcement of Right by Suit in Equity after Expiration of Prescribed Time.</p> <p>A statutory right of redemption may be enforced in equity, when its exercise in conformity with the statutory requirements is wrongfully denied, obstructed, or prevented, or where, before the right can be exercised, it is necessary to determine by judicial proceedings in whom the right rests, from whom the redemption can be made, or the amount requisite to effect it; but a redemption cannot be otherwise accomplished through a suit in equity after the expiration of the prescribed time.</p> <p>8. Same — Facts—Ruling.</p> <p>The purchaser at an execution sale upon a judgment rendered in a state court brought a suit in equity in a federal court to have a prior conveyance declared fraudulent as to creditors and to have the title quieted, subject only to the right of the grantee to redeem from' the execution sale, the time for which had not expired. The right of the grantee to redeem was clear and was conceded. It was well known that redemption could be made by payment to the sheriff, and the amount was readily ascertainable. Redemption was not made or offered to be made under the statute within the time prescribed, but on the day before the time expired the grantee paid into the registry of the federal court the requisite amount, to be there held to abide the final decree, without prejudice to the rights of the complainant. In that suit the grantee sought to entirely avoid the execution sale upon grounds which were obviously without merit and could not have been presented with any reasonable hope of success. Redemption was contemplated only in the event that the effort to sustain the fraudulent conveyance should fail and the execution sale should be sustained. Held, that the payment into the registry of the federal court was not the equivalent of redemption under the statute or of an offer thereof; that the course pursued was vexatious and devoid of honest purpose, and equity would not relieve from the failure to redeem under the statute and within the prescribed time.</p> <p>9. Same.</p> <p>The same land was sold upon execution to satisfy each of two judgments for the same debt. The judgment creditor, who became the purchaser at each sale for the full amount of the judgment, acted in the belief that the judgments represented separate debts, and the circumstances tended to justify that belief. A grantee of the debtor under a prior conveyance made to defraud creditors knew, as did the debtor, for whom she was secretly acting, that the two judgments were for the same debt. The grantee sought to avoid both sales upon other grounds, and so to defeat a claim which she knew to be honest, rather than to redeem within the statutory period from the sale which was valid. Held, that the case was not one in which redemption could be enforced in equity after the statutory period had expired.</p> <p>1A. Equity — Adverse Equities Protected by Granting Relief upon Condition.</p> <p>Adverse equities growing out of or closely connected with the subject-matter of a suit are protected by awarding a party the relief to which he is entitled only on condition that he accords to his adversary the corresponding right to which he also is entitled.</p> <p>II. Fraudulent Conveyances — Setting Aside in Equity — Reimbursement of Grantee for Expenditures.</p> <p>A grantee in a fraudulent conveyance, who was a conscious participant in the fraud, on the setting aside of the conveyance is not entitled to recover expenditures made to protect his title; but one claiming through him in good faith, who did not participate in the fraud, although buying under such circumstances as to be constructively chargeable with notice, is in equity entitled to be reimbursed for expenditures in the payment of taxes or prior liens.</p> <p>12, Same — Purohasee Pendente Lite — Liability fob Costs.</p> <p>One who purchased an interest in land from a fraudulent grantee pending a creditors’ suit to set aside the conveyance, and furnished money to redeem from a lien prior to that of the complainant, and also to enable his grantor to continue the litigation, In the belief that the title acquired, was valid, Is entitled on a decree for complainant to be reimbursed for the amount expended in paying off the prior lien with interest from the date of payment, and to be subrogated to all the rights of the holder of the lien discharged, although they may extend to lands other than those included in Ms purchase. On the other hand, although not a party to the suit until shortly before the decree, he is chargeable as against his claim for reimbursement with the taxable costs incurred in the suit after the date when he became a party in interest</p>

<p>1. Statutes — Construction—Retrospective Operation.</p> <p>The rule that statutes are to be given a prospective, rather than a retrospective, operation, like other rules of interpretation, is resorted to for the purpose of giving effect to the presumed and reasonably probable intention of the’ Legislature when the terms of the statute do not of themselves make the intention clear, and cannot be invoked to change or defeat the intention when it is made obvious or certain by the terms of the statute.</p> <p>3. Same — Limitations—Colorado Statute.</p> <p>Act Colo. April 29, 1895 (Sess. Laws 1895, p. 239, c. 106), as amended by Act April 6, 1899 (Sess. Laws 1899, p. 248, c. 113), relating to limitation of actions on foreign judgments, and being a re-enactment, with certain provisos added, of a prior statute, which it in express term's repealed, was intended to apply to actions on judgments rendered prior as well as subsequent to its passage.</p> <p>8. Limitation — Actions on Judgments op Other States — Validity op StatUTE.</p> <p>The power of a state to prescribe a limitation for actions on judgments of the courts of other states, different from that prescribed for actions on judgments rendered within the state, is subject to the fundamental condition that a reasonable time must be given for the exercise of the right of action; otherwise the law is invalid, as in violation of the constitutional provision that no person shall be deprived of property without due process of law.</p> <p>4. Same.</p> <p>The obligation of a contract is not terminated by the rendition of a judgment thereon, but continues until the debt is paid, and a law of a state which unreasonably restricts the time for commencing an action in its own courts for the enforcement of a judgment rendered by a court of another state on an existing contract is unconstitutional as impairing the obligation of the contract.</p> <p>5. Judgments — Right to Enforce by Action in Other States.</p> <p>In the courts of other states the judgment of a court of one state is not impeachable except for fraud or want of jurisdiction, is indisputable proof that it rests upon an unanswerable cause of action, is conclusive evidence that the right to its enforcement is wholly unaffected by any laches or lapse of time which preceded its rendition, and gives a right of action for its enforcement, subject to limitation and other laws of the forum which regulate, but do not deny, unreasonably restrict, or oppressively burden, the exercise of that right.</p> <p>8. Limitation — Reasonable Time.</p> <p>A limitation is unreasonable which does not, before the bar takes effect, afford full opportunity for resort to the courts for the enforcement of the rights upon which the limitation is intended to operate; and this opportunity must be accorded in respect of existing rights of action after they come within the present or prospective operation of the statute and in respect of prospective rights after they accrue.</p> <p>T. Same — Unreasonable Limitation — Colorado Statute,</p> <p>Act Colo. April 29, 1895 (Sess. Laws 1895, p. 239, c. 106), as amended by Act April 6, 1899 (Sess. Laws 1899, p. 248, c. 113), prescribing a general limitation of six years for all actions on judgments rendered without the state, and by provisos declaring that, if the judgment be based on a cause of action which accrued more than six years prior to the commencement of the action on such judgment, the action, if against a bona fide resident of the state, shall be barred unless commenced within three months after the rendition of the judgment sued on, is a law of limitation only in so far as it attempts to interpose a bar because of inaction or laches in enforcing a judgment after it is obtained and a right of action thereon accrues, and is unconstitutional and void, as imposing an unreasonable limitation as applied to an action within the proviso on a judgment of another state based on contract, and rendered prior to the passage of the act upon a cause of action which accrued more than six years before.</p>

This action involves a controversy over the ownership of the proceeds of a policy of insurance between the administrator of the estate of Melissa A. Gordon, the plaintiff, and the Ware National Bank, the defendant The insurance company admitted its liability, and paid into the court below the amount owing upon the policy, which insured the life of William Gordon for $5,000. All the premiums required to be paid by this policy had been paid by Gordon before the year 1879.

<p>1. Practice — Splitting Cause of Action Bars.</p> <p>One who avails himself, by action or by defense to an action, of a part of an indivisible claim or cause of action, thereby estops himself from again maintaining an action or defense founded upon it One may not split his cause of action.</p> <p>2. Res Adjudicata — Failure to Interpose Defenses.</p> <p>Judgment in an action in which the defendant fails to interpose purely defensive matters renders such matters res adjudicata, and estops him from obtaining any relief on account of them.</p> <p>8. Same — Failure to Interpose Facts Constituting Affirmative Action.</p> <p>The failure by a defendant to interpose before judgment facts which constitute both a defense to the action and an affirmative cause of action against the plaintiff does not estop him from enforcing the latter.</p> <p>4. Same — Defendant has Option to Use Such Facts as Defense or Affirmative Cause.</p> <p>A defendant who has a claim which constitutes a defense to the action, against him and an affirmative cause of action against the plaintiff has the option to use it for defense or for attack, but he cannot do both. If he avails himself of any part of it in defense of the action against him, he is thereby conclusively estopped from subsequently maintaining an action against the plaintiff upon any portion of it, and he loses the excess.</p> <p>B. Collateral Security-Wrongful Surrender by Pledgee.</p> <p>The wrongful surrender by a pledgee, either intentionally or through culpable negligence, of collateral security, furnishes the pledgor with a cause of action against him in tort or upon contract, at his option, for the value of the securities thus surrendered.</p> <p>6. Same — Defense by Sureties — Wrongful Surrender by Pledgee.</p> <p>The wrongful surrender of collateral securities by a creditor, without the knowledge of sureties, for the payment of the debt, discharges them from liability therefor, either entirely or pro tanto, according to the value of the securities thus surrendered.</p> <p>(Syllabus by che Court.)</p>

<p>1. Insurance on Movable Property — Transfer op Policy to Property in New Location — Acts op Agents after Loss.</p> <p>Where a clerk in the office of a firm' of insurance agents, In the name of the firm and by Indorsement upon a policy insuring a stock of merchandise against loss or damage by fire while located in a designated building, transferred the Insurance to the same property in another location, where it was subsequently damaged by fire, acts and conversations of the agents, occurring after the fire and persuasively tending to show that they respected the transfer and treated it as obligatory, were competent and substantial evidence upon the issue whether the clerk had general authority from the agents to make such transfers, or, if not, whether this transfer was known to and approved by them before the fire, and justified the submission of that issue to the jury.</p>

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

<p>1. Injunction — Allowance.</p> <p>Where, in a doubtful case, the denial of a preliminary injunction would, on the assumption that the complainant ultimately will prevail, result in greater detriment to him than would, on the contrary assumption, be sustained by the defendant, through its allowance, the injunction usually should be granted.</p> <p>2. Same.</p> <p>The balance of convenience or hardship ordinarily is a factor of controlling importance in cases of substantial doubt existing at the time of granting or refusing the preliminary injunction.</p> <p>3. Same.</p> <p>Such doubt may relate either to the facts or to the law of the case, or to both. It may equally attach to, or widely vary in degree as between, the showing of the complainant and of the defendant, without necessarily being determinative of the propriety of allowing or denying the injunction.</p> <p>4 Same — Pbesebvation of Eund.</p> <p>Where the sole object for which an injunction is sought is the preservation of a fund in controversy, or the maintenance of the status quo, until the question of right between the parties can be decided on final hearing the injunction properly may be allowed, although there may be serious doubt of the ultimate success of the complainant</p> <p>5. Same.</p> <p>While the consideration that an appeal does not lie from an interlocutory decree denying a preliminary injunction is entitled to no weight where, on the application, it clearly appears that the complainant cannot prevail on the final hearing, it is often of controlling importance where, on such application, there is room for reasonable doubt as to the ultimate result.</p> <p>6. Same — Novel Questions of Law.</p> <p>In accordance with the foregoing principles, helé, that a preliminary injunction should issue in a case involving grave, novel and delicate questions of law and a controversy as to material facts bearing upon the equities, regard being had to the comparative hardship or convenience to the respective parties resulting from the awarding or denial of the injunction.</p> <p>(Syllabus by the Court.)</p>

In Equity. Original and cross bills. The first of the above-entitled cases is a bill in equity to establish between relatives the ownership of certain stock of a corporation known as the “Burnes Estate.” The business of the corporation is banking, real estate, and other lines. Cases 279, 280, and '283 are auxiliary to the main or first case, and take their places on the docket by way of cross-bills.

<p>1. Trust — Construction of Deed — Law Governing.</p> <p>Where a deed conveying property in, trust was acknowledged, delivered, and accepted by tbe trustees in New York, where the grantor then resided, and the property conveyed was stock in corporations organized in four different states, in the absence of any provision designating a place of performance, the instrument is governed and to be construed by the law of New York, without reference to the residence of the trustees or the subsequent place of residence of the grantor.</p> <p>2. Same — Rules of Construction — Gift.</p> <p>A deed conveying property in trust for the benefit of another by way of gift is to be construed solely with reference to the intent of the donor, unaffected by any presumption or equity in favor of the donee.</p> <p>3. Same — Income from Corporate Stock — Rights of Life Tenant and Remaindermen.</p> <p>Upon the question what constitutes income from corporate stock as between a life tenant entitled to the income under a deed of trust, and the trustees, who are required to preserve the capital for remaindermen, the courts are not bound by the name under which a distribution is made by the corporation to its stockholders, but must determine for themselves, from the facts and circumstances, whether the amount distributed is in substance Income or capital.</p> <p>4. Same — Dividend from Proceeds of Sale of Property.</p> <p>The owner of stock in a corporation engaged chiefly in the manufacture of sheet steel, and owning a large plant devoted to that purpose, conveyed such stock to defendants in trust, to keep the property so conveyed invested, and to pay the net income to the grantor during her life, and afterward to complainant, her daughter, during her life, on her death the capital to be distributed to other designated beneficiaries. Before the grantor’s death the company gave an option for the purchase of its steel plant and material on hand, and shortly after her death the sale was made in pursuance of such option, the company receiving a cash payment equal to 50 per cent, of its capital stock, and stock in the purchasing company equal in face value to six times its capital stock, all of which was distributed to its stockholders as a dividend, the company still retaining other subsidiary properties which it designed to operate. Helé, that such dividend was not net income earned during complainant’s life tenancy, to which she was entitled, but that the transaction was in substance a partial liquidation and distribution of capital by the company.</p>

<p>1. Process — Commencement oe Action by Notice — Conformity to State Pbactice</p> <p>Rev. St. § 911 [U. S. Comp. St 1901, p. 683], which provides that “all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue and shall be signed by the clerk thereof,” does not apply to a notice given under Code Va. 1887, § 3211, authorizing a judgment on a contract to be obtained on motion after 15 days’ notice to defendant, and the practice thereunder, which is for the plaintiff or his attorney to sign the notice and serve the same on defendant,, such a notice not being a “process issuing from the court” ; and under the conformity act (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) an action may be instituted by such a notice in a federal court in Virginia in accordance with the state practice.</p> <p>¶1. Conformity of practice in common-law actions to that of state courts», see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.</p>

In Equity. Suit on school bonds. On final hearing. This suit was commenced December 20, 1901, to recover the amount due upon certain negotiable school bonds and coupons attached issued by the Independent school district of Riverside, in Lyon county, a school corporation duly organized under the laws of Iowa. Finding of Facts.

<p>X. United States — Action against Revenue Officer foe Wrongful Seizure — Defenses.</p> <p>Rev. St. § 989 [U. S. Comp. St. 1901, p. 708], providing that “when a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him * * * in the performance of his official duty, and the court certifies that there was probable cause for the act, * * * or that he acted under the directions of the * * * proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall ♦ * * be paid * * * from the treasury,” clearly contemplates, and by implication authorizes, a recovery against a revenue officer for an official act, although done with probable cause or under orders from a superior, and hence neither of such facts constitutes a defense to an action against such an officer for an unwarranted seizure of property ; the effect of a finding of either fact by the court being merely to convert the judgment recovered into a claim against the government.</p>

In Equity. Bill to set aside a judgment entered on the verdict of a jury in favor of the defendant, James G. White, in an action at law in this'court brought by the complainant, Peleg A. Sanford, to recover damages for injuries sustained by him by reason of coming in contact with an obstruction placed in a public street by said White, and which obstruction is claimed to have been unauthorized and to have constituted a nuisance.

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

<p>1. Tax Sale — Validity op Deed — Pbopebty in Custody op Coubt.</p> <p>A tax deed, executed after the property has passed into the custody of a court by its appointment of a receiver for a mortgagee, is void, and ineffective to cut off the receiver’s right of redemption.</p>

<p>1. CONSPIBACY TO DEFBAUD UNITED STATES — ACTS CONSTITUTING OFFENSE.</p> <p>An indictment charges a conspiracy to defraud the United States, within Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], where it avers that defendants conspired to obtain the legal title to school lands within public forest reservations from certain states by means of acts and representations set out, and which are of such fraudulent character that the equitable title to such lands would remain in the states, and to then exchange such lands for public lands of the United States, under the provisions of Act June 4, 1897, c. 2, § 1, 30 Stat. 36 [U. S. Comp. St. 1901, p. 1541], which authorize such exchanges, but which contemplate that the government shall obtain the full, fee-simple title to the lands for which it makes the exchange, including the equitable as well as the legal title.</p> <p>2. Cbiiiinal Law — Removal of Peisoneb to Distbict of Columbia.</p> <p>Rev. St. § 1014 [U. S. Comp. St. 1901, p. 716], when construed in connection with Act Eeb. 21, 1871, c. 62, 16 Stat. 426, providing that all laws not locally inapplicable shall have the same force and effect within the District of Columbia as elsewhere within the United States, confers authority for the removal of a federal prisoner from another judicial district to the District of Columbia for trial on an indictment there found.</p>

<p>On Demurrer to Indictment</p> <p>C. J. Hamblett, U. S. Atty.</p>

At Law. Actions on life insurance policies. The following is a copy of plaintiff’s declaration filed October 20, 1903: Count 1.

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On exceptions to report of referee on contestation of the bankrupt’s discharge.</p> <p>Simmons, Tankersky & Clendenen, for the bankrupt.</p>

<p>1. Vacation of Judgment — Power of Court after Term.</p> <p>A judgment of forfeiture against imported merchandise for an alleged attempt to defraud the customs laws cannot be vacated on a petition filed after the term, and more than two years after its entry, to permit the importer to defend, on the ground- of irregularities in the procedure; no mistake or clerical error being alleged.</p>

<p>Application for Writ of Mandamus.</p>

<p>^Qa Application for Writ ©f Mandamus.</p>

<p>1. Circuit Court — Effect of Appeal from Interlocutory Order.</p> <p>An appeal from an interlocutory order of a Circuit Court granting or continuing an injunction or appointing a receiver, taken under the provisions of Act June 6, 1900 (31 Stat. 660, c. 803, § 7 [U. S. Comp. St. 1901, p. 550]); does not affect the power of the trial court to proceed with the cause with respect to any matter not involved in the appeal.</p>

<p>In Equity. On petition for allowance of counsel fees.</p>

<p>S. Bankruptcy — Banking Partnership — Right of Depositor to Set Off.</p> <p>On the bankruptcy of a banking partnership, a depositor having a credit balance In his account is entitled to set off the same against a note on which he is Indebted to the bank.</p> <p>2. Same — Transfer of Claims after Insolvency of Bankrupt.</p> <p>After a banking partnership, subsequently adjudged a bankrupt, had suspended payment and closed the bank, certain depositors, with full knowledge of the facts, assigned their claims against the bank to a firm of which one of the depositors was a member, and which was a debtor of the bank, for the purpose of enabling such claims to be set up as a set-off or counterclaim against the indebtedness. Held, that such transfers were an attempt to obtain an unlawful preference, and, having been made within four months prior to the bankruptcy, they were ineffectual to give any right of set-off to the assignee.</p> <p>& Same — Set-Off of Individual and Partnership Claims.</p> <p>A solvent partnership which is indebted to a bankrupt cannot set off against such indebtedness a claim due from the bankrupt estate to one of the partners.</p>

<p>1. Maritime Liens — Authority of Master to Create — Advances for Disbursements.</p> <p>A master has authority to pledge the credit of a vessel for money borrowed for disbursements only where a necessity exists for such funds to keep the vessel in employment. One so advancing money is not entitled to a lien merely by subrogation to liens which may thereby be discharged.</p> <p>2. Same.</p> <p>While a schooner lay at a port of discharge a receiver was appointed for her in a suit between the owners, who demanded her papers from the master, but the latter refused to surrender them until his wages for past services were paid. He was continued as master, and a day or two later went to libelant, a bank, which, at his request, advanced money to him on his drafts to disburse the vessel, having no knowledge of the receivership. The master used the funds in paying the wages due to the crew and himself, and for certain supplies, after which he left the vessel, and surrendered her to the receiver. Held that, conceding the claims paid to have been liens, no such maritime necessity for the loan appeared as to create a lien in favor of libelant therefor.</p> <p>3. Admiralty — Wrongful Attachment of Vessel — Liability for Damages.</p> <p>A libelant who proceeds in rem against a vessel in good faith and under advice of counsel, although unsuccessful in establishing a lien, is not liable in damages because of his attachment of the vessel beyond the taxable costs of the suit.</p> <p>¶ 3. See Admiralty, vol. 1, Cent. Dig. § 413.</p>

At Taw. On information for forfeiture of imported merchandise. This proceeding is brought by the United States for the forfeiture of certain diamonds imported at the port of St. Paul, Minn., by Henry Bockstruck, who, on entering the merchandise, made “the declaration of owner in cases where merchandise has been actually purchased,” according to the form set forth in section 5, Customs Administrative Act June 10, 1890, c. 407, 26. Stat 132 [U. S. Comp.

<p>Proceedings for Contempt in Violating Decree.</p>

<p>In Equity. Suit to restrain unfair competition in trade. On motion for preliminary inj‘unction.</p>

<p>In Bankruptcy. On certificate from referee.</p> <p>Rod Oliver was duly adjudged bankrupt September 22, 1903. In the preceding May he traded two certain bills of exchange or drafts to the Groesbeeck National Bank of Groesbeeck, Tex. These drafts were for $1,500 and $1,000, respectively, and were drawn by Rod Oliver on one Joe Peeples. They were made payable to the order of the Groesbeeck National Bank on November 1st after date, May 13, 1903, and before being received by the bank were duly accepted by the drawee, the acceptance being noted on the drafts. Peeples was the agent of Oliver to collect rents from the tenants of his farm lands, and it was understood between-all the parties at the time of the transaction that the drafts, when due, were to be paid out of the rents that would come into the hands of Peeples as such agent during the fall of 1903. “Value received and charge to account of rents for 1903,” was noted in the face of each draft. Oliver received a credit with the bank for the face value of the two drafts. Thereafter the Groesbeeck National Bank, becoming insolvent, was placed in the hands of a receiver. Thomas M. Thornton, as such receiver, now holds the draft for $1,500. The Groesbeeek National Bank, before maturity, and for value, transferred and indorsed the draft for $1,000 to the Hanover National Bank of New York City, and that bank is now its owner and holder. Thornton, as receiver, duly filed with the referee his proof of claim based upon the draft for $1,500, alleging its payment to be secured by a lien on all the rents for the year 1903 arising from the farm lands of the bankrupt. He filed a like claim with respect to the draft for $1,000 on which the Groesbeeek National Bank was indorser. Peeples collected rents, which were, in the course of administration, reduced to the possession of the trustee of the bankruptcy estate, and he now holds a fund resulting therefrom more than sufficient to pay the drafts. The referee, after hearing on issue made between Thornton, receiver, and the trustee, refused the application of the former to have his claims for $2,500 paid in full from this fund, and allowed them simply as unsecured claims against the bankrupt’s estate. It is of the referee’s action in this behalf that a review is sought.</p>

<p>In Bankruptcy. On question certified by referee.</p>

<p>1. Bankruptcy — Provable Debt — Creditor Receiving Preference.</p> <p>Where it appears that a creditor who filed a claim against a bankrupt estate had received a preference, he has the option to surrender the preference or abandon his claim; but, if he retains the preference, he is not entitled to a dividend.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 498.</p>

On August 1, 1899, J. J. O’Brien, an express messenger in the service of the American Express Company, was fatally injured by the derailment and wreck near Boone, Iowa, of a fast mail train of the Chicago & Northwestern Railway Company.

<p>Appeal from the Circuit Court of the United States for the Southern District of Iowa.</p> <p>The Phoenix Loan Association, a corporation organized under the laws of Missouri, and having its domicile at the city of St. Joseph, in that staje, became insolvent, and ceased the transaction of active business. The state supervisor of building and loan associations proceeded against the corporation, and on July 15, 1889, it was adjudged to be dissolved by an order of the judge of a state court in St. Joseph, its officers were enjoined from further managing or conducting its affairs, receivers of its property were appointed, and its business was directed to be wound up. This order was signed by the judge in vacation, and upon that ground its validity was attacked by proceedings in the Supreme Court of Missouri, with the result that the order was annulled, excepting so far as it related to the appointment of the receivers and committed to them the possession, care, custody, and collection of the property of the association and the protection thereof from attack, as to which matters the order was confirmed. State v. Phoenix Loan Association, 159 Mo. 102, SO S. W. 74; State v. Woodson, 161 Mo. 446, 61 S. W. 252. After the appointment of the receivers by the judge of the Missouri state court, a stockholders suit was instituted in the Circuit Court of the United States for the Western District of Missouri for the winding np of the insolvent institution, and an order of that court was made appointing the same receivers. Thereupon the state court, which had charge of the property of the corporation, relinquished its jurisdiction and custody, and surrendered the property to the receivers of the federal court. These receivers afterwards resigned, and Ransom N. Ridge was by the same court appointed as their successor. Afterwards ancillary proceedings were instituted in the Circuit Court of the United States for the Southern District of Iowa for the ultimate purpose of subjecting certain' property there located to the operation of the decree of the parent jurisdiction. Ridge was appointed ancillary receiver in Iowa. Shortly thereafter, and on September 10, 1902, Ridge, as receiver, exhibited his bill to the Circuit Court of the United States for the Southern District of Iowa against George F. Manker and other borrowing members of the association to enforce the adjusted equities between them and the insolvent corporation of which they were stockholders, and for the foreclosure of mortgages upon real property in Iowa given by them as security for loans which they had procured. A plea in bar was filed by Manker and the other appellees in this court. Upon consideration of the pleadings and certain admitted facts that court entered a decree dismissing the complainant’s bill, from which decree the appeal now before us was taken. The case of Manker is typical of that of each of the other appellees, and what is said herein and the conclusion reached will apply with equal force to all.</p> <p>The undisputed facts presented to the court below are as follows: Shortly after the appointment of the receivers by the judge of the Missouri state court, Manker instituted a suit in the district court of Taylor county, Iowa, against the Phoenix Association and the Missouri receivers to obtain a cancellation of the mortgage which he had executed to the association upon real property in that county. He alleged that deceit and fraud had been practiced upon him; that the mortgage and other instruments connected therewith were devices to evade the usury laws of the state; that usury had been exacted of him; and that the mortgage indebtedness had been fully paid. The association and the receivers appeared in the suit, and contested Manker’s charges upon the merits. In their joint pleading they also embodied a cross-petition and sought the foreclosure of the mortgage which Manker was seeking to have canceled. The cause was tried upon its merits. The district court found that Manker’s contentions were true, and that the Phoenix corporation was not in truth a building and loan, association. A decree was rendered that the mortgage given by Manker be canceled upon the records. It does not appear in the pleadings or in the decree of that court that any leave to sue the Missouri receivers had ever been obtained or asked for. Nor does it appear that there was any objection on the part of the receivers to the jurisdiction of the Iowa court upon that or any other ground. The mortgage so canceled is the same mortgage involved in the appeal now before us. A few months after the decree of cancellation was rendered, the association and the receivers, who had just received their appointment from the Circuit Court of the United States for the Western District of Missouri, and who had theretofore acted under the order of the judge of the state court, perfected their appeal from such decree to the Supreme Court of Iowa. In that court the decree of cancellation was contested by the receivers upon three grounds: First, upon the merits; second, that the court below was without jurisdiction. of the subject-matter; and, third, that it was without jurisdiction of the receivers because leave to sue them had not been procured from the Missouri court. While this appeal was pending and undetermined, the federal court in Missouri allowed and ordered paid to the receivers their expenses in connection with the Manker suit in the Iowa district court and in the appellate proceedings in the Supreme Court, and also allowed and ordered paid the fees and expenses of attorneys and others who had rendered services therein. The fees and expenses were accordingly paid. And while the appeal from Manker’s decree was pending and undetermined in the Supreme Court of Iowa the following occurred: Ransom N. Ridge succeeded the other Missouri receivers, and was also appointed ancillary receiver in Iowa. He instituted his suit for the forclosure of the same mortgage in the Circuit Court of the United States for the Southern District of Iowa. He was defeated, and perfected the appeal now before us. While this appeal was pending before this court, the Supreme Court of Iowa rendered its decision affirming the judgment of the lower court against the association, and reversing it as to the receivers. It held that the procurement of leave to sue the receivers of another court was a jurisdictional matter, which must affirmatively appear of record. Manker v. Phoenix Loan Association of St. Joseph (Iowa) 96 N. W. 982. At the hearing before this court the appellant, Ridge, as receiver, tendered authentic evidence of the action of the Supreme Court of Iowa, and asked that the same be made a part of the record on this appeal. At the same time it was shown that the Supreme Court of Iowa had granted a rehearing. Since the argument and the submission of the cause in this court it has also transpired that upon the rehearing and reconsideration of the cause pending in the Supreme Court of Iowa that court has affirmed the decree of the lower state court as to the receivers.</p> <p>Three questions were presented at the hearing of this appeal: (1) Should the record, as completed and filed in this court, be opened for admission of evidence of what has transpired since the appeal from the decree of the court below? In view of the decision of the Supreme Court of Iowa upon the rehearing, this question has ceased to be of appreciable importance. (2) Had the Iowa district court jurisdiction of the subject-matter" of Manker’s suit for the cancellation of the mortgage given by him? (8) Had that court jurisdiction of the Missouri receivers in the absence of an order granting leave to sue them?</p>

Petty brought an action against the Western Coal & Mining Company and the St. Louis, Iron Mountain & Southern Railway Company to recover damages claimed to have been caused by their joint trespass upon his lands. The ■coal company answered, specifically denying the trespass, and also alleging that Petty’s cause of action was barred by the statute of limitations. The ■cause was dismissed as to the railway company for want of jurisdiction.

<p>In Equity. Suit for infringement of letters patent No. 644,367, for a composition of materials for lining vessels used for storing or boiling corrosive liquids, granted to Romedius Panzl February 27, 1900. On final hearing.</p>

' In Equity. Suit for infringement of letters patent No. 535,465, for means for operating washing machines, granted to John Schroeder March 12, 1895. On motion for preliminary injunction.

<p>H Bankruptcy — Pbovable Debts — Notes of Coepobation Given in Payment foe Its Own Stock.</p> <p>A corporation has no power to purchase shares of its own stock, where the transaction renders it insolvent, and in consequence operates as a fraud on its creditors; and notes given by it in such case for a part of the purchase price are invalid, and cannot be proved against its estate in bankruptcy by the selling stockholder.</p>

<p>X. Guaranty — Construction of Contract.</p> <p>A contract executed by a builder and a lumber company on one part, which recites that they are joint contractors for the building of a house, and that in consideration of the profit on lumber which it expects to furnish for the work the company guaranties the completion of the contract, but which does not obligate the other parties to purchase lumber from it, is merely one of guaranty on the part of the company.</p> <p>2. Corporations — Powers—Contract of Guaranty.</p> <p>A corporation chartered for the purpose of buying and selling lumber and other building materials, has no power to bind itself as guarantor for the performance of a building contract by another, and such a contract is ultra vires and void, and affords no basis for a claim against its estate in bankruptcy by the owner of the building because of the contractor’s default. . •</p>

<p>At Law. On motions for direction of verdict</p>

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

<p>Application for Writ of Mandamus.</p>

<p>1. Federal Courts — Jurisdiction Must Clearly Appear.</p> <p>Tbe judiciary act of 1887-88 (Act March 3, 1887, c. 373, 24 Stat. 552; Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St 1901, p. 507]) was intended to contract the jurisdiction of the federal courts, and all doubts must be resolved against their jurisdiction.</p> <p>2. Same — Federal Question.</p> <p>If it appears from a bill filed in a federal court that in any aspect which the case may assume the right to relief may depend upon the construction of a provision of the Constitution or laws of the United States, and that such claim is not merely colorable, but rests upon a reasonable foundation, the court has jurisdiction of the cause.</p> <p>6. Same.</p> <p>A federal court is not given jurisdiction of a suit to enjoin officers of a state from a contemplated act by an allegation that such act will be in violation of the fifth constitutional amendment; such amendment being a limitation only upon the powers of Congress.</p> <p>4 States — Mode op Assessing Railroad Property — Constitutionality.</p> <p>The action of state authorities in taking the entire valuation of the property of a railroad company, without as well as within the state, and dividing it upon a mileage basis for the purpose of fixing the value of that within the state for purposes of taxation, is not in violation of the commerce clause of the federal Constitution.</p> <p>6. Same.</p> <p>An assessment of the property of a railroad company by the board of railroad assessors of the state of Arkansas, pursuant to the state statutes (Sand. & H. Dig. §§ 6464-6473), which provide the time and place for such assessment and for a public hearing, cannot be held in violation of the fourteenth amendment to the federal Constitution, as depriving the company of property without due process of law.</p> <p>6. Same.</p> <p>The provision of the fourteenth amendment to the Constitution of the United States, which prohibits any state from denying to any person within its jurisdiction the equal protection of the laws, is not violated by the failure of a state to provide for the uniform taxation of different classes of property; such matters being left within the control of the states.</p> <p>7. Jurisdiction op Federal Courts — Constitutional Question — Act op State.</p> <p>The assessment by a state board of the property of a railroad company at a higher percentage of its actual value than property of other classes is assessed, in violation of a provision of the state Constitution requiring uniform taxation of all classes of property, without statutory authority and contrary to the law of the state as declared by its Supreme Court, is not an act of the state within the meaning of the provision of the fourteenth constitutional amendment, prohibiting a state from denying to any person the equal protection of the laws; and the jurisdiction of a federal court cannot be invoked for redress on the ground that the action of the board is a violation of such provision, the remedy of the company being in the state courts.</p> <p>¶ 7. Jurisdiction of federal courts in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.</p>

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

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

<p>1. Patents — Inebingehent—Boottbees.</p> <p>The Stephens patent, No. 468,006, for a boottree, claims 1 and. 3, construed, and held valid, but not infringed.</p>

<p>1. Injunction — Use of Business Name.</p> <p>A complainant held not entitled to an injunction restraining defendant from using a company name adopted for business purposes in Philadelphia, on evidence showing prior use by them in New York, and also that complainant on their demand used such name for a considerable time only in connection with his own as agent.</p> <p>¶ 1. Use of corporate and firm names, see notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner’s Malzkaffee Fabriken v. Medicine Co., 27 C. C. A. 357.</p> <p>2. Patents — Interference with Right of Exclusive Licensee.</p> <p>Defendants, who were general agents for a patentee, from whom plaintiff had secured the exclusive right to sell the patented article in Philadelphia and vicinity, to hold good indefinitely, subject, only, to the condition that he use reasonable efforts and energy to push the sale of the goods, subsequently started a branch house of their own in Philadelphia, in which they sold the same article in competition with complainant. They afterwards acquired the ownership of the patent, and undertook to terminate complainant’s contract. Relé, that they were liable to him for the profits realized by them from the sale of the patented article in Philadelphia, and that he was entitled to be restored to his rights under his contract; there being no sufficient evidence that he had failed to perform its conditions.</p> <p>3. Same — Suit for Damages — Parties.</p> <p>Where, pending a suit to restrain interference with complainant’s rights as exclusive licensee under a patent and to recover damages therefor, defendants organized a corporation to which they conveyed their business, complainant is not entitled to relief against the corporation, unless it is brought in and made a party.</p> <p>4. Unfair Competition — Right to Protection.</p> <p>One who has wrongfully appropriated the business of a licensee under a patent, and prevented him from selling the patented article, has no standing to complain of unfair competition because of his sale of a similar article under a like name.</p> <p>¶ 4. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p> <p>5. Equity Peactice — Cross-Bills—Affirmative Relief.</p> <p>Affirmative relief in equity cannot be obtained by defendant against complainant without a cross-bill.</p> <p>¶ 5. See Equity, vol. 19, Cent. Dig. § 450. ^</p>

<p>In Equity. Suit for injunction and to quiet title. On final hearing.</p>

<p>In Equity. On motion to set aside service of subpoena.</p>

<p>1. Damages — Rules foe Measuring.</p> <p>General rules as to the measure of damages cannot be formulated to govern all cases; and where the damages in a given case may be estimated in a variety of ways, as frequently occurs, that method will be adopted which is most definite and certain.</p> <p>2. Sale — Refusal of Purchaser to Accept Article Manufactured — Measure of Damages.</p> <p>Where the purchaser refuses, without legal justification, to accept an article, manufactured on his order, when tendered, the vendor may, at his election, retain the property for the purchaser, and sue for and recover the contract price as the measure of his damages; and this rule is especially applicable where the article was made for a special use or place, and presumably would not have a market value.</p>

In Bankruptcy. Petition for appointment and recognition of John Lawton Butler as trustee. On May 2, 1904, the Eureka County Bank, Fletcher Bros., and P. H. Hjul, creditors of the Tybo Mining & Reduction Company, a corporation, filed a petition in this court praying that said corporation be adjudged a bankrupt.

<p>1. Water Companies — Liability to Owner op Property Destroyed by Fire —Violation op Contract with City.</p> <p>A water company or its receiver cannot be held liable in damages to a resident of a city, wbo was tbe owner of property therein destroyed by fire, on account of the failure to fulfill a contract with the city by which the company bound itself to furnish an adequate supply of water for the extinguishment of fires and a stipulated pressure,</p> <p>2. Statute op Frauds — Agreements Which cannot be Perpormed within One Year.</p> <p>Oral contracts between the receiver of a water company and the owner of a building and his tenant, by which the receiver, in consideration of the erection of a standpipe by the owner of the building and the payment of $50 per year in addition to meter rates by the tenant, agreed to “supply and furnish such standpipe at all times with a full, adequate, and sufficient supply of water, with sufficient pressure at all times for use in the extinguishment of fires,” are contracts which cannot be fully performed within a year, and are within the statute of frauds of Kansas.</p> <p>¶ 1. See Waters and Water Courses, vol. 48, Cent. Dig. § 301.</p>

<p>In Bankruptcy. On involuntary petition. Trial to the court, a jury having been waived by stipulation.</p>

<p>1. Habeas Corpus — Federal Courts — Discharge oe State Prisoner.</p> <p>It is only in exceptional cases that a federal court will discharge a prisoner in the custody of state officers, charged with the violation of a state statute, on a writ of habeas corpus, and thus prevent his trial in the courts of the state, even though it is alleged that such statute is in conflict with the Constitution of the United States.</p> <p>¶ 1. Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.</p> <p>See Habeas Corpus, vol. 25, Cent. Dig. §§ 40, 43.</p>

<p>1. Bankruptcy — Corporations—Petitions in Different Districts.</p> <p>A corporation is an individual within the meaning of general orders in bankruptcy No. 6 (89 Fed. v), providing that, in case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district where the debtor has his domicile; and under such rule, where two petitions are filed against a corporation, one in the state by which it was incorporated and one in the district where it does business, proceedings in the latter district will be stayed until a hearing has been had in the court of the domicile, leaving it to such court to determine under the provisions of Bankr. Act July 1, 1898, c. 541. § 32, 30 Stat. 554 [U. S. Comp. St. 1901, p. 3434], in which court the ease can be proceeded with for the greatest convenience of the parties in interest.</p>

<p>1. Building and Loan Associations — Insolvency—Accounting with Borrowing Stockholders.</p> <p>Where the loan contracts of a building and loan association are not usurious, a borrowing stockholder, on a settlement with the association after its insolvency, is not entitled to credit on his loan for premiums paid during its solvency.</p>

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

<p>1. Removal or Causes — Jurisdiction oe Federal Court.</p> <p>Where a federal court is without jurisdiction of a cause on removal, it is not conferred by the acts of the plaintiff in participating in steps taken in the suit after removal.</p> <p>2. Same — Amount in Controversy — Counterclaim.</p> <p>Whether the amount of a counterclaim set up by a removing defendant may be added to the plaintiff’s claim to give the federal court jurisdiction of the cause is at least so doubtful under the authorities as to require that court to decline jurisdiction.</p> <p>¶ 2. Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>See Removal of Causes, vol. 42, Cent. Dig. §§ 131, 220.</p>

<p>On Petition for Writ of Habeas Corpus.</p> <p>Petitioner was convicted of an offense against the laws of the state. He appealed to the Appellate Division (87 N. Y. Supp. 358) and the Court of Appeals (71 N. E. 1135) oí the state, both of which tribunals affirmed the conviction. He asks for a summary discharge from custody on the ground that the statute or statutes under which sentence was imposed are ex post facto laws, having been passed since the offense was committed, and therefore obnoxious to the Constitution of the United States.</p>

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

<p>In Bankruptcy. Sur petition of trustee to stay sheriff’s sale ©f personal property.</p>

<p>1. Bankruptcy — Proof of Claims — Form.</p> <p>A claim against a bankrupt is not entitled to consideration unless proved in accordance with the provisions of the act and the forms prescribed thereunder.</p> <p>2. Same — Claim to Property — Conditional Sale.</p> <p>A reservation of -title to property in a contract, which amounts, in effect, to one of conditional sale, and which is void under the laws of the state for want of registry, except as between the parties, is ineffective as against the trustee in bankruptcy of the purchaser.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent Dig. § 519.</p>

These were actions at law prosecuted by plaintiffs in error, as creditors of the Lombard Investment Company, a Kansas corporation (called herein the “Kansas Company”), against defendants in error, as stockholders of that company, to enforce the additional or double liability imposed by the Constitution and statutes of Kansas upon stockholders in corporations organized under the laws of that state, and to enforce a claimed unpaid subscription to additional stock issued by the…

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

In Equity. Suit for infringement of letters patent No. 523,111, issued July 17, 1894, and No. 592,134, issued October 19, 1897, both granted to James L. Eck, for improvements in knitting machines. On final hearing.

At Law. On demurrer to complaint. This is an action to recover damages for the death of William Whitten, alleged to have been caused by the wrongful act, neglect, and default of the defendant.

<p>In Bankruptcy. On rule against bankrupt for contempt.</p>

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

<p>1. Seamen — Allowance fob Reduction of Pbovisions.</p> <p>Evidence held to sustain the claim of seamen that during a portion of a voyage they were not furnished provisions in accordance with the scale fixed by Rev. St. § 4612, as amended in 1898 (Act Dec. 21, 1898, c. 28, 30 Stat. 762 [U. S. Comp. St. 1901, p. 3120]), nor of good quality, and to entitle each to a recovery of one dollar a day therefor during such time.</p>

<p>1. Master and Servant — Railroads—Duty of Inspection.</p> <p>A railroad company, which adopts the customary and approved means or tests for the discovery of defects in its appliances, discharges its duty to its employés in that regard, and an injury which occurs to an employé notwithstanding must be accepted as resulting from' one of the risks of the occupation.</p> <p>2. Same — Injury of Servant — Latent Defect in Appliance.</p> <p>Where the nut on the bolt which fastened one end of a handhold on a car either came off when an employs took hold of the handhold, or had previously worked off, by reason of which the employs fell and was injured, and on the trial of an action to recover for the injury there was uncontradicted testimony of the inspector that the nuts were on and screwed down on the night previous, it was prejudicial error to refuse or to qualify an instruction that the defendant company would not be liable if the handhold pulled loose by reason of the nut coming off, and there was nothing to indicate a weakness or defect in the same, and it would not have been ascertained by ordinary care in inspecting the same.</p> <p>¶ 1. See Master and Servant, vol. 34, Cent Dig. §§ 238, 240, 242.</p>

<p>1. Libel — Transmission by Telegraph Company — Punitive Damages.</p> <p>A telegraph company cannot be subjected to punitive damages because of the transmission and delivery of a libelous message by its agents, where no malice or wrongful intent is shown on the part of either the company or its agents, other than might be inferred from the acts themselves.</p> <p>2. Damages — Evidence—Wealth op Dependant.</p> <p>In a case where the jury are not warranted in awarding exemplary damages, evidence to show defendant’s wealth is 'inadmissible.</p> <p>¶ 2. See Damages, vol. 15, Cent. Dig. § 499.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>This is a bill to restrain infringement of patent No. 480,093, to Henry Higgin, for certain improvements in band-shells for wheel hubs. The claims of the patent are as follows:</p> <p>“(1) As an article of manufacture, a shell for hub-bands, having an in-turned flange adapted to take over the point of the hub-band, and provided with an annular depression, substantially as and for the purpose specified.</p> <p>“(2) As an article of manufacture; a shell for hub-bands, adapted to engage with the point of the hub-band, provided with an annular depression, and having a corrugated or knurled portion between its outer end and the annular depression, substantially as and for the purpose specified.</p> <p>“(3) The combination, with a hub-band having an annular groove, of a shell adapted to engage with the point of the band, and provided with an annular depression adapted to take into the groove on the band, substantially as and for the purpose specified.</p> <p>“(4) The combination, with the hub-band, B, having groove, b', and bead-ring, b, of the shell-band, C, having flange, c, and depression, c', and adapted to abut against the bead-ring of the band, substantially as and for the purpose specified.”</p> <p>The object of the inventor was to provide a self-securing band-shelL</p> <p>Figures 1 and 2 of the patent are shown below:</p> <p> </p> <p> </p> <p>In Ms specifications the inventor says of these figures:</p> <p>“A represents a wheel-hub, and B a hub-band. O is a band-shell, preferably of annealed brass, adapted to take over and closely embrace the band. The shell has an intumed flange, c, adapted to take over and into the point of the band, and a groove or depression, c', adapted to take into a corresponding groove or depression, b', in the band.” He describes his shell as secured to the band “by pressing it thereon until the depression in the shell takes into the depression in the band, the shell having sufficient spring to insure its closing tightly over the band.” He adds: “The joint thus made locks the shell in position, and affords a simple and efficient means of securing it in position, without requiring the use of special tools or machinery.” In respect to the grooves in the band necessary to secure this sort of locking, he says: “The bands may be manufactured with the grooves ready cut, or the grooves may be made in bands, not thus provided, by simple and inexpensive tools,” etc. Only the first and second claims are in issue.</p> <p>A demurrer for want of patentable novelty was sustained, and the bill dismissed. This decree was reversed by this court upon the ground that “the presumptions of validity from the issuing of the patent were not so clearly overcome by the application of common knowledge as to warrant us in refusing to allow the complainant to go to the issue on the proof.” 40 O. O. A. 491, 100 Fed. 459. The case came on again to be heard upon pleadings and evidence, whereupon the court held the claims in issue invalid, and dismissed the bill. 1</p>

<p>1. Patents — Invention—Telephone Signaling Apparatus.</p> <p>The Scribner & McBerty patent, No. 559,411, for a signaling apparatus for telephone switchboards, is void for lack of invention, in view of the prior art, and especially, of the O’Connell patent, No. 515,531.</p>

<p>In Equity. Suit for infringement of letters patent No. 614,279, foi a tilting bin, granted to Edwin J. Walker November 15, 1898. On final hearing. .</p>

<p>1. Patents — Infringement—Design foe Bottle.</p> <p>The Jammes design patent, No. 35,027, for a design for a bottle, held to be for an invention of the patentee, valid, and infringed.</p>

<p>1. Carriers — Suit to Enforce Order of Interstate Commerce Commission —Issues.</p> <p>Where the bill in a suit by the Interstate Commerce Commission to enforce obedience to an order requiring a railroad company to desist from the enforcement of a rule promulgated by such company alleges generally that the rule is violative of the interstate commerce act, which, allegation the defendant denies, the issue thus raised extends to every possible violation of the act, and the court is not confined to the grounds or reasons assigned by the commission for its conclusion, but may, without going beyond the issue, reach a like or different conclusion on the same or other grounds or reasons.</p> <p>2. Same — Construction of Interstate Commerce Act — Prohibition of Pooling.</p> <p>Section 5 of the interstate commerce act (Act Feb. 4, 1887, c. 104 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]), which provides that “it shall be unlawful for any common carrier subject to the provisions of this act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different or competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads or any portion thereof,” prohibits “contracts” for the division of earnings, and is violated by a contract having that purpose or effect, whether or not an actual division is made.</p> <p>8. Same — “Freights” Defined.</p> <p>The word “freights” in said section is used as meaning the commodities carried, and not the compensation paid for such carriage.</p> <p>4. Same — Traffic Pool — Reservation bt Initial Carriers of Power to Route over Connecting Lines.</p> <p>A rule and practice adopted and put in force by agreement between competing railroads and their connecting lines, by which a through rate on a certain class of traffic is conditioned on a reservation to the initial carrier of the absolute and unqualified power to route the shipments beyond its own line, for the declared purpose of enabling such initial carriers to control and maintain the rate so fixed by preventing competition, either direct or indirect, between their connecting carriers, create in effect a traffic pool, within the meaning of section 5 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]) and are in violation of said section.</p> <p>5. Same.</p> <p>It is no justification of such rule and practice that they are designed to prevent, and do prevent, unlawful rebates from connecting lines to shippers. Pooling and rebates are both within the prohibitions of the act, and one cannot be lawfully employed as a preventive of the other.</p> <p>O. Same — Jurisdiction of Interstate Commerce Commission.</p> <p>An order of the Interstate Commerce Commission requiring the railroads joining in such agreement to desist from enforcing such rule and practice is not legislative in character, because the rule is embodied in the joint through tariff published by the carriers, where it is also promulgated to the public and enforced against all shippers.</p> <p>7. Same — Suits bt Interstate Commerce Commission to Enforce Its Orders.</p> <p>In a suit to enforce its orders the Interstate Commerce Commission represents the public, and its right to relief is not affected by the fact that the complainants before it may themselves have participated in practices which, were unlawful.</p>

In Equity. On bill for injunction. The city of Chicago is divided by the Chicago river and its branches, into three natural divisions, known as the south, the west and the north divisions. February 19, 1859, the general assembly of the State of Illinois passed “An Act to promote the construction of horse railways in the city of Chicago” (Laws 1859, pp. 530-532), providing as follows:. Section 1.

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

<p>1. Shipping — Breach op Charter — Damages.</p> <p>The law imposes upon a charterer who has without justification refused to accept the vessel the burden of proving in mitigation of damages that the owner could with reasonable diligence have reduced or prevented the loss or damage occasioned by his breach of the contract</p> <p>2. Same — Duty op Vessel to Accept Other Employment.</p> <p>Where a charterer without justification refuses to accept the vessel when tendered for loading, the owner is not bound to accept such renunciation of the contract, but may at his option treat it as still in force; and in such case he is not required to accept other employment for the vessel until the lay days for loading allowed by the charter have expired, and there has been an actual breach of the contract by the charterer.</p>

<p>1. Contracts — Action for Breach — Recovery for Loss of Profits.</p> <p>Where, in an action to recover for loss of profits on a contract which defendant refused to permit plaintiff to fully perform, the contract is established, and the cost of doing the work thereunder is found by the jury upon sufficient evidence, the fact that such cost would have been much less than the contract price is immaterial, and does not render a verdict for the difference objectionable as excessive.</p> <p>2. Same — Construction—When Question fob Jury.</p> <p>Where a contract for the laying of water pipe in a street required the contractor to make “all connections,” and it was necessary to make connections between the new and the old pipe, involving the expense of having the water shut off in the latter while the connections were made, the question which party was required by the contract to bear such expense is one of mixed law and fact, depending upon the intent of the parties, and the interpretation of the contract in that regard is a matter for the determination of the jury, in the light of the circumstances and conduct of the parties.</p>

<p>1. Collision — Tugs Meeting in East Rivee — Insufficient Lookout.</p> <p>A tug leaving her slip on the Manhattan side of East river, with a car float on her side, intending to turn up the river, which movement was delayed by the necessity of clearing a ferryboat coming down, which she did not see in time to remain at her slip, held in fault for a collision between her tow and another tug, also coming down on the Brooklyn side, on the ground that she should have kept a more efficient lookout, her view up the river being obscured by her tow, which would have enabled her to sooner see the ferryboat, and that, after passing the same and agreeing with the other tug to pass starboard and starboard, she failed to promptly reverse or change her course up the river. The other tug also held chargeable with contributory fault for proceeding at unlawful speed, and for failure to stop and back when it became obvious that there was danger of collision.</p>

Hearing on appeal from an order by a United States Commissioner for the deportation of a Chinese woman who was imported into the United States as a slave in violation of the immigration laws. Order vacated and prisoner discharged.

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

<p>In Admiralty. Suit to recover charter hire.</p>

<p>Petition by Bankrupt for Writ of Habeas Corpus.</p>

<p>1. Bankruptcy — Allowance oe Attorney’s Fees.</p> <p>A court of bankruptcy, In the exercise of its discretion, in the allowance of attorney’s fees from the estate will not go beyond a reasonable fee for such services as were of benefit to the estate.</p> <p>2. Same.</p> <p>An allowance by a referee of $50 to a bankrupt’s attorney and $200 to the attorney for creditors from an estate having $2,000 for distribution ¿p-proved.</p>

<p>1. Admibaxty— Suit in Personam — Service oe Pbocess.</p> <p>A citation in admiralty in a suit in personam should be personally served on the defendant, or, if he cannot be found, by an attachment of his property, in accordance with admiralty rule 2. Service by leaving a copy of the citation with a servant at defendant’s residence is not sufficient.</p>

<p>1. Bankruptcy — Liens—Recording after Bankruptcy of Debtor.</p> <p>A lien otherwise valid, which is required by a statute of the state to be recorded within 12 months, is valid and will be protected if recorded within that time, although after the bankruptcy of the debtor.</p>

<p>In Admiralty. Action to recover for damage to cargo.</p>

<p>3. Indians — Wbongful Allotment of Bands — Recoveby by Heib of Pebson Entitled to Allotment.</p> <p>Where a selection of lands for allotment has been made by an Indian, and his right to their allotment to him has attached, the act of the allotting commissioners in wrongfully allotting them to another cannot operate to cut off the heirs of the person entitled to the allotment, who, under the act under which the allotment was made, succeed to his interest.</p>

<p>L Indians — Allotment of Lands — Recovery of Lands from Divorced Wife.</p> <p>Plaintiff, an Indian of the Walla Walla tribe, selected and claimed the allotment to him of 160 acres of land in the Umatilla reservation as the head of a family consisting of himself and his wife. He alleged that, through the misrepresentation of his wife that she was a single woman, 80 acres of the tract so selected was allotted to her, and the remainder, only, to him as a single person. His wife afterward obtained a divorce. Held, that the extra allotment of 80 acres to which plaintiff was at the time entitled under the law resulted from his status as a married man, and that after he had lost such status, presumably through his own fault, he had no standing in equity to recover from his wife the land which, if allotted to him, would have been on her account, if not in her right.</p>

<p>In Equity. Suit by Indian to recover allotted lands. On demurrer to bill.</p>

<p>1, Aliens — Exclusion of Immigrants — Minor Children of Naturalized Father.</p> <p>The status, as aliens, of children bom in a foreign country of alien parents is not changed by the naturalization of their father as a citizen of the United States by taking out his second papers while the children are detained in custody as immigrants at Ellis Island, and they remain subject to exclusion under the immigration laws for a dangerous contagious disease contracted before their embarkation; such children not being affected by Rev. St. § 2172 [U. S. Comp. St 1901, p. 1334], which provides that the minor children of persons duly naturalized “if dwelling in the United States” shall be considered as citizens thereof.</p>

<p>1. Fraudulent Conveyances — Voluntary Deed from Husband to Wife— Presumption of Fraud.</p> <p>A conveyance of land from a husband to his wife for a recited consideration of $1 will be deemed voluntary by a court of equity, but it is not for that reason alone conclusively presumed fraudulent and void as against existing creditors of the husband, nor will it be set aside at their suit under a statute which makes void conveyances made to defraud creditors merely because it is without consideration, where it is shown that in fact there was no fraudulent intent.</p> <p>S. Same — Suit to Set Aside.</p> <p>A British subject, who resided on a farm in Florida, made a voluntary conveyance of the same to his wife, and afterward returned to England. At the time he was liable with others on certain notes given in Florida, which were secured by a conveyance to trustees of property owned by the makers jointly, and of greater value than the notes. He was wholly solvent, but had no other property of value in the United States. Held, that the conveyance was not fraudulent, and would not be set aside as such at suit of the holder of the notes who obtained judgment thereon by default in an action by attachment, it not being shown even that the property conveyed as security and remaining undisposed of was inadequate to pay the debt</p>

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

<p>In Error to the Circuit Court of' the United States for the Eastern District of Louisiana.</p> <p>The plaintiff in error, Julius Kessler & Co., was, in 1900, and still is, a corporation created under the laws of West Virginia, with authority under its charter to operate distilleries, make and sell whisky and all other distillery products, with power to warehouse grain and distillery products as a general public warehouseman, and, as such, owned and operated a large number of distilleries in Kentucky and elsewhere outside of Louisiana, and sold and disposed of its manufactured whisky in interstate trade, and had a large quantity of whisky so held in bonded warehouse, subject to release from' all government claim or possession on payment of the internal revenue tax of $3.10 per proof gallon, to be held in their own distillery bonded warehouses, to be released as soon as tax paid.</p> <p>On the 20th of October, 1900, defendants in error, constituting the firm of Perilloux & Co., at New Orleans, entered into an agreement with the agents of plaintiff in error by which they purchased 225 barrels of whisky, in bond in the Kentucky distilleries, in the warehouses of plaintiff in error, such warehouses being, as above stated, also United States bonded distillery warehouses, situated in Kentucky, the whisky being non-tax paid.</p> <p>The sale was for an agreed price for the whisky in bonded warehouse, non-tax paid, and defendants signed the following statement and memorandum of the sale, which is in the record, designated “Kessler-A,” the following being a copy:</p> <p>“Kessler-A.</p> <p>“No........ New Orleans, October 20th, 1900.</p> <p>“Julius Kessler & Co. (Inc.), Ashland Block, Chicago—</p> <p>“Gentlemen: I have this day bought of you through your Mr. Brady &</p> <p>Gerson 225 barrels of whisky in bond, and have received warehouse receipt covering said 225 barrels, as follows:</p> <p> </p> <p>“Settlement: Cash $....... and notes for $.......as follows:</p> <p>$.......due......, 190-; §.......due.......190-.</p> <p>“Terms:......4 mo......... 6 mo.,......9 mo.......190-. ......15,</p> <p>......15,.......190-. $.......18......months.......190-.</p> <p>“Divided equally.</p> <p>“Subject to the approval of your home office.</p> <p>“E. P. Perilloux & Co.”</p> <p>At the time of this sale the total price of the goods sold, and the amount to be paid therefor in notes of defendants in error, could not be accurately stated, nor could a full description of brands, and amount of gallonage in proof gallons, be given as to the 225 barrels sold, and therefore was not set out in this writing, for the reason that Mr. Brady, the agent of Kessler & Co., had not with him warehouse receipts for all of the brands purchased by defendants in error, and was compelled to write that corporation at Chicago for the required warehouse receipts, as well as for approval of the sale, and its terms by the proper officer of the corporation.</p> <p>On the 27th of October, 1900, the sale having been approved, Kessler & Co. transmitted to Mr. Brady at New Orleans, he being their agent, warehouse receipts for 225 barrels of the whisky sold, also receipt for 2 barrels of whisky thrown in at the time of the sale. These receipts covered all of the goods purchased by defendants in error on October 20th, each receipt covering five barrels of whisky, with the exception of the one covering the two barrels given as bonus, and were all in the same form and subject to the same condition as the Atherton & Co. distillery whisky, as follows, to wit:</p> <p>“8310 J. M. Atherton & Co. Stored in</p> <p>“Number D</p> <p>“New Haven, Kentucky. Warehouse;</p> <p>“[25 cents Int. Rev. Stamp Canceled.]</p> <p>“New Haven, Ky., Jan. 2, 1900.</p> <p>“Received and stored in our United States Bonded Distillery Warehouse of our Atherton Distillery No. 87 situated in New Haven in the 5th District of Kentucky, Five (5) Barrels Atherton Rye Whisky, to be held by us on storage and on account of and subject to the order of E. F. Perilloux & Co., deliverable only upon payment of the United States taxes and all other taxes and charges and storage on said whisky at the rate of five (5) cents per barrel per month, from' date of entry and payment of the purchase price of said whisky or of the notes given therefor, and upon the return of this receipt properly endorsed and the written order of the holder thereof. Loss or damage by the elements, fire, riots, accidents, evaporation, leakage, shrinkage or natural decay shall be at the risk of the owner or holder of this receipt.</p> <p>“[Stamped on face:] Storage and all charges paid to Nov. 1, 1900.</p> <p> </p> <p>“[Stamped across face:] Unbonded Dec. 12, 1902.</p> <p>“Julius Kessler & Co. (Incorporated),</p> <p>“By Julius Kessler, President,</p> <p>“Proprietors of the J. M. Atherton & Co., Distillery No. 87.”</p> <p>All of the receipts contained the so-called “purchase clause” as conditions of delivery.</p> <p>With these receipts in his possession, Mr. Brady, for the plaintiff in error, completed the deal of October 20th on the 27th of October, 1900, by delivering warehouse receipts for the whisky to Perilloux & Co., when that firm, in payment therefor, as the purchase price thereof, .at the same time delivered to plaintiff in error their promissory notes for the agreed price of the whisky contained in 225 barrels for which the warehouse receipts had been delivered (2 barrels of whisky seem to have been added to the 225 as bonus on the trade, making 227 barrels in all).</p> <p>It does not appear that there was any difference or dispute between the parties as to the terms of payment, the defendants in error making their notes in the total sum of 83,086.10 as the total price payable' for the goods; The purchase price oí the whisky was not paid in a single note for the entire amount of the price, but the price was divided up into sums satisfactory to defendants in error, and notes given for each amount. All were dated October 27, 1900, each being for a portion of the agreed purchase price, each note maturing at a different date, varying from 4 months to 18 months.</p> <p>After the sale of the whisky had been concluded and the notes given for the goods delivered, as appears by the evidence made part of the record by bills of exception, the following further agreement was entered into, to wit:</p> <p>“New Orleans, La., October 27, 1900.</p> <p>“This agreement entered into this 27th day of October, by and between Julius Kessler & Co., of Chicago, New York and Louisville, Ky., parties of the first part, and E. F. Perilloux & Co., of New Orleans, parties of the second part.</p> <p>“We agree to tax-pay at any time a reasonable amount of the goods bought by Perilloux & Co. from us this date, and at any time that it is necessary for Perilloux & Co. in their business to ask for an extension, we agree to grant it, the first 90 days without interest, and if extended beyond that time, to charge six per cent, interest.</p> <p>“[Signed] Julius Kessler & Co.</p> <p>“[Signed] E. F. Perilloux & Co.”</p> <p>This action was commenced December 31, 1901, by the ordinary form of petition on two unconditional promissory notes, one of the notes of date October 27, 1900, for $1,021.63, due 12 months after date, being one of the original series of notes given for the purchase price of the 225 barrels of whisky in bond; the other note of date July 30, 1901, for $999.50, due 3 months after date, is a renewal of one of the original purchase price notes, renewed at the request of defendants in error at the date of the maturity of the original note renewed.</p> <p>On January 9, 1902, there was a plea of lis pendens. Before this plea was disposed of in any manner, and on the 25th of the same January, the defendants filed another plea of exception, setting up article 264 of the existing Constitution of Louisiana, given in the plea as follows:</p> <p>“No domestic or foreign corporation will do any business in this state without having one or more known places of business and an authorized agent or agents in the state upon which process can be served.”</p> <p>By agreement of counsel those pleadings were tried by the court with written waiver of jury, and both overruled on February 18, 1902.</p> <p>On application of counsel for defendants in error, the court opened the decree, and allowed the defendants to file a more extended and elaborate plea or exception attempting to cover the same ground, and this time verified .under oath. The new pleading was tried and overruled February 19, 1902.</p> <p>On March 19, 1902, the defendants filed another exception to the jurisdiction, in substance averring that there was no rations persona jurisdiction, because, while the petition alleged that the plaintiff in error was a corporation created by West Virginia, the petition did not allege that the plaintiff corporation was not also a Louisiana-created corporation. This exception seems to have been acted on and overruled by the court on the 8th of April, 1902 (127 Fed. 1011). The 'defendants on April 10, 1902, filed a lengthy pleading entitled “Answer and Reconventional Demand.” The matters averred and relief prayed for in this pleading are sufficiently set forth in the opinion of the court.</p> <p>Under the petition and above-entitled answer and reconventional demand, the case proceeded to trial before the court and jury, resulting in a general verdict for the defendants, but no verdict on the reconventional demand of the defendants. During the trial exceptions were taken to the rulings of the court on the admission of evidence, to the directions to the jury, and to the refusal to give certain requested directions — all shown by duly certified bills of exception.</p> <p>The plaintiff in error moved for a new trial, and the same was denied, whereupon this writ of error was sued out.</p>

<p>On Petition for Reargument. Mandate amended.</p>

<p>1. Taxation — Railroad Corporation — Construction op Charter.</p> <p>In the provision of section 15 of the charter of the Georgia Railroad Company (now the Georgia Railroad & Banking Company), granted by the Legislature of Georgia in 1833 (Laws 1833, p. 264), that “the stock of said company and its branches shall be exempt from taxation for and during the term of seven years, * * * and after that shall be subject to a tax not exceeding one-half per cent, per annum on the net proceeds of their investments.” the word “stock” means the capital of the corporation, and not the shares of stock in the hands of the individual owners, and the provision establishes the limit of taxation of the corporation upon its capital stock.</p> <p>2. Res Judicata — Matters Concluded by Judgment.</p> <p>The Supreme Court of Georgia having decided in a suit between the state and the Georgia Railroad & Banking Company that the charter of the company created a contract which precluded the state from imposing a tax upon the company in excess of one-half of 1 per cent, of its net earnings, (hat question is res judicata between the parties, and the decision concludes the state in any subsequent suit, although it involves taxes levied for a different year or under a different statute.</p> <p>8. Taxation — Limitation by Charter op Railroad Company — Tax on Franchise.</p> <p>The provision of the charter of the Georgia Railroad & Banking Company that its stock shall be subject to a tax not exceeding one-half per cent, per annum on its net earnings imposes a limit to ail taxation to which the company may be subjected on account of the capital ipvested in the enterprise contemplated by the charter or its franchise to1 carry on such enterprise and, in view of the contract created by such charter provision, the state cannot impose a tax on the company’s franchise under the franchise tax act of December 17, 1902 (LawB 1902, p. 37).</p>

<p>1. Railroads — Suit to Foreclose Mortgage — Intervention by Individual Bondholders.</p> <p>It is a well-settled doctrine in the federal courts that, where the fitness of the trustee in a railroad mortgage to represent the interests of the bondholders is not questioned, nor its conduct in efficiently, honestly, and impartially discharging its duty assailed, individual bondholders are neither necessary nor proper parties to a suit to foreclose the mortgage, and that they will not be permitted to intervene therein.</p> <p>2. Same — Legality of Substitution of Trustee.</p> <p>Where a railroad mortgage makes provision for a change of trustee, and a change has been made in apparent conformity to such provision, its legality cannot be collaterally determined on the application of individual bondholders to be permitted to intervene in a suit to foreclose the mortgage instituted by the substituted trustee.</p> <p>8. Same — Objection to Fitness of Trustee.</p> <p>Individual holders of a small minority of the bonds of a railroad company will not be given leave to intervene in a suit to’ foreclose the mortgage, to the displacement of the trustee who has instituted the suit on request of a majority of the bondholders, where no fraud or misconduct on the part of the trustee is charged, and the only objection to it is that it is unsuitable to conduct the suit because of the fact that certain of its directors are also bondholders and stockholders of the defendant, the court having ample power to hear them as parties in interest, although not formal parties, as to any action taken by the trustee prejudicial to their rights.</p> <p>4. Same.</p> <p>A court should in any case be slow to interfere with a mortgage trustee in foreclosing the mortgage, in the apparently lawful discharge of its duty, at the instance of a comparatively small number of minority bondholders, and least of all should it do so when it appears that such bondholders are not themselves seeking actual relief, but are attempting to obstruct the trustee in the discharge of what it deems its duty.</p>

In Bankruptcy. Action by a trustee to recover the proceeds of a policy of insurance on the life of the bankrupt. This cause having been submitted to the court, a trial by jury having been waived, the court made the following findings of facts: The plaintiff is trustee in bankruptcy of the estate of B. F. McKenzie, who died after the adjudication in bankruptcy.

<p>L Seamen — Injury in Service — Liability of Vessel for Failure to Furnish Proper Treatment.</p> <p>Libelant, a seaman on a steamer on a return voyage from a Mexican port to New York, fell and broke bis ankle when off Cape Harteras. The vessel proceeded to New York, which was the end of the voyage, and was reached 48 hours after the injury. A doctor was called, who considered it a sprain, and libelant was not sent to a hospital, although he requested to be, but was kept in his bunk in the forecastle, and the vessel started on another voyage. After reaching Norfolk, at his insistence other physicians were called, and 10 days after the injury he was taken to the hospital. It was then found that the bones had improperly united, and they were broken again and reset. Libelant suffered severe pain, was permanently crippled, and remained in the hospital for six months. Held, that the vessel was not at fault for not deviating from its course to take libel-ant to Norfolk after the injury, but was liable for the failure to procure prompt and efficient treatment and care at the end of the voyage, and libelant was awarded $500 damages in addition to the expense of his cure.</p>

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

<p>1. Receiveb — Settlement of Accounts.</p> <p>Where a receiver is charged on his accounting with the value of an asset which he disposed of, taking the obligation of the purchaser, which he substituted therefor, and which has not been paid, a settlement between the parties interested in the estate and such purchaser, by which he is permitted to discharge his debt for less than its face, will be permitted and approved over the objection of the receiver only on condition that he be credited with its full face value, it not having been determined that such amount cannot be collected.</p>

<p>1. Abatement — Another Action Pending — State and Federal Courts.</p> <p>The pendency in a state court of a prior action between the same parties for the same cause furnishes no ground for an abatement or for a stay of proceedings in a subsequent action brought by the same plaintiff in a federal court, where no conflict arises between the courts over the custody or dominion of specific property.</p> <p>Wherever, however, one of the courts secures by proper process the custody or dominion of specific property which it is one of the objects of the suit in the other court to subject to its judgment or decree, the latter action should not be dismissed, but it should be stayed until the proceedings in the court which first obtained jurisdiction of the property are concluded, or ample time for their termination has elapsed.</p> <p>2. Federal Courts — Exclusive Jurisdiction op State Courts.</p> <p>The jurisdiction of the federal courts may not be limited or impaired by state legislation which confers exclusive jurisdiction of litigation upon state courts or prescribes exclusive methods of invoking tliat jurisdiction.</p> <p>Wherever the citizens of a state may secure a trial of their controversies by its courts of general jurisdiction either by original process, or by appeal, or by other proceedings, the citizens of different states may obtain the trial of like controversies between them' by some appropriate action in the federal courts.</p> <p>3. Same — Federal Jurisdiction not Appected by City Charter.</p> <p>Section 80 of the charter of Duluth, which provides for appeals from the allowance or rejection of claims against that city to the district court of St. Louis county, Minn., and prohibits the payment of such claims while such appeals are there pending, does not restrict the jurisdiction of the federal courts over claims of citizens of other states, or the power of those courts to enforce their judgments upon such claims, and actions by original process in the federal courts may be maintained in controversies over such claims without presenting them to the city council.</p> <p>4. Mandamus — Circuit Courts op Appeals — Power to Issue.</p> <p>The United States Circuit Courts of Appeals have jurisdiction to issue writs of mandamus in the exercise of, and in aid of their appellate jurisdiction.</p> <p>5. Same — Test oe Appellate Jurisdiction.</p> <p>The test of appellate jurisdiction in the exercise and aid of which the Courts of Appeals may issue writs of mandamus is the existence of that jurisdiction, not its prior invocation. It is the existence of a right to review by a challenge of the final decisions or otherwise in the cases or proceedings to which the applications for the writs relate, and not the prior exercise of that right by appeal or by writ of error.</p> <p>6. Same.</p> <p>Appeals from the allowance by the city council of Duluth of the claims of a citizen of the state of West Virginia were taken by the city to the 'district court of St. Louis county, Minn., and the charter of the city prohibited its officers from paying the claims pending the appeals except upon the order of that court. Thereupon the petitioner sued the city upon its claims in the federal court. The judge who was holding that court stayed all proceedings in the case pending in it until the final determination of the appeals in the state court.</p> <p>Held, this was error, remediless otherwise than by the writ of mandamus. The Court of Appeals has jurisdiction to issue its writ of mandamus, and to command the judge holding the Circuit Court to vacate the stay, and to proceed with all convenient speed to try and adjudicate the controversy and to enforce the judgment upon it. Writ accordingly issued.</p> <p>¶ 1. See Abatement and Revival, vol. 1, Cent. Dig. § 87.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Collision — Vessels Meeting — Steameb and Schooner in Tow.</p> <p>A schooner passing down the St. Clair river in tow and a meeting steamer both held in fault for a collision between them; the former on the ground that she failed to follow the towing steamer, and the latter on the ground that she should have sooner observed the course of the schooner and avoided the collision by giving more room, and also because, as found by the trial court on conflicting evidence, she sheered toward the course of the meeting vessels after passing the towing steamer.</p> <p>2. Same — Violation oe Rule.</p> <p>A steamer descending the St. Clair river with a tow, although she failed to obey the then recently issued order of the War Department, which required her to keep on the western, or American, side of the channel, but signaled an ascending steamer her intention to pass starboard to starboard, and passed down on the range line in the center of the channel, held not, for that reason, in fault for a collision between her tow and the ascending steamer, where the latter assented to the signal, and there was ample room for her passage between the course of the descending steamer and the western side of the channel.</p> <p>Laeombe, Circuit Judge, concurring on the ground that the question of fault for violation of the rule was not raised by the pleadings.</p>

<p>1. Corporations — Dissolution—Effect of Statutory Insolvency Proceed-</p> <p>ings.</p> <p>Judicial proceedings'on petition of the bank commissioners, under Pub. St. N. H. 1901, c. 162, for winding up a banking corporation, in which an assignee is appointed in whom the title to all its property vests, do not operate to dissolve the corporation at once so- as to preclude the rendition of a judgment against it by a federal court.</p> <p>2. Federal Courts — Action against Corporation — Effect of Statutory Insolvency Proceedings in State Court.</p> <p>The vesting of title to the property and assets of a corporation in a trustee or assignee appointed by a state court in proceedings to wind up the corporation by virtue of a state statute, and the appointment of a commissioner to examine and allow claims against it, do not deprive a foreign creditor of the corporation of the right to sue and obtain judgment against it in a federal court, whatever may be the proper proceeding for its enforcement</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steamship liable for damages to libelant’s goods — giant beans in bags — transported from Marseilles to New York in February, 1902. The opinion of the District Judge is reported in 125 Fed. 425.

<p>1. Patents — Anticipation—Construction.</p> <p>A patent cannot be supported against a claim of anticipation by features not referred to, claimed, or even suggested therein, and not a function of the thing patented, except when used in a special combination.</p> <p>2. Same — Mold fob Boot and Shoe Heels.</p> <p>The Coburn patent, No. 364,217, for a mold for molding heels for boots and shoes, held void for anticipation.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p> <p>The following is the opinion of the Circuit Court by Lowell, District Judge:</p> <p>This is a bill in equity to restrain the infringement of letters patent No. 46.1,793, granted to Henry Briggs, October 20, 1891, for improvements in the method of forming chain-stitches in the sewing of shoes. The only claim is as follows:</p> <p>“The method of forming a chain-stitch, which consists in passing a loop of thread through a hole in the materials, inserting an instrument through the loop and holding the instrument in a second hole in the materials at the point desired for the next stitch, drawing on the supply end of the thread, thus drawing the loop that is now around the instrument against the material, forming another loop from the supply-thread on the opposite side of the materials, removing the instrument from the second hole in the materials and from the drawn-down loop, and passing the second loop made from the supply-thread through the second hole in the materials and through the drawn-down loop, substantially as described.”</p> <p>The hearing is upon motion for a preliminary injunction.</p> <p>By agreement under seal, the defendant has admitted the validity of the patent and the complainant’s title thereto. As stated in the defendant’s brief, “The single defense open to defendant is that of noninfringement.”</p> <p>The defendant does not seriously dispute that his machine alleged to infringe is substantially undistinguishable from the commercial machine manufactured by the complainant, but he denies that either of these machines embodies the patent in suit. The difference relied upon seems to be this: That in the patent the strain involved in setting the stitch is applied altogether by the pull-back action of the take-off, while in the defendant’s machine this strain is applied only in part by the take-off, and in part by the direct action of the threaded needle. But even in the patent the needle must apply some strain, and| it seems, must have some operation in setting the stitch, though this operation may be slight. “Drawing on the supply end of the thread, thus drawing the loop that is now around the instrument against the material,” cannot draw the thread to quite the needed degree of tightness so long as the needle remains in the loop. Some drawing must be done by the direct pull of the needle after it is released from the loop. The gist of Briggs’ invention is the substantial taking up of slack and setting the stitch by the take-off, not the withdrawal of absolutely all pulling function from the needle. The difference between the patent and the defendant’s machine is one of degree, and even in degree the difference must be small, since, if the take-off first draws the loop with the maximum tension permitted by the resistance of the supply, then the subsequent effect of the needle’s pull must be small. That this maximum tension is applied by the defendant’s take-off is positively testified to, and the testimony is not positively contradicted, so far as I can discover, or the defendant’s counsel has pointed out.</p> <p>Motion for injunction granted. Injunction to issue.</p>

<p>1. Patents — Violation of Injunction against Infringement.</p> <p>One who, with, knowledge that others have been enjoined from infringing a patent, takes over their business in the sale of the infringing ar- • tide, and continues it in collusion with them' to evade the injunction, by which acts they profit, is punishable for contempt for violation of the injunction, whether actually employed and paid by them or not.</p>

<p>1. Bankruptcy — Transfer of Proceedings — Sufficiency of Grounds.</p> <p>A court of bankruptcy of the’ district in which a bankrupt is domiciled, which, by reason of such fact, and the priority of the proceedings and adjudication therein, has acquired jurisdiction to the exclusion of the court in another district, in which proceedings -were also instituted, is required by general orders in bankruptcy No. 6 (18 Sup. Ct. iv) to “retain jurisdiction over all proceedings therein until the same shall be closed,” unless it is satisfied that it is for the greatest convenience of the parties in interest that the case should be transferred. On that issue the burden of proel rests upon those asking the transfer, and where they are a minority of the creditors, representing only a small part of the indebtedness, a transfer is not warranted by the fact alone that the greater part or all of the bankrupt’s property is in the other district; the court having power to order its sale there, if deemed best</p>

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

In Bankruptcy. On petition of widow of bankrupt for assignment of dower. Sallie A. McKenzie, widow of the bankrupt, filed her petition with the referee for an assignment of dower in the real and personal property of the deceased bankrupt. At the request and by consent of both parties, the widow and the trustee, the petition was certified to the court for determination without first submitting it to the referee.

<p>In Bankruptcy. On exceptions to report of C. A. Van Wormer, referee, overruling objections to bankrupt’s discharge.</p>

<p>1. Tbade-Marks — Foreign Name of Article.</p> <p>Tbe' word “Parcheesi” cannot be monopolized in the United States as a trade-mark for a game introduced from India, where it had long been known by a name similar in sound.</p> <p>2. Same — Unfair Competition.</p> <p>Where, however, complainant introduced the game into this country 35 years ago, and has made and sold it since that time under the name “Parcheesi,” which he also registered as a trade-mark therefor in good faith, a later manufacturer, which not only appropriated the name solely because it had become known and popular through complainant, but also incorporated complainant’s name in its own corporate name without any apparent reason therefor except to deceive the public as to the origin of its goods, is chargeable with unfair competition.</p> <p>¶ 2. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>I. Shipping — Charter to Carry Mahogany Logs — Refusal to Take Cargo Offered.</p> <p>Evidence considered, and held to establish that a cargo of mahogany logs tendered for loading to a schooner under a charter were not of unusual size In the trade, and that the refusal of the master to take any except smaller logs selected by him was not justified, and rendered the vessel liable to the charterer In damages, whether such refusal was due to the unsuitableness of the vessel for the service for which she was chartered or to her want of proper tackle for loading.</p>

<p>1. Bankruptcy — Property Passing to Trustee — Copyright.</p> <p>A copyright for a publication held under an absolute assignment from the author to the assignee, his successors and assigns, is property of the assignee, which passes to his trustee-in bankruptcy.</p>

<p>2L Bankruptcv — Exceptions to Distribution — Time fob Filing.</p> <p>Exceptions to a proposed distribution of a bankrupt estate must be filed before the final decree of confirmation is entered, and exceptions, an,d a petition for review based tbereon, not filed nntil after such confirmation and after the final dividend has been distributed in accordance therewith, will not be considered.</p>

<p>1. Indians — Suit to Recover Allotted Lands — Jurisdiction and Parties. The jurisdiction of suits by Indians, involving their right to lands allotted under any law or treaty, conferred on the circuit courts of the United States by Act Aug. 15, 1894 (28 Stat. 305), as amended by Act Feb. 6, 1901 (31 Stat. 760), is exclusive, but in all such actions the United States must be made a party defendant as therein provided.</p>

<p>1. Removal of Causes — Divebsity of Citizenship.</p> <p>A suit brought in New York by a nonresident against a citizen and resident of New York and a citizen and resident of New Jersey — service being made on both in New York — is not removable by either defendant on the ground of diversity of citizenship; the first being precluded by his residence in the state, and the second because the suit could not have been begun in the federal court in New York against him by service made in that state.</p> <p>¶ 1. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249: Mason v. Dullagham, 27 C. C. A. 298.</p> <p>See Courts, vol. 13, Cent Dig. § 813; Removal of Causes, vol. 42, Cent. Dig. i 89.</p>

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

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

<p>Appeal' from the Circuit Court of the United States for the Eastern District of Texas. On petition for rehearing.</p>

<p>Motion for Further Bill of Particulars. F. L. Crawford, for the motion. Jno. C. Wait, opposed.</p>

<p>Appeal from a decision of the Board of United States General Appraisers. G. A. 5443, T. D. 24,721. Charles Duane Baker, Asst U. S. Atty. W. Wickham Smith, for importer.</p>

<p>Appeal from a decision of the Board of United States General Appraisers. G. A. 5437, T. D. 24,460. Howard T. Walden, for importer. Charles Duane Baker, Asst U. S. Atty.</p>